CASE OF BAŠIĆ v. CROATIA

SECOND SECTION

CASE OF BAŠIĆ v. CROATIA

(Application no. 22251/13)

JUDGMENT

STRASBOURG

25 October 2016

FINAL

25/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bašić v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Julia Laffranque, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 4 October 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22251/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Damir Bašić (“the applicant”), on 19 February 2013.

2. The applicant was represented by Mr Ž. Žganjer, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3. The applicant complained that he had been subject to unlawful secret surveillance and that evidence so obtained had been used in the criminal proceedings against him, contrary to Articles 6 § 1 and 8 of the Convention.

4. On 18 March 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1980 and lives in Slavonski Brod.

A. Special investigative measures

6. In response to a request from the police, on 26 November 2007 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta) asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to authorise the use of special investigative measures, namely tapping the telephone conversations of the applicant and several other individuals on the grounds of their suspected participation in organised drug trafficking, customs evasion, and the abuse of power and authority.

7. On 27 November 2007 the investigating judge granted the request and issued an order for the use of secret surveillance measures. His statement of reasons read as follows:

“The State Attorney’s Office for the Suppression of Corruption and Organised Crime asked the investigating judge to authorise the use of phone tapping measures under Article 180 § 1 (1) of the Code of Criminal Procedure in respect of ... Damir Bašić [and others] on the grounds that a preliminary [police] investigation suggested that these individuals were engaged in criminal activity involving the commission of offences under Articles 173 §§ 1 and 2, 298 § 2, 337 and 333 of the Criminal Code.

Having assessed the [State Attorney’s] request, and in view of [the request from the police], it is established that there is probable cause for believing that the criminal offences have been committed and that the requisite investigation in the present case could not be carried out by any other means, or would be extremely difficult. In addition, given that the matter concerns the offences enumerated in Article 181 § 1 (2) of the Code of Criminal Procedure, the request has been granted and it was decided as indicated in the operative part of this order.”

8. In the course of the investigation, the investigating judge issued several further secret surveillance orders to the same effect. In addition to the phone tapping, the investigating judge also authorised the covert monitoring of the suspects.

B. The criminal proceedings

9. On the basis of the evidence obtained by the aforementioned use of secret surveillance measures, on 2 July 2008 the police lodged a criminal complaint against the applicant and five other persons with the Slavonski Brod County State Attorney’s Office (Županijsko državno odvjetništvo u Slavonskom Brodu) in connection with suspected drug trafficking and customs evasion.

10. On the same day the applicant was brought before an investigating judge of the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu), who questioned him in connection with the charges brought against him. The applicant decided to remain silent and not give any evidence.

11. On 4 July 2008 the investigating judge opened an investigation in respect of the applicant and the other suspects in connection with suspected drug trafficking. She also ordered the applicant’s pre-trial detention.

12. After the completion of the investigation, on 25 November 2008 the Slavonski Brod County State Attorney’s Office indicted the applicant and four other persons in the Slavonski Brod County Court on charges of drug trafficking.

13. On 12 June 2009 the applicant asked the Slavonski Brod County Court to exclude from the proceedings the evidence obtained by means of secret surveillance as being unlawfully obtained. He argued that the secret surveillance had been carried out on the basis of orders which had been issued contrary to the relevant domestic law and practice of the Constitutional Court (Ustavni sud Republike Hrvatske) in that they contained no reasoning justifying the use of secret surveillance.

14. At a hearing on 18 June 2009 the Slavonski Brod County Court dismissed the applicant’s request as unfounded. At the same hearing the applicant pleaded not guilty to the charges held against him, whereas three other defendants pleaded guilty. The trial bench heard several witnesses and an expert witness and examined the reports in the case file.

15. A further hearing was held on 29 September 2009 at which the applicant reiterated his request for the exclusion of the evidence obtained by secret surveillance as being unlawfully obtained. The applicant further contended that his exact location at the moment of the alleged commission of the offence at issue should be established by obtaining the location tracking data of the mobile phone which he had allegedly used.

16. The trial bench dismissed the applicant’s request as unfounded and decided to continue with the examination of evidence. It heard two witnesses and an expert witness and adjourned the proceedings in order for the defence to obtain copies of the secret surveillance recordings.

17. At a hearing on 26 November 2009 the applicant argued that a list of incoming and outgoing calls for the mobile phones allegedly used by the defendants should be obtained in order to clarify all the circumstances of the case. The trial bench dismissed his request as unfounded and proceeded with the examination of the secret surveillance audio recordings. The defence did not have particular objections to the recordings but they expressed doubts as to the identification of one of the speakers as one of the applicant’s co-accused.

18. At a hearing on 14 December 2009 the trial bench heard further secret surveillance audio recordings. The defence had no particular objections to the recordings but requested that some additional evidence and recordings be examined at the trial.

19. Further hearings were held on 2 and 19 February 2010 at which the trial bench examined the secret surveillance recordings. The applicant reiterated his request for an expert telecommunications report to establish the location of his mobile phone at the moment of the alleged offence. The defence also challenged the credibility of a police report concerning the applicant’s surveillance, expressing doubts as to the reasons why there were no recordings accompanying that report. In this connection the trial bench heard evidence from the police officer in charge of the operation, Z.H., who explained that no recordings had been made for fear that, in the circumstances, the suspects might have noticed that they were being followed. The trial bench also heard evidence from another police officer, B.V., who explained the method of identifying the mobile phones used by the defendants. Following B.V.’s questioning, the trial bench dismissed all further requests for the examination of evidence and adjourned the hearing for the preparation of the defendants’ closing statements.

20. On 26 February 2010 the trial bench heard the parties’ closing arguments.

21. By a judgment of 1 March 2010 the Slavonski Brod County Court found the applicant guilty as charged and sentenced him to five years’ imprisonment. As to the applicant’s arguments concerning the alleged unlawfulness of the secret surveillance orders, that court held that the orders had outlined reasons for believing that the applicant had probably participated in the commission of the offence at issue and that the investigation could not have been conducted by other means.

22. The Slavonski Brod County Court further held that all doubts on the part of the defence as to the accuracy of the recordings had been clarified by questioning the police officers, who had explained the manner in which the recordings had been obtained and documented. It also found that the available police reports on covert monitoring provided sufficient information as to the defendant’s location at the moment of the commission of the offence and that there was therefore no need to obtain further evidence, such as mobile phone location data, in that respect. It therefore dismissed the applicant’s objections to the use of the evidence obtained by secret surveillance and proceeded with its detailed assessment when determining the applicant’s guilt.

23. On 21 April and 6 July 2010, relying on the case-law of the Constitutional Court ‒ according to which secret surveillance orders needed to be properly reasoned in order to satisfy the requirement of lawfulness under the relevant domestic law ‒ the applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske). He also complained about the use of the evidence thereby obtained in securing his conviction.

24. On 21 September 2010 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance judgment. It stressed in particular that the alleged lack of reasoning justifying the secret surveillance orders could not result in the unlawfulness of the evidence obtained by the use of such secret surveillance. It also held that all the relevant circumstances of the case had been properly established by the first-instance court and that the applicant’s conviction had been based on a proper and convincing assessment of evidence and the relevant facts.

25. On 23 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court complaining that his right to respect for private life and confidentiality of correspondence, as guaranteed under Articles 35 and 36 § 1 of the Constitution, had been breached by the unlawful and unjustified secret surveillance, and that his right to a fair trial under Article 29 of the Constitution had been breached by the use of the evidence thereby obtained in the criminal proceedings against him.

26. On 11 July 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, endorsing the reasoning of the Supreme Court. It considered in particular that the criminal proceedings against the applicant, taken as a whole, had not been unfair. The decision of the Constitutional Court was served on the applicant on 11 September 2012.

II. RELEVANT DOMESTIC LAW AND PRACTICE

27. The relevant domestic law and practice concerning the use of secret surveillance measures are set out in the case of Dragojević v. Croatia (no. 68955/11, §§ 52-61, 15 January 2015).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

28. The applicant complained that the secret surveillance of his telephone conversations had been in violation of the guarantees of Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

30. The applicant contended that his secret surveillance had been unlawful because it had not been based on orders containing proper reasoning by the investigating judge, as required under the relevant domestic law and the case-law of the Constitutional Court. Referring to the Court’s findings in the Dragojević case (cited above), he also argued that the domestic authorities had failed to demonstrate that the interference with his right to respect for his private life and correspondence had been justified and necessary, as required under Article 8 of the Convention.

31. The Government accepted that there had been an interference with the applicant’s rights under Article 8 of the Convention. However, they considered that such interference had been lawful and justified. In particular, the secret surveillance orders had been based on Article 180 of the Code of Criminal Procedure and had been issued and supervised by an investigating judge on the basis of reasoned and substantiated requests from the competent State Attorney’s Office. The interference had also pursued the legitimate aim of investigating and prosecuting the crime of drug trafficking and had been proportionate to the circumstances, the gravity of the offence at issue and the applicant’s criminal activity.

2. The Court’s assessment

32. The Court refers to the general principles concerning the use of secret surveillance measures set out in the Dragojević judgment (cited above, §§ 78-84, 86-89). It notes that it is undisputed between the parties that the tapping of the applicant’s telephone interfered with his right to respect for his “private life” and “correspondence”, as guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (ibid., § 85).

33. The Court notes in the case at hand that, as in the Dragojević case, the investigating judge’s order concerning the use of secret surveillance measures was based on a request for the use of such secret surveillance by the competent State Attorney’s Office and included the statutory phrase that “the investigation could not be conducted by other means, or would be extremely difficult”. It did not, however, provide adequate reasoning as to the particular circumstances of the case and in particular reasons why the investigation could not be conducted by other, less intrusive, means (see paragraph 7 above; see also Roman Zakharov v. Russia [GC], no. 47143/06, § 260, ECHR 2015).

34. The Court found in the Dragojević case that the lack of reasoning underlying the investigating judge’s order, accompanied by the practice of the domestic courts in circumventing such lack of reasoning by retrospective justification of the use of secret surveillance, was not in compliance with the relevant domestic law and did not therefore in practice secure adequate safeguards against various possible abuses. The Court thus considered that such practices were not compatible with the requirement of lawfulness nor were they sufficient to keep the interference with an applicant’s right to respect for his private life and correspondence to what was “necessary in a democratic society”, as required under Article 8 (ibid., §§ 90-101).

35. The Court finds that the same considerations as arose in the Dragojević case are applicable in the case at hand. It sees no reason to depart from this case-law in the present case.

36. This is sufficient for the Court to conclude that there has been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

37. The applicant complained that evidence obtained by means of secret surveillance had been used in the criminal proceedings against him. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

38. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ arguments

39. The applicant argued that the criminal proceedings against him had fallen short of the requirements of a fair trial. He contended that his conviction had been based solely on evidence obtained by unlawful and unjustified secret surveillance. In his view, the domestic courts’ reliance on such evidence had not been accompanied by adequate procedural safeguards guaranteeing the fairness of the proceedings.

40. The Government pointed out that the applicant had been given an adequate opportunity to challenge the evidence at issue and to oppose its use in the proceedings, as well as to ask for further evidence to be examined at the trial. In the Government’s view, all his arguments in this respect had been duly examined and addressed by the domestic courts, including the Supreme Court and the Constitutional Court. Moreover, the Government considered that the impugned evidence had not been the sole or decisive evidence for the applicant’s conviction but represented only one element in the complex body of evidence against him.

2. The Court’s assessment

41. The general principles for the Court’s assessment of whether or not the use of evidence obtained by secret surveillance runs counter to the requirements of a fair trial under Article 6 § 1 of the Convention are set out in the Dragojević case (cited above, §§ 127-130).

42. In this connection the Court reiterates that is not its role to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (ibid., § 128).

43. Accordingly, the admission into evidence of information obtained in breach of Article 8, as occurred in the present case, will not conflict with the requirements of fairness guaranteed by Article 6 § 1 in so far as its use in the proceedings was commensurate with the appropriate procedural safeguards required by the Court’s case-law (see, for instance, Bykov v. Russia [GC], no. 4378/02, §§ 94-105, 10 March 2009; see also Khan v. the United Kingdom, no. 35394/97, §§ 25-28, ECHR 2000‑V; P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 37-38, ECHR 2001‑IX; Niţulescu v. Romania, no. 16184/06, §§ 43-57, 22 September 2015; and, in the context of an unlawful search, Prade v. Germany, no. 7215/10, §§ 36-43, 3 March 2016). Moreover, the level of public interest in the investigation into and punishment of the offence in issue may be taken into consideration and be weighed against the individual interest that the evidence against the applicant be gathered lawfully (see Prade, cited above, § 35, with further reference).

44. The first question to be examined in this context is whether the applicant was given the opportunity of challenging the authenticity of the evidence and opposing its use. In this connection the Court notes that the applicant was given, and effectively used, such an opportunity during the proceedings before the first-instance court (see paragraphs 13 and 15 above), and in both his appeal (see paragraph 23 above) and the constitutional complaint (see paragraph 25 above). The domestic courts examined his arguments on the merits and provided reasons for their decisions (see paragraphs 21-22, 24 and 26 above). The fact that the applicant was unsuccessful at each step does not alter the fact that he had an effective opportunity to challenge the evidence and oppose its use (see Schenk v. Switzerland, 12 July 1988, § 47, Series A no. 140, and Khan, cited above, § 38).

45. With regard to the quality of the evidence in question, which is a further element for the Court’s consideration, the Court notes that the applicant’s main objection to the use of the evidence obtained by means of secret surveillance concerned the formal use of such information as evidence during the proceedings (see paragraphs 13 and 15 above). He never contested the authenticity of the recordings reproduced at the trial and all the defence’s doubts as to the accuracy of the recordings were duly examined and addressed by the trial court.

46. As regards the objections voiced by the defence, the trial court in particular questioned the police officers in charge of the operation in order to clarify the circumstances of the case and provided a reasoned decision setting out its findings as to the manner in which the recordings had been obtained and documented (see paragraphs 19 and 22 above; and compare Bykov, cited above, 95; and, by contrast, Niţulescu, cited above, § 63). These findings were also examined and confirmed by the Supreme Court, which considered that all the relevant circumstances of the case had been properly established by the first-instance court (see paragraph 24 above).

47. Given that it is primarily for the domestic courts to decide on the admissibility of evidence, on its relevance and the weight to be given to it in reaching a judgment (see, amongst many others, Fomin v. Moldova, no. 36755/06, § 30, 11 October 2011), the Court finds nothing here that casts any doubts on the reliability and accuracy of the evidence in question.

48. Lastly, as regards the importance of the disputed evidence for the applicant’s conviction, the Court notes that the contested material was the decisive evidence on the basis of which criminal proceedings were instituted against him and it was likewise of decisive relevance for his conviction (see paragraphs 9-12 and 22 above). However, this element is not the determining factor in the Court’s assessment of the fairness of the proceedings taken as a whole (see Khan, cited above, § 37). The Court reiterates that the relevance of the existence of evidence other than evidence which is contested will depend on the circumstances of the particular case. In the present circumstances, where the substance of the recordings provided accurate and reliable evidence (see paragraph 47 above), the need for supporting evidence was correspondingly weaker (see Prade, cited above, § 40).

49. In view of the above, Court considers that there is nothing to substantiate the allegation that the applicant’s defence rights were not properly complied with in respect of the evidence adduced or that its evaluation by the domestic courts was arbitrary (see Bykov, cited above, § 98). In conclusion, the Court finds that the use of the impugned recordings in evidence did not as such deprive the applicant of a fair trial.

50. There has therefore been no violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

52. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

53. The Government considered the applicant’s claim excessive, unfounded and unsubstantiated.

54. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

55. In his initial application to the Court the applicant claimed EUR 1,700 in respect of costs and expenses. However, he failed to submit itemised particulars of his claim or any relevant supporting documents, although he was invited to do so.

56. The Government considered that the applicant should not be awarded any amount under this head as he had not submitted an itemised claim of costs and expenses.

57. The Court observes that the applicant failed to comply with the requirements set out in Rule 60 § 2 of the Rules of Court. In these circumstances, it makes no award under this head (Rule 60 § 3) (see, for instance, Remetin v. Croatia (no. 2), no. 7446/12, § 126, 24 July 2014).

C. Default interest

58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there has been no violation of Article 6 § 1 of the Convention;

4. Holds,

(a) that the respondent State is 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 amount, to be converted into Croatian kunas (HRK) at the rate applicable at the date of settlement:

EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithJulia Laffranque
RegistrarPresident

 

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