| Applicant name | MUKHTARLI |
| Applicant type | 1 |
| Number of applicants | natural person |
| Country | AZERBAIJAN |
| Application no. | 39503/17 |
| Date | 05/09/2024 |
| Judges | Mattias Guyomar, President, Lado Chanturia, Carlo Ranzoni, Lətif Hüseynov, María Elósegui, Kateřina Šimáčková, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | No legal basis |
| Type of privacy | Informational privacy |
| Keywords | Search mobile phone |
| Facts of the case | he applicant complained that the search of the contents of his mobile telephone by the investigating authorities had amounted to a breach of rights protected under Article 8 of the Convention |
| Analysis | While accepting that some circumstances may justify the taking of urgent actions by the investigating authorities in the absence of a court decision, the Court observes that in the instant case the Government have not put forward any convincing argument to prove the existence of such circumstances . In any event, the Court does not see how such circumstances could have existed in the present case, given that the search of the contents of the applicant’s mobile telephone was conducted two days after his arrest, which left the investigating authorities sufficient time in which to obtain prior judicial authorisation. The Court further notes that it has already held that the absence of a prior judicial warrant may be counterbalanced by the availability of an ex post factum judicial review of both the lawfulness and necessity of the measure in question. In particular, a review by domestic courts of a measure violating Article 8 shall provide an appropriate remedy for the person concerned, provided that the judge effectively reviews the lawfulness of and justification for the contested measure and, where appropriate, excludes from the criminal proceedings the evidence collected. However, in the present case there was no review of the investigating authorities’ actions by the domestic courts, which refused to examine the applicant’s complaint concerning the lawfulness and necessity of the search of the contents of his mobile telephone. The Government also failed to provide any explanation as to why the domestic courts had refused to conduct such a review. |
| Other Article violation? | 3 and 5 |
| Damage awarded | (a) that the respondent States are to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts: (i) the Georgian Government are to pay the applicant EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) the Azerbaijani Government are to pay the applicant EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) the Georgia Government are to pay the applicant EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (iv) the Azerbaijani Government are to pay the applicant EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses. |
| Documents | Judgment |