Communicated on 6 March 2017
SECOND SECTION
Application no. 49922/16
Bojana PEJKIĆ
against Croatia
lodged on 2 August 2016
STATEMENT OF FACTS
The applicant, Ms Bojana Pejkić, is a Croatian national, who was born in 1960 and lives in Zagreb. She is 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 applicant, may be summarised as follows.
In the course of an investigation into corruption in the administrative department of the Ministry of the Interior, an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) issued secret surveillance orders in respect of the applicant and several other individuals. The secret surveillance orders contained a succinct statement of reasons for the suspicion that an offence had been committed and as to the necessity of the secret surveillance.
Following the investigation, on 5 May 2010 the applicant and two other individuals were indicted in the Zagreb County Court on charges of bribery. It was alleged that the second and the third accused had bribed the applicant, who worked as an official in the Ministry of the Interior, to perform certain actions in favour of various third parties.
During the proceedings, the second and the third accused pleaded guilty to the charges and refused to answer any further questions. The trial court also examined evidence obtained by secret surveillance and dismissed the request of the defence to examine further evidence on the grounds that the relevant facts had been sufficiently established by the statements of the second and third accused and the other evidence adduced.
On 7 October 2011 the Zagreb County Court found the applicant guilty as charged and sentenced her to two years’ imprisonment.
The applicant challenged this judgment before the Supreme Court (Vrhovni sud Republike Hrvatske).
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 (Državno odvjetništvo Republike Hrvatske), 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.
On 18 March 2015 the Supreme Court dismissed the applicant’s appeal as unfounded and upheld the first-instance judgment.
The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) arguing, inter alia, that she had not been able to question her co-accused during the proceedings and that she had been convicted on the basis of evidence obtained during secret surveillance, which had not been authorised by sufficiently reasoned orders, as required under the relevant domestic law. The applicant also contended that the submission of the State Attorney’s Office in the appeal proceedings had not been forwarded to the defence. The applicant relied on Article 6 §§ 1 and 3 (d) and Article 8 of the Convention and the Court’s relevant case-law.
On 19 November 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded on the grounds that the proceedings against her had been fair and that no other issue of the breach of her rights arose.
The decision of the Constitutional Court was served on the applicant’s representative on 8 February 2016.
COMPLAINTS
The applicant complains, under Article 6 § 1 of the Convention, that the State Attorney’s Office’s submission was not forwarded to the defence during the appeal proceedings.
The applicant further complains, under Article 6 § 3 (d) of the Convention, that she was not able to question her co-accused, who provided incriminating statements against her.
The applicant also complains, under Article 6 § 1 and Article 8 of the Convention, that there was unlawful interference with her right to privacy in the form of secret surveillance, and that evidence obtained by secret surveillance was used in the criminal proceedings against her.
QUESTIONS TO THE PARTIES
1. Were the principles of equality of arms and adversarial trial adhered to as regards the submission lodged with the Supreme Court by the State Attorney’s Office, as required under Article 6 § 1 of the Convention?
2. Was the applicant able to examine her co-accused with regard to the charges held against her, as required by Article 6 § 3 (d) of the Convention? If not, was such a restriction sufficiently counterbalanced by other relevant factors?
3. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention? In particular, did the applicant have adequate procedural safeguards as regards the use of information obtained by secret surveillance measures as evidence in the proceedings?
4. As regards the use of secret surveillance measures, has there been an interference with the applicant’s right to respect for private life and correspondence 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 applicant’s case.
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