FIRST SECTION

Application no. 68955/11 Ante DRAGOJEVIĆ against Croatia lodged on 20 October 2011

STATEMENT OF FACTS

The applicant, Mr Ante Dragojević , is a Croatian national, who was born in 1982 and is currently serving his prison sentence in Lepoglava . He is represented before the Court by Ms J. Novak, a lawyer practising in Zagreb.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant worked as a sailor on an ocean carrier for a shipping company headquartered in Croatia. In 2007 the police investigated the possible drug trafficking from Latin America to Europe via ocean shipping carriers.

In May and July 2007, the State Attorney ’ s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta ; hereinafter: the “State Attorney ’ s Office”), based on the police reports, asked an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu ) to authorise the use of secret surveillance measures in respect of the applicant.

The investigating judge accepted the proposal and on 25 May and 2 July 2007 ordered the use of the secret surveillance measures. The relevant part of the order reads:

“On 25 May 2007 the [State Attorney ’ s Office] lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) [of the Code of Criminal Procedure] in respect of D.Š., and the secret surveillance measure under [Article 180 § 1] (1) of the cited provision in respect of Ante Dragojević who used the phone number ... This measure was also requested in respect of another unidentified person who used the number ... since the results of the previous use of secret surveillance measures showed that they had made contacts in order to commit the offence at issue.

The investigating judge considers that the request is well-founded since the investigation by other means would not be possible. Therefore it was necessary to interfere with the Constitution rights and to issue measures noted in the operative part of this order under I and II. “

In January 2009 the criminal proceedings were opened against the applicant in the Dubrovnik County Court ( Županijski sud u Dubrovniku ). The applicant was arrested and placed in pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). His pre-trial detention was extended several times during the proceedings.

On 6 April, 5 June and 1 October 2009 the applicant ’ s pre-trial detention was extended by a three-judge panel in which Judge Z.Č. took part (he presided over the panel on 6 April and 5 June 2009). The relevant part of the latter two orders is identical and it reads:

“The fact that the defendant Ante Dragojević is a reoffender, who he has been sentenced by a final judgment of the Split Municipal Court no. KML-160/02 of 10 July 2003, a final judgment of the Korčula Municipal Court no. K-33/05 of 25 May 2006, and a final judgement of the Korčula Municipal Court no. K-68/07 of 10 December 2007, suggests that his previous behaviour has not been in compliance with the law and that therefore there is a risk that, if at large, he might reoffend.

Accordingly, this court considers that his detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure.

Furthermore, this panel considers that the detention to Ante Dragojević should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure since the type and quantity of the drug, which is the subject matter of the charges, and the manner of execution [of the offence] suggest particularly grave circumstances of the offence warranting further detention.

Namely, cocaine is a hard drug and forty kilos of that drug is not insignificant. This quantity could be distributed in a number of single doses and thereby health of a number of people could be endangered, particularly youth. Having also in mind the international character of the offence, and the recorded EUR 80,000 of the proceeds of crime which surpasses the usual circumstances associated with these offences, and the criminal resolve and engagement necessary to commit the offence charged, [the court considers] that the detention should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure.”

At the same time, Judge Z.Č. assumed responsibility for the applicant ’ s case as the president of the trial panel of the Dubrovnik County Court. On 25 August 2009 Judge Z.Č., referring to the Court ’ s case-law and the case-law of the Constitutional Court ( Ustavni sud Republike Hrvatske ), asked to be excluded from the case as the president of the trial panel, owing to his previous involvement in the case.

Following Judge Z.Č. ’ s request, President of the Dubrovnik County Court on 26 August 2009 asked the Supreme Court ( Vrhovni sud Republike Hrvatske ) to transfer the trial to another court since all criminal judges of the Dubrovnik County Court had already took part in the applicant ’ s case.

On 9 September 2009 the Supreme Court dismissed the request on the grounds that there were no reasons to doubt impartiality of the Dubrovnik County Court ’ s Judges.

On 18 December 2009 the trial panel of the Dubrovnik County Court, presided over by Judge Z.Č., found the applicant guilty on charges of drug trafficking and sentenced him to nine years ’ imprisonment.

Against that judgment the applicant appealed to the Supreme Court ( Vrhovni sud Republike Hrvatske ) and on 23 September 2010 the Supreme Court dismissed his appeal as ill-founded.

The applicant further lodged a constitutional complaint before the Constitutional Court, by which he argued that the trial court lacked impartiality and that the secret surveillance orders had been unlawfully obtained evidence, and on 25 May 2011 the Constitutional Court dismissed it as ill-founded.

The decision of the Constitutional Court was served on the applicant on 13 June 2011.

B. Relevant domestic law

The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows:

Article 180

“(1) If the investigation would either not be possible or would be extremely difficult, upon a request by the State Attorney, the investigating judge can, where a probable cause exists that an individual himself or together with others has committed one of the offences provided in Article 181 of this Code, in respect of that individual, order measures of restriction of the Constitution rights of the citizens ... “

Article 182

“(1) The measures under Article 180 of this Code shall be authorised by a written reasoned order of the investigating judge. The order shall be executed by the police. The order shall contain all information about the individual concerned, facts which justify the necessity for the measures, time-limits in which the measures can be carried out, which must strike a balance of proportionality with the legitimate aim pursued, and the scope and place of the measures. ... “

COMPLAINTS

The applicant complains, under Article 6 § 1 of the Convention, about the lack of impartiality of the trial court.

He also complains, under Articles 6 § 1 and 8 of the Convention, that there has been an unlawful interference with his right to privacy by secret surveillance and about the use of such evidence in the criminal proceedings against him.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

In particular, (1) was the trial court which dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention; and (2) did the applicant have adequate procedural safeguards as regards the use of the results of secret surveillance measures as evidence during the proceedings?

2. Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, as regards the use of secret surveillance measures?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

The Government are required to submit two copies of the entire criminal case file in the applicant ’ s case.