CONCURRING OPINION OF JUDGE LEMMENS

1. I am happy to agree with the judgment in so far as it concerns the main issues, namely the complaints about alleged violations of Article 6 § 1 of the Convention.

With respect to the complaint relating to Article 8 of the Convention, I voted with my colleagues in finding a violation of that provision. However, I am unable to subscribe to the reasoning of the majority. In the present opinion I would like briefly to explain why some parts of that reasoning seem questionable to me.

Finally, I respectfully, but firmly, disagree with the majority ’ s decision to award the applicant just satisfaction. On this point I refer to the joint dissenting opinion by Judges Griţco and Ravarani and myself.

2. The majority ’ s reasoning relating to the Article 8 complaint is limited to the examination of the question whether the measures of secret surveillance were “in accordance with the law”. In our case the legality issue boils down to the question whether the orders of the investigating judge authorising these measures complied with domestic law.

I note with the majority that the various orders did “not ... provide relevant reasoning as to the particular circumstances of the case and in particular why the investigation could not be conducted by other, less intrusive, means” (paragraph 113 of the judgment).

The relevant provisions of domestic law are not quoted in the judgment. Reference is made to a description of the provisions of the old Code of Criminal Procedure and the relevant practice of the domestic courts in Dragojević v. Croatia (no. 68955/11, respectively §§ 55 and 57-60, 15 January 2015, referred to respectively in paragraphs 83 and 93 of the judgment). Two provisions in particular are relevant. Article 180 (1) provided that the investigating judge could order special investigating measures, including telephone tapping and covert monitoring of persons and objects, “if an investigation by other means would either not be possible or would be extremely difficult”. Article 182 (1) provided that the said measures had to be authorised by “a written reasoned order” and that the order had to “stipulate ... the circumstances justifying the need for the measures”. According to the case-law of the Constitutional Court and the Supreme Court, it followed from the combination of both Articles that a secret surveillance order had to contain reasons explaining why, in the circumstances of the case, an investigation by other means would not be possible or would be extremely difficult.

In the present case, as indicated above, such specific reasoning was lacking. This was also acknowledged by the Supreme Court, which noted in its judgment of 17 February 2010 that there were “flaws in the reasoning of the secret surveillance orders” (see the quotation in paragraph 71 of the judgment).

This is sufficient, in my opinion, to conclude that the secret surveillance measures were not in accordance with domestic law. On that formal basis [1] , I concurred with the finding of a violation of Article 8.

3. The majority, however, do not stop there.

They criticise “the circumvention by the domestic courts of this lack of reasoning by retrospective justification of the use of secret surveillance” (see paragraph 114 of the judgment) [2] . I find this criticism unfair.

I find it difficult to state that the Supreme Court tried to “circumvent” the lack of reasoning by a “retrospective” justification. It simply decided that, notwithstanding the unlawfulness of the orders authorising the secret surveillance measures, the evidence obtained as a result of these measures could be used in the criminal proceedings against the applicant, as it was not “unlawfully obtained evidence” within the meaning of Article 9 § 2 of the old Code of Criminal Procedure (see again the quotation in paragraph 71 of the judgment) [3] . I do not find such a decision questionable per se. Our Court does not exclude, as a matter of principle and in the abstract, the possibility that unlawfully obtained evidence may be admissible evidence in subsequent criminal proceedings (see Schenk v. Switzerland , 12 July 1988, § 46, Series A no. 140). It has on occasion found that the admission in evidence of information obtained without a legal basis in domestic law, and therefore not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention, did not, in the circumstances of the case, conflict with the requirements of fairness guaranteed by Article 6 § 1 (see, for example, Khan v. the United Kingdom , no . 35394/97, §§ 34-40, ECHR 2000- V; P.G. and J.H. v. the United Kingdom , no. 44787/98, §§ 76-81, ECHR 2001 ‑ IX; Vukota-Bojić v. Switzerland , no. 61838/10, §§ 91-100, 18 October 2016; and BaÅ¡ić v. Croatia , no. 22251/13, §§ 41-50, 25 October 2016).

4. The majority further find that “the relevant domestic law, as interpreted and applied by the competent courts, did not provide reasonable clarity regarding the scope and manner of exercise of the discretion conferred on the public authorities, and in particular did not secure in practice adequate safeguards against various possible abuses” (see paragraph 114 of the judgment) [4] . This finding needs to be nuanced, in my opinion.

On the one hand, I do not see what was wrong with the clarity of the law itself. As the Court noted approvingly in Dragojević , domestic law required secret surveillance measures to be authorised by a judge and carried out “on the basis of a detailed judicial order properly stipulating the necessity and proportionality of any such measure” ( Dragojević , cited above, § 92). What went wrong in the present case (and in Dragojević , for that matter) is that the investigating judge did not show that he thoroughly scrutinised the request of the State Attorney ’ s Office, as required by law. This is a shortcoming relating to the application of the law, not to the law itself.

On the other hand, it may be true that domestic law did not provide adequate and sufficient safeguards against insufficiently reasoned orders, by not allowing for an effective possibility of challenging the lawfulness of the secret surveillance measures, regardless of their use in the criminal proceedings (see Dragojević , cited above, §§ 96-100). But this conclusion cannot follow, in my opinion, from the mere fact that the orders of the investigating judge were not sufficiently reasoned and that, despite this flaw, the evidence obtained as a result of the measures thus authorised was used in the criminal proceedings.