Information Note on the Court’s case-law No. 181
January 2014
Dragojević v. Croatia - 68955/11
Judgment 15.1.2015 [Section I]
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Insufficient guarantees against arbitrariness of domestic secret surveillance provisions: violation
Facts – In 2007 the applicant was suspected of involvement in drug-trafficking. At the request of the prosecuting authorities, the investigating judge authorised the use of secret surveillance measures to covertly monitor the applicant’s telephone. In 2009 the applicant was found guilty of drug-trafficking and money laundering and sentenced to nine years’ imprisonment. His conviction was upheld by the Supreme Court in 2010 and his constitutional complaint was dismissed in 2011.
Law – Article 8: Tapping the applicant’s telephone constituted an interference with his rights to respect for his “private life” and “correspondence”. 
Under domestic law, the use of secret surveillance was subject to prior authorisation. However, in the applicant’s case the orders issued by the investigating judge were based only on a statement referring to the prosecuting authorities’ request and the assertion that “the investigation could not be conducted by other means”, without any information as to whether less intrusive means were available. That approach was endorsed by the Supreme Court and the Constitutional Court. In an area as sensitive as the use of secret surveillance the Court had difficulties accepting such interpretation of the domestic law, which envisaged prior detailed judicial scrutiny of the proportionality of the use of secret surveillance measures. The domestic courts’ circumvention of this requirement by retrospective justification opened the door to arbitrariness and could not provide adequate and sufficient safeguards against potential abuse. 
In the applicant’s case, the criminal courts had limited their assessment of the use of secret surveillance to the extent relevant to the admissibility of the evidence thus obtained, without going into the substance of the Convention requirements concerning the allegations of arbitrary interference with the applicant’s Article 8 rights. The Government had not provided any information on remedies which could be available to a person in the applicant’s situation. Therefore, the relevant domestic law, as interpreted and applied by the domestic courts, was not sufficiently clear as to the scope and manner of exercise of the discretion conferred on the public authorities, and did not secure adequate safeguards against possible abuse. Accordingly, the procedure for ordering and supervising the implementation of the interception of the applicant’s telephone had not complied with the requirements of lawfulness, nor was it adequate to keep the interference with the applicant’s right to respect for his private life and correspondence to what was “necessary in a democratic society”.
Conclusion: violation (unanimously).
The Court found no violation of Article 6 § 1 in respect of the alleged lack of impartiality of the trial bench and the use of evidence obtained by secret surveillance.
Article 41: EUR 7,500 in respect of non-pecuniary damage.
(See also Kopp v. Switzerland, 23224/94, 25 March 1998; Khan v. the United Kingdom, 35394/97, 12 May 2000; P.G. and J.H. v. the United Kingdom, 44787/98, 25 September 2001, Information Note 34; Kvasnica v. Slovakia, 72094/01, 9 June 2009; and Goranova-Karaeneva v. Bulgaria, 12739/05, 8 March 2011)

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