SECOND SECTION
CASE OF PEJKIĆ v. CROATIA
(Application no. 49922/16)
JUDGMENT
STRASBOURG
17 January 2023
This judgment is final but it may be subject to editorial revision.
In the case of Pejkić v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 49922/16) 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”) on 2 August 2016 by a Croatian national, Ms Bojana Pejkić (“the applicant”), who was born in 1960 and lives in Zagreb and who was represented by Ms V. Drenški Lasan, a lawyer practising in Zagreb;
the decision to give notice of the complaints under Article 8 and Article 6 §§ 1 and 3 (d) of the Convention concerning criminal proceedings against the applicant to the Croatian Government (“the Government”), represented by their Agent, Ms Š. Stažnik, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns criminal proceedings against the applicant on charges of abuse of office.
2. The applicant was employed in the Ministry of the Interior. In the course of the use of secret surveillance measures against several individuals, the police intercepted telephone conversations between the applicant and one of the suspects.
3. On 30 November 2009 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (“the OSCOC”) asked an investigating judge of the Zagreb County Court to authorise the use of special investigative measures, namely phone tapping and covert monitoring, against the applicant and several other persons on the grounds of their suspected participation in corruption. On the same day the investigating judge granted the request and ordered the use of secret surveillance measures until 30 January 2010.
4. Following a further request from the OSCOC, on 18 December 2009 the investigating judge issued an order to apply the same measures until 30 January 2010 in respect of another person, V.M.
5. Following another request from the OSCOC, on 5 January 2010 the investigating judge extended the secret surveillance order in respect of the applicant until 30 January 2010 by including another telephone line that was used by her.
6. On 25 February the police arrested the applicant, V.M. and Ž.M.J. The OSCOC questioned the three of them individually as suspects. V.M. confessed to the charges, whereas the applicant and Ž.M.J. denied them.
7. On 5 May 2010 the applicant, V.M. and Ž.M.J. were indicted in the Zagreb County Court. It was alleged that V.M. and Ž.M.J. had bribed the applicant, an official in the Ministry of the Interior, to perform certain actions in favour of various third parties.
8. In the ensuing trial V.M. and Ž.M.J. pleaded guilty to the charges and refused to answer any questions.
9. On 7 October 2011 the Zagreb County Court found the accused guilty as charged. It sentenced the applicant to two years’ imprisonment and gave her two co-accused suspended prison sentences. When convicting the applicant, the trial court relied on the secret surveillance recordings, copies of case files containing handwritten notes showing that the applicant had intervened in procedures concerning third parties in the Ministry, the material evidence found during the search of her home and the statements of the applicant and of her co-accused, viewed against other evidence.
10. The applicant challenged the judgment before the Supreme Court.
11. In the course of the proceedings before the Supreme Court, the case file was forwarded to the State Attorney’s Office of the Republic of Croatia, which on 28 February 2012 submitted a reasoned opinion on the legal and factual issues of the case, asking that the applicant’s appeal be dismissed. This submission was never forwarded to the defence.
12. On 18 March 2015 the Supreme Court dismissed the applicant’s appeal as unfounded and upheld the first-instance judgment.
13. On 19 November 2015 the Constitutional Court dismissed a constitutional complaint by the applicant as unfounded. This decision was served on the applicant on 8 February 2016.
14. Before the Court the applicant complained, relying on Article 8 and Article 6 §§ 1 and 3 (d) of the Convention, that the secret surveillance orders against her had been based on Article 335 § 3 of the Code of Criminal Procedure, which had been declared unconstitutional, and that they had been insufficiently reasoned; that she had been convicted on the basis of evidence obtained during unlawful secret surveillance; that she had not been able to question her co-accused during the trial; and that the submission of the State Attorney’s Office in the appeal proceedings had not been forwarded to the defence.
THE COURT’S ASSESSMENT
ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTIONFinding of unconstitutionality regarding Article 335 § 3 of the Code of Criminal Procedure15. The Court notes that Article 335 § 3 of the Code of Criminal Procedure, as enacted in 2008, provided that special investigative measures could continue for a maximum period of six months, and that for important reasons they could be extended for a further six months, and in particularly complex cases for a further six months after that.
16. The Court notes that by its decision no. U-I-448/2009 of 19 July 2012 the Constitutional Court found Article 335 § 3 to be unconstitutional, criticising the vagueness of the statutory reasons for which the measures could be extended, as well as the length of the period for which they could be ordered. In 2013 Article 335 § 3 was amended so that special investigative measures could be ordered for a period of three months and, in situations provided by law, could be extended for a further three months and then a further six months.
17. The Court notes that the measures against the applicant lasted from 30 November 2009 to 30 January 2010, that is, for two months (see paragraphs 3-5 above). The issues on account of which Article 335 § 3 of the Code of Criminal Procedure was found to be unconstitutional do not therefore arise in her case.
18. The Court thus concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Whether the secret surveillance orders contained adequate reasoning19. The Court refers to its findings in Dragojević v. Croatia (no. 68955/11, §§ 90-101, 15 January 2015), Bašić v. Croatia (no. 22251/13, §§ 33-34, 25 October 2016), Matanović v. Croatia (no. 2742/12, §§ 113-14, 4 April 2017), Grba v. Croatia (no. 47074/12, §§ 85-87, 23 November 2017), and Bosak and Others v. Croatia (nos. 40429/14 and 3 others, §§ 45-47, 6 June 2019).
20. As to the secret surveillance order of 5 January 2010, the Court notes that it provided particular circumstances indicating reasonable grounds for believing that the applicant had committed the offences listed under the law and that the investigation could not be conducted by other, less intrusive, means (compare Bosak and Others, cited above, § 49, and Ringwald v. Croatia (dec.), nos. 14590/15 and 25405/15, § 34, 22 January 2019). The Court finds no ground to question these reasons and does not find that the order was insufficiently reasoned.
21. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
22. As to the order of 18 December 2009 (see paragraph 4 above), the Court notes that, even though it was issued in respect of V.M., its implementation led to the applicant’s telephone conversations being intercepted and recorded and consequently to evidence thus obtained being used against her (compare Bosak and Others, cited above, § 48).
23. The Court notes that the complaint concerning the secret surveillance orders issued on 30 November and 18 December 2009 is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
24. It observes that those orders were essentially based on a statement referring to the relevant prosecutor’s request for the use of secret surveillance. No actual details were provided as to the specific facts of the case or to any particular circumstances indicating grounds to believe that the applicant or V.M. (see paragraph 22 above) had committed the offences listed under the law (compare Dragojević, cited above, § 95).
25. There has therefore been a violation of Article 8 of the Convention on that account.
ALLEGED VIOLATIONs OF ARTICLE 6 OF THE CONVENTIONUse of evidence obtained by means of secret surveillance26. The Court has found manifestly ill-founded the complaint under Article 8 of the Convention as regards the secret surveillance order issued on 5 January 2010 (see paragraphs 20 and 21 above). That implies that the evidence thus obtained were not unlawful. The Court further finds that the applicant’s allegations in that respect do not disclose any issue of unfairness under Article 6 § 1 of the Convention (compare Bosak and Others, cited above, § 77, and Ringwald, cited above, § 41).
27. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
28. The Court has found a breach of Article 8 of the Convention as regards the secret surveillance orders issued on 30 November and 18 December 2009 (see paragraphs 24 and 25 above).
29. In that connection the Court notes that the applicant had an effective opportunity to challenge the authenticity of the evidence thus obtained and to oppose its use. The applicant’s main objection concerned the formal use of such information as evidence during the proceedings. She voiced no doubts as to the accuracy of the recordings. The domestic courts examined her arguments and provided reasons for their decisions. The contested evidence was not the only evidence on which the applicant’s conviction was based; the trial court also considered the applicant’s statements, the statements of her co-accused, the statements of other witnesses and material evidence available in the file (see paragraph 9 above, and compare Bosak and Others, cited above, §§ 80-84).
30. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The applicant’s inability to question her co-accused at the trial31. General principles regarding the admission of untested incriminating witness evidence in criminal proceedings have been outlined in Al‑Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011), and clarified in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015).
32. The Court notes that during the pre-trial proceedings the applicant, V.M. and Ž.M.J. were questioned individually as suspects (see paragraph 6 above). Given that V.M. confessed to the charges and that the applicant denied them, the Court notes with regret that the authorities did not use the opportunity provided by domestic law to arrange for a confrontation interview at the investigation stage, thereby ensuring that the applicant was given an opportunity to question a witness against her in the event that V.M. subsequently did not attend the trial or refused to give evidence, as it happened in the present case.
33. The Court further notes that at the ensuing trial both of the applicant’s co‑accused admitted to the charges and thus had no apparent reason to remain silent. However, it accepts that the respondent State cannot be criticised for the fact that they refused to answer any questions. V.M. and Ž.M.J. were summoned to, and attended, all the trial hearings. The trial court could not have compelled them to give evidence as they made use of their statutory right not to answer questions (compare and contrast Oddone and Pecci v. San Marino, nos. 26581/17 and 31024/17, §§ 97-101, 17 October 2019).
34. The Court further notes that the evidence available in addition to V.M.’s and Ž.M.J.’s pre-trial statements included the applicant’s own statement, statements of other witnesses, evidence obtained by phone tapping, copies of case files containing handwritten notes that the applicant had intervened in procedures concerning third parties, and material evidence gathered during the search of the applicant’s home (see paragraph 9 above). That being so, V.M.’s and Ž.M.J.’s pre-trial statements were not the “sole” evidence used to ground the applicant’s conviction; nor were they “decisive” in the sense that they were likely to be determinative of the outcome of the case (compare Breijer v. the Netherlands (dec.), 41596/13, § 34, 3 July 2018, and contrast Craxi v. Italy (no. 1), no. 34896/97, § 88, 5 December 2002).
35. The Court further notes that the recordings of V.M.’s and Ž.M.J.’s pre-trial questioning were played at the hearing in the presence of the applicant and her lawyer, and the applicant was therefore afforded an effective opportunity to challenge their accuracy and give her own version of the events, which she did. The trial court scrutinised in detail the reliability of V.M.’s and Ž.M.J.’s pre-trial statements in the light of the applicant’s own statement and the corroborating evidence available (see paragraph 9 above), and its assessment was reviewed by the Supreme Court (see paragraph 12 above). The domestic courts provided detailed reasoning when dismissing the applicant’s arguments and finding her guilty as charged.
36. Lastly, in view of the evidence obtained during the proceedings, and noting that Article 6 § 3 (d) leaves it to the domestic authorities to assess whether it is appropriate to call witnesses (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 139, 18 December 2018), the Court finds that the domestic courts’ conclusion that it was not necessary to question two persons proposed by the defence as witnesses (Ž.K. and S.Š.) raises no issue of unfairness.
37. Accordingly, the criminal proceedings were not rendered unfair by the admission into evidence of V.M.’s and Ž.M.J.’s pre-trial statements.
38. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Alleged violation of the principle of equality of arms as regards the submission of the State Attorney’s Office of the Republic of Croatia39. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
40. It observes that it has repeatedly found violations of Article 6 § 1 of the Convention on the grounds that a reasoned submission of the competent State Attorney’s Office was not forwarded to the defence (see Zahirović v. Croatia, no. 58590/11, §§ 42-50, 25 April 2013; Lonić v. Croatia, no. 8067/12, §§ 83-86, 4 December 2014; Kliba v. Croatia [Committee], no. 30375/16, §§ 22-28, 18 April 2019; Bosak and Others, cited above, §§ 91‑101; and Romić and Others v. Croatia, nos. 22238/13 and 6 others, §§ 91‑95, 14 May 2020; and contrast Šimundić v. Croatia (dec.), no. 22388/16, §§ 20-22, 26 March 2019).
41. In the above-mentioned cases, the Court addressed the same arguments as those put forward by the Government in the present case. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.
42. There has accordingly been a violation of Article 6 § 1 of the Convention in this regard.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. The applicant claimed 11,500 euros (EUR) in respect of non‑pecuniary damage and EUR 3,450 euros in respect of costs and expenses incurred before the domestic courts and before the Court.
44. The Government challenged that claim.
45. The Court awards the applicant EUR 1,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.
46. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,450 covering costs under all heads, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint under Article 8 of the Convention concerning the lack of reasoning of the secret surveillance orders issued on 30 November and 18 December 2009 and the complaint under Article 6 § 1 of the Convention concerning failure to forward the reasoned submission of the State Attorney’s Office to the defence in the course of the appeal proceedings admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 8 of the Convention on account of a lack of adequate reasoning as regards the secret surveillance orders issued on 30 November and 18 December 2009;Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to forward the reasoned submission of the State Attorney’s Office to the defence in the course of the appeal proceedings;Holds(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,450 (three thousand four hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President