FIRST SECTION

Application no. 2742/12 Josip MATANOVIĆ against Croatia lodged on 22 December 2011

STATEMENT OF FACTS

The applicant, Mr Josip Matanović , is a Croatian national, who was born in 1949 and is currently serving a prison sentence in Lepoglava Prison. He is represented before the Court by Ms I. Bojić , 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.

The applicant was a vice-president of the Croatian Privatisation Fund ( Hrvatski fond za privatizaciju ; hereinafter: the “Fund”), a legal entity established by the State and tasked with carrying out the privatisation of the publicly owned property.

In August and October 2006 M.M., an alleged businessman from Russia, approached 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”) alleging that he had wanted to make certain business investments in Croatia and that he had been introduced to a certain A.P., an official of the Fund, who had offered his assistance in pursuing the project in Croatia. In return, A.P. had requested M.M. to deposit EUR 2,250,000 which would be accordingly distributed to various bank accounts.

On 3 April 2007 J.K. approached the State Attorney ’ s Office claiming that he was representative of M.M. and that he had already made a number of contacts with various officials concerning M.M. ’ s investment in Croatia. In this respect he had also contacted the applicant, in his capacity of a vice-president of the Fund, who had allegedly requested a 5% provision of the total investment value, which was approximately between 23 and 25 million Euros, to help the realisation of the project. The applicant explained that that amount would have to be distributed to the bank accounts of three, out of five, vice-presidents of the Fund who would take part in the decision-making process. J.K. consented to act as an informant under the further guidance of the prosecuting authorities.

On an unspecified date in 2007 the State Attorney ’ s Office asked an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu ) to authorise the use of secret surveillance measures and the use of informants in respect of the applicant.

The request was allowed and the investigating judge ordered the use of the secret surveillance measures and the use of informants on 3 and 23 April 2007. The relevant part of the orders is identical and it reads:

“The request is accompanied with the submission of the Ministry of the Interior ’ s Criminal Police Department, and the relevant official notes, statements and other material.

The request is well-founded since the case at issue concerns the offences under Article 181 § 3 of the Code of Criminal Procedure, and the investigation into these offences by other means would either not be possible or would be extremely difficult.

Therefore, all the necessary requirements under Articles 180 and 181 of the Code of Criminal Procedure have been met and the order should be issued with a view of securing the information and evidence necessary for the criminal case.”

During the subsequent investigation, the investigation judge issued some 28 further orders to the same effect.

On 16 June 2007 the applicant was arrested and detained in connection with a suspicion that he had taken bribe and abused his power and authority in several privatisation cases.

On 12 February 2009 the State Attorney ’ s Office indicted the applicant and five other persons in the Zagreb County Court on five counts of bribery and the abuse of power and authority.

During the proceedings the applicant argued that he had been entrapped by the informants and that the secret surveillance orders had not been based on the relevant domestic law and lacked any relevant reasoning. In this respect he asked that a number of evidence be taken but the trial court dismissed his request on the ground that the orders had been based on the relevant law and that there was nothing to suggest that he had been incited by the informants. The latter issue was not examined in detail as a procedural issue but joined to the merits of the charges and accordingly rejected when the applicant was found guilty of the offences.

The applicant also asked that the secret surveillance recordings be disclosed to the defence so he could prepare his case and verify the manner in which the informants and the secret surveillance measures had been used. The trial court dismissed his request on the ground that the recordings adduced as evidence by the prosecution had been reproduced at the hearing and that the applicant had been provided with the transcripts. As for other recordings, the trial court held that there was no legal ground or relevant reason for their disclosure to the defence since they had not been used as evidence against the applicant.

On 15 May 2009 the Zagreb County Court found the applicant guilty on three counts of bribery and the abuse of power and authority and sentenced him to eleven years ’ imprisonment , and acquitted him on two counts of charges.

On an unspecified date in 2009 the applicant lodged an appeal with the Supreme Court ( Vrhovni sud Republike Hrvatske ) reiterating his complaints of entrapment and unlawfulness of the secret surveillance measures. He also complained that the relevant evidence had not been disclosed to the defence, and that the trial judges lacked impartiality since they had previously ordered his pre-trial detention.

On 17 February 2010 the Supreme Court quashed the first-instance judgment in respect of the legal qualification of one count of the applicant ’ s conviction and in that respect ordered a retrial (the applicant was apparently acquitted on this charge on 19 September 2011), and upheld the rest of the first-instance judgment, without altering the applicant ’ s sentence.

As to the applicant ’ s complaint about the lack of impartiality of the first-instance court, the Supreme Court found that the applicant had been well aware that the trial judges had taken certain decisions at the pre-trial stage of the proceedings and that nevertheless during the proceedings he had failed to raise any objection in that respect, although he had had every possibility to do so.

As to the lawfulness of the secret surveillance measures, the Supreme Court noted:

“The first complaint to the effect that the results of the special investigative techniques are unlawfully obtained evidence because the investigating judge ’ s orders were made under the Code of Criminal Procedure and not the [AOSCOC] is ill-founded.

It is true that the AOSCOC is lex specialis , but the appellants fail to observe that section 41 § 1 of that Act provides that the investigating judge may order, “save for the measures under Article 180 of the Code of Criminal Procedure” , two additional measures which are not provided under the Code of Criminal Procedure, namely the use of simulated business services and simulated business contracts. The secret surveillance measures ... applied in the case at issue are not provided under the AOSCOC and therefore the [investigating judge ’ s] orders could have been based only on the Code of Criminal Procedure. Had the investigating judge authorised any of the measures provided for in section 41 § 1 of the AOSCOC, he would have been obliged to rely on that Act.

...

The further arguments that the results of the special investigative techniques are unlawfully obtained evidence because the investigating judge, when making the orders, around thirty of them, failed to comply with the requirement set out in the case-law of the Constitutional Court, no. U-III-857/02, to the effect that the orders must be sufficiently reasoned, are also ill-founded ...

...

This court considers that the mere flaws in the reasoning of the secret surveillance orders do not make the results of such measures unlawfully obtained evidence. This is because Article 9 § 2 of the Code of Criminal Procedure provides that the unlawfully obtained evidence is such evidence which has been obtained in breach of the Code of Criminal Procedure, and if that is expressly provided for by the [Code of Criminal Procedure].

Article 182 § 6 of the Code of Criminal Procedure provides that the evidence obtained by the use of secret surveillance, under Article 180 of the Code of Criminal Procedure, cannot be used as evidence in the criminal proceedings only if it is unlawful. That is evidence which is obtained without the warrant of the investigating judge, or if the [police] acted contrary to Articles 180 and 182 § 2 of the Code of Criminal Procedure, but that is not the evidence which has been obtained contrary to Article 182 § 1 of the Code of Criminal Procedure, which provides that the order [authorising the secret surveillance] should, inter alia , refer to the facts which warrant the application of the measures, namely that there is a reasonable suspicion that a person has committed a criminal offence and that the investigation could not be carried out by other means or that such a possibility would be extremely difficult.

Article 182 § 6 of the Code of Criminal Procedure is compatible with the legal nature of the [secret surveillance] orders. Such orders [made by the investigating judge] are transmitted to the State Attorney, who is authorised to request them, and they are executed by the police. There is no legal avenue against the orders since the [State Attorney] has no legal interest to challenge them. It is therefore, moreover, not allowed to the police to challenge the orders. If the argument of the appellants, that the secret surveillance orders would be unlawful when they are not sufficiently reasoned, would be accepted, it would call into doubt the secret surveillance measures, particularly in the situations where all other legal conditions were met but the order was merely not sufficiently reasoned, which is absolutely unacceptable.”

As to the applicant ’ s plea of incitement, the Supreme Court held:

“The complaints ... that the informants J.K. and M.M. incited the accused were raised by all the accused during the first-instance proceedings, and the [first-instance] court correctly found that it did not follow from the reviewed material. The same complaints are now raised by the accused Matanović , P. and Pa., and this court considers that their complaints are ill-founded.

The witnesses M.M. and J.K. testified that they had become informants after certain accused asked them bribe [for carrying out the investment]. [M.]M. consented to act as an informant on 2 March and J.K. on 3 April 2007. After that the activity of obtaining the evidence commenced.

The secret surveillance recordings examined at the trial, and admitted into evidence, only concerned the period after 4 April until the arrest of the accused.

The offence of bribe-taking, which is the subject of these proceedings, is committed already by making a request for a gift or benefit, and since the witnesses contacted the State Attorney after they had been asked to make a payment to the accused ... the plea of incitement cannot be accepted.”

With respect to the complaint about the non-disclosure of evidence, the Supreme Court noted:

“The argument that the rights of the defence were violated by non-disclosure of 515 CDs and 177 DVDs, which were the result of secret surveillance measures, cannot be accepted ...

...

It is undisputed that at the hearing held on 11 December 2008 the trial court established the exact number of the recordings and found that 212 CDs and 27 DVDs had been submitted with the indictment, while it was found that the case file no. Kir-Us-15/07 contained further 98 CDs concerning the secret surveillance of other persons, who are not the accused in the proceedings at issue. It is also not disputed that the State Attorney asked that 18 CDs and 23 DVDs be examined as evidence, and that the telecommunication expert made the transcripts of these recordings, which were then forwarded to the parties. It is further undisputed that the recordings were reviewed at the hearing, that the accused and their lawyers were present, and that they made their objections concerning the transcripts and not concerning the recordings. It is to be noted that the transcripts are not evidence on which a conviction can be based but only an auxiliary technical assistance. The evidence on which a conviction can be based are only the recordings, in respect of which no objections were made.

Therefore, the defence had access to all the evidence from the secret surveillance, and the trial court allowed them to comment on the evidence adduced and they exercised that right.

The trial court rightly held that, given that the defence had been informed on the substance of the evidence adduced, they had no right to have the other material, which did not concern the accused in the proceedings at issue, disclosed. The trial court also rightly pointed out to the provision of section 42 § 7 of the AOSCOC, which provides that the materials obtained by the use of secret surveillance shall be destroyed if, within the six-month time-limit, criminal proceedings have not been instituted against the persons under the surveillance. ...

Did the State Attorney, when he was making his selection of the secret surveillance material, eliminate certain evidence in favour of the accused ... is of no relevance to the lawfulness of the proceedings at issue. Under the relevant provisions of the Code of Criminal Procedure the State Attorney adduces only relevant evidence concerning the substance of the charges, and therefore he is in a position to make a selection of the evidence.”

On 20 April 2010 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) reiterating his previous arguments and complaining that the statements of various State officials in media concerning his case had violated his presumption of innocence.

On 30 June 2011 the Constitutional Court, relying on the Court ’ s case-law in Peša v. Croatia , no. 40523/08 , 8 April 2010, found a violation of the applicant ’ s right to the presumption of innocence and dismissed his other complaints, endorsing the reasoning of the lower courts.

COMPLAINTS

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

He also complains, under Article 6 §§ 1 and 3 of the Convention, that the secret surveillance materials were not disclosed to the defence and that he did not have access to the case file.

The applicant further complains, under Article 6 § 1 of the Convention, that he was entrapped by agent provocateur.

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

The applicant also invokes Article 7 of the Convention concerning the domestic courts ’ interpretation of the relevant provisions of the Criminal Code.

Finally, the applicant complains, invoking Article 13 of the Convention, that the finding of a violation of his right to presumption of innocence accompanied with a possibility to obtain damages in the civil proceedings, did not suffice to satisfy the requirement of an effective domestic remedy.

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) were the principles of adversariality and the equality of arms respected with regard to the disclosure of the evidence to the defence, and was the applicant afforded adequate time and facilities to prepare his defence in this respect, as required by Article 6 § 3 (b) 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. Was the applicant a victim of an entrapment by agent provocateur and did he have appropriate procedural safeguards in that respect, as required under Article 6 § 1 of the Convention?

3. Did the acts of which the applicant was convicted constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention?

4. 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.