Communicated on 26 May 2016
SECOND SECTION
Applications nos 41536/14 and 42804/14
Ramazan KESKIN against Croatia
and Ahmet BASALAN against Croatia
lodged on 29 May 2014 and 2 June 2014 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Ramazan Keskin, is a Dutch national, who was born in 1979 and lives in Rotterdam.
The applicant in the second case, Mr Ahmet Basalan, is a Dutch national, who was born in 1984 and lives in Rotterdam.
They are represented before the Court by Ms V. Drenški Lasan, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In the course of an investigation into drug trafficking, an investigating judge issued secret surveillance orders in respect of a number of individuals in Croatia, but not the applicants, who at the time lived in the Netherlands. Some of the individuals in respect of whom the secret surveillance orders had been issued contacted the applicants in the Netherlands.
The secret surveillance orders contained a succinct statement of reasons for a suspicion that an offence had been committed and as to the necessity of the secret surveillance.
In July 2007 the applicants were arrested in Croatia on suspicion of drug trafficking.
On 1 October 2007 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta) indicted the applicants and several other people in the Zagreb County Court (Županijski sud u Zagrebu) on charges of drug trafficking.
In the course of the proceedings before the Zagreb County Court the applicants challenged the lawfulness of the secret surveillance, alleging that it had not been ordered in accordance with the relevant domestic law and that the evidence so obtained was not relevant or accurate, as nothing suggested that they had been involved in the alleged drug trafficking.
On 4 February 2009 the Zagreb County Court found the applicants guilty as charged and sentenced them to six years’ imprisonment and expulsion from Croatia. In convicting them, the Zagreb County Court relied on the recordings obtained by secret surveillance, finding them lawful and credible.
The applicants challenged the first-instance judgment of the Zagreb County Court by lodging appeals with the Supreme Court (Vrhovni sud Republike Hrvatske). In particular, they contended that the secret surveillance orders had not been issued in relation to them, and that the secret surveillance had been conducted outside Croatian territory in the absence of a request for international legal assistance in criminal matters. In their view, there was no provision for this in the relevant domestic law, and thus the secret surveillance of them had run counter to Article 36 of the Constitution and Article 8 of the Convention. The applicants also stressed that the secret surveillance orders had lacked the relevant reasoning indicating the lawfulness and necessity of such surveillance. Moreover, they contended that the procedure for supervising the execution of secret surveillance orders, which in the case at hand had been based on the Code of Criminal Procedure, should have been based on special legislation concerning organised crime. The special legislation required the police to submit daily reports to the investigating judge concerning the execution of the orders, something which had not been done in the case in issue. They also challenged the findings which were based on the recordings obtained by secret surveillance, and raised a number of other procedural and substantive flaws in the findings of the first-instance judgement.
During the appeal proceedings before the Supreme Court, the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) submitted a reasoned opinion, asking that the applicants’ appeals be dismissed. That opinion was not forwarded to the defence.
On 9 March 2010 the Supreme Court held a hearing which the applicant in the first case was not invited to attend.
On the same day the Supreme Court dismissed the applicants’ appeals and upheld their convictions. It held that the secret surveillance orders had been lawfully issued in respect of several people in Croatia whom the applicants had contacted, and therefore such evidence could be used in the criminal proceedings against them. The Supreme Court also stressed that the secret surveillance orders had essentially provided sufficient reasoning, as required under the relevant domestic law. It further explained that, although the secret surveillance orders had been based on the Code of Criminal procedure and not on the special legislation concerning organised crime, and although the police had not provided daily reports to the investigating judge concerning the execution of the orders, those things could not of themselves raise an issue of whether the secret surveillance had been lawful. The Supreme Court also indicated that the first-instance court had correctly established the facts which were based on the applicants’ telephone conversations recorded by secret surveillance.
The applicants challenged those findings by lodging constitutional complaints before the Constitutional Court (Ustavni sud Republike Hrvatske). They reiterated their complaints concerning the secret surveillance and the use of evidence so obtained in the criminal proceedings against them. They also contended that the reasoned opinion of the State Attorney’s Office of the Republic of Croatia submitted during the appeal proceedings had not been forwarded to the defence.
On 9 January 2014 the Constitutional Court dismissed the applicants’ constitutional complaints, upholding the findings of the Supreme Court. It also held that the fact that the State Attorney’s submission had not been forwarded to the defence had not, in the circumstances, violated their right to a fair trial.
The decisions of the Constitutional Court were served on the applicants’ representatives on 21 and 24 February 2014 respectively.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that the submission of the State Attorney’s Office of the Republic of Croatia was not forwarded to the defence during the appeal proceedings.
They also complain under Article 6 § 1 and Article 8 of the Convention that information obtained by secret surveillance was used as evidence in the criminal proceedings against them and that there has been unlawful interference with their right to privacy in the form of secret surveillance.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, (1) was correct adversarial trial procedure adhered to as regards the submissions lodged with the Supreme Court by the Deputy State Attorney of the Republic of Croatia; and (2) did the applicants have adequate procedural safeguards as regards the use of information obtained by secret surveillance measures as evidence in the proceedings?
2. As regards the use of secret surveillance measures, has there been interference with the applicants’ right to respect for private life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
The Government are requested to submit copies of all relevant documents concerning the applicants’ cases.
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