Communicated on 28 April 2016

SECOND SECTION

Applications nos 40429/14 and 58379/14 Željko BOSAK against Croatia and Dubravko ŠOŠO against Croatia lodged on 23 May 2014 and 18 August 2014 respectively

STATEMENT OF FACTS

The applicant in the first case, Mr Željko Bosak , is a Croatian national, who was born in 1973 and lives in Zagreb. He is represented before the Court by Ms V. Drenški Lasan , a lawyer practising in Zagreb.

The applicant in the second case, Mr Dubravko Šošo , is a Croatian national, who was born in 1957 and lives in Zagreb. He is represented before the Court by Mr A. Ilić , 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 the applicants and a number of other individuals. 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 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 25 March 2008 the trial court dismissed the applicants ’ complaints concerning the alleged unlawfulness of the secret surveillance orders as unfounded, and proceeded with the examination of the case. That decision was confirmed by the Supreme Court on 14 May 2008.

On 4 February 2009 the Zagreb County Court found the applicants guilty as charged and sentenced the applicant in the first case to ten years ’ imprisonment and the applicant in the second case to seven years ’ imprisonment.

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 use of secret surveillance by the domestic authorities had unlawfully and unjustifiably interfered with their right to privacy under Article 36 of the Constitution and Article 8 of the Convention. They 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.

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 dismissed the applicants ’ appeals and upheld their convictions. It held 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 with 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. The applicant in the first case 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, and that he had not been invited to attend the appeal hearing, although the Supreme Court had examined a number of legal and factual issues, including the question of appropriate sentence, which he had raised in his appeal.

On 9 January 2014 the Constitutional Court dismissed the applicants ’ constitutional complaints, upholding the findings of the Supreme Court. It also held, with regard to the specific complaints of the applicant in the first case, that the fact that the State Attorney ’ s submission had not been forwarded to the defence and that he had been absent from the appeal hearing had not, in the circumstances, violated his right to a fair trial.

The decisions of the Constitutional Court were served on the applicants ’ representatives on 24 February 2014.

COMPLAINTS

The applicants complain under Article 6 § 1 and Article 8 of the Convention that there has been unlawful interference with their right to privacy in the form of secret surveillance, and that evidence obtained by secret surveillance was used in the criminal proceedings against them.

The applicant in the first case also complains under Article 6 §§ 1 and 3 (c) of the Convention that the State Attorney ’ s Office of the Republic of Croatia ’ s submission was not forwarded to the defence during the appeal proceedings, and that he was not present at the appeal hearing.

The applicant in the second case also complains that the relevant witnesses on behalf of the defence were not questioned during the proceedings, contrary to Article 6 §§ 1 and 3 (d) of the Convention.

QUESTIONS TO THE PARTIES

1. With regard to the first case, 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, as required under Article 6 § 1 of the Convention? Was the applicant ’ s absence from the hearing before the Supreme Court in compliance with the requirements under Article 6 §§ 1 and 3 (c) of the Convention?

2. With regard to the second case, was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 §§ 1 and 3 (d) of the Convention?

3. 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, did the applicants 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 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.