FIRST SECTION
\nCASE OF PARAZAJDER v. CROATIA
\n(Application no. 50049\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n1 March 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Parazajder v. Croatia,<\/strong><\/p>\n The European Court of Human Rights (First Section), sitting as a Committee composed of:<\/p>\n Kristina Pardalos, President, Having deliberated in private on 6 February 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 50049\/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Croatian national, Mr Juraj Parazajder (\u201cthe applicant\u201d), on 12 July 2012.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr O. Tatarac, a lawyer practising in Zagreb. The Croatian Government (\u201cthe Government\u201d) were represented by their Agent, Ms \u0160. Sta\u017enik.<\/p>\n 3.\u00a0\u00a0The applicant complained, in particular, that he had been placed under unlawful secret surveillance and the evidence so obtained had been used in the criminal proceedings against him. He relied on Articles 6 \u00a7 1 and 8 of the Convention.<\/p>\n 4.\u00a0\u00a0On 16 February 2015 thesecomplaints were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1950 and lives in Zagreb.He was formerly a lawyer practising in Zagreb.<\/p>\n 6.\u00a0\u00a0In the context of the use of secret surveillance measures in respect of a vice-president of the Croatian Privatisation Fund (Hrvatski fond za privatizaciju, hereinafter \u201cthe Fund\u201d), a legal entity established by the State and tasked with carrying out the privatisation of publicly owned property, the authorities intercepted and recorded a number of the applicant\u2019s telephone conversations and messages. The secret surveillance was carried out on the basis of orders issued by an investigating judge of the Zagreb County Court (\u017dupanijski sud u Zagrebu). The reasoning of the relevant orders is outlined in the case of Matanovi\u0107 v. Croatia (no. 2742\/12, \u00a7\u00a7\u00a011\u201113, 4 April 2017).<\/p>\n 7.\u00a0\u00a0On 16 June 2007 the applicant was arrested on suspicion of corruption involving a number of officials of the Fund and other individuals.<\/p>\n 8.\u00a0\u00a0Following his arrest, an investigation was opened in the Zagreb County Court (see, for further details, Matanovi\u0107, cited above, \u00a7\u00a7 15-28).<\/p>\n 9.\u00a0\u00a0On 12 February 2008, upon completion of the investigation, the State Attorney\u2019s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta \u2013 hereinafter: \u201cthe State Attorney\u2019s Office\u201d) indicted the applicant and nine other individuals in the Zagreb County Court on charges of bribe-taking, offering bribes, and abuse of power and authority. The applicant was indicted \u2012 in his capacity as the lawyer acting forthe Vice-President of the Fund \u2012 for facilitating the receipt of a bribe of 150,000 euros (EUR) for his client and aiding and abetting the abuse of power and authority by him.<\/p>\n 10.\u00a0\u00a0During the proceedings the applicant challenged the lawfulness of the secret surveillance orders, arguing that they lacked the requisite reasoning and had been issued contrary to the provisions of the relevant domestic law (see, for further details on the procedural actions taken, Matanovi\u0107, cited above, \u00a7\u00a7 29-63).<\/p>\n 11.\u00a0\u00a0On 15 May 2009 the Zagreb County Court found the applicant guilty as charged and sentenced him to three years\u2019 imprisonment. It examined in detail and dismissed the applicant\u2019s arguments regarding the unlawfulness of secret surveillance orders on the grounds that they had been issued by the relevant investigating judge in accordance with the law.The trial court also provided detailed reasoning why it considered that the available evidence provided a reliable basis for the applicant\u2019s conviction. When convicting the applicant, the trial court had relied on the secret surveillance recordings, the statement of an informant, who had been questioned at the trial,the statements of other witnesses, andthe evidentiary material available in the file.<\/p>\n 12.\u00a0\u00a0On 24 and 28 September 2009, the applicant both personally and through a lawyer lodged appeals against the first-instance judgment before the Supreme Court (Vrhovni sud Republike Hrvatske). In the appeals, the applicant argued that he had been unlawfully monitored and that his conviction had been based on evidence obtained unlawfully by the use of secret surveillance. He also extensively challenged the factual findings and conclusions of the first-instance court.<\/p>\n 13.\u00a0\u00a0On 17 February 2010 the Supreme Court dismissed the applicant\u2019s appeal as unfounded, endorsing the reasoning ofthe first-instance judgment.<\/p>\n 14.\u00a0\u00a0On 22 April 2010 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) alleging in particular that he had been placed under unlawful secret surveillance andthat the evidence thereby obtained had been used in the criminal proceedings against him. He also extensively elaborated on the alleged deficiencies in the lower courts\u2019 factual conclusions.<\/p>\n 15.\u00a0\u00a0On 21 February 2012 the Constitutional Court dismissed the applicant\u2019s complaints as unfounded, endorsing the reasoning of the lower courts. It also stressed that the applicant had actively participated in the proceedings and that there had been no arbitrariness in the findings and decisions of the relevant courts.<\/p>\n 16.\u00a0\u00a0The decision of the Constitutional Court was served on the applicant\u2019s representative on 23 February 2012.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 17.\u00a0\u00a0The relevant domestic law and practice is set out in the Matanovi\u0107 case (cited above, \u00a7\u00a7 81-93).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicant complained that the domestic authorities\u2019 recourse to special investigative measures, in particular secret surveillance, had been in violation of the guarantees of Article 8 of the Convention, which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private … life, … and his correspondence.<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n 19.\u00a0\u00a0The Government contested this argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 20.\u00a0\u00a0The Court notes that the applicant\u2019s complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 21.\u00a0\u00a0The applicant maintained that the secret surveillance under which he had been placed had been unlawful as it had been conducted on the basis of orders issued by an investigating judge in contravention ofthe relevant domestic law and the Convention requirements.<\/p>\n 22.\u00a0\u00a0The Government accepted that there had been an interference with the applicant\u2019s rights under Article 8 of the Convention. However, they considered that such interference had been lawful and justified as itspurpose had beenthe investigation and prosecution of serious offences of corruption.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 23.\u00a0\u00a0The Court refers to the general principles concerning the use of measures of secret surveillance set out in the case of Dragojevi\u0107 v. Croatia (no. 68955\/11, \u00a7\u00a7 78-84, 15 January 2015; see also Matanovi\u0107, cited above, \u00a7 112).<\/p>\n 24.\u00a0\u00a0The Court notes that it has previously found a violation of Article 8 of the Convention in the case of Matanovi\u0107 (cited above, \u00a7\u00a7 112-116) concerning the same set of domestic proceedings in which secret surveillance measures had been ordered and carried out, leading to the interception of a number of the applicant\u2019s telephone conversations and messages (see paragraph 6 above).<\/p>\n 25.\u00a0\u00a0In the present case, the Court sees no reason to depart from its findings in the Matanovi\u0107 case.<\/p>\n 26.\u00a0\u00a0It therefore finds that there has been a violation of Article 8 of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 27.\u00a0\u00a0The applicant complained that evidence obtained by means of secret surveillance had been used in the criminal proceedings against him. He relied on Article 6 \u00a7 1 of the Convention, which, in so far as relevant, reads:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 28.\u00a0\u00a0The Government contested this argument.<\/p>\n A.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 29.\u00a0\u00a0The Government submitted that the applicant had actively participated in the criminal proceedings against him and had been given every opportunity to examine the recordings obtained by means of secret surveillance and to oppose their use as evidence. He had indeed challenged the lawfulness of such evidence, but only on formal grounds, without calling into question its reliability. The domestic courts had dismissed the applicant\u2019s arguments and provided sufficient reasons for their decisions.The Government also stressed that the applicant\u2019s conviction had not been based solely on the evidence obtained by secret surveillance but also on other material evidence and witness statements taken during the trial.<\/p>\n 30.\u00a0\u00a0The applicant argued that his conviction had been based almost exclusively on evidence obtained through secret surveillance, which was evidence that had been obtained unlawfully. In the applicant\u2019s view, his conviction based on such evidence had been arbitrary and contrary to the requirements of a fair trial.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 31.\u00a0\u00a0The Court refers to the general principles set out in the Dragojevi\u0107 case (cited above, \u00a7\u00a7 127-130).<\/p>\n 32.\u00a0\u00a0The Court notes that the central tenet of the applicant\u2019s grievances concerns the use of evidence obtained by secret surveillance measures for his conviction. In contrast to the Matanovi\u0107 case (cited above, \u00a7\u00a7 160-188), the applicant has not raised, either in the remedies used at the domestic level concerning his conviction or in his arguments before the Court, the argument of a lack of disclosure of evidence relevant for his case. In these circumstances, the Court will limit its assessment to the issue raised by the applicant, namely the use of evidence obtained by secret surveillance to secure his conviction.<\/p>\n 33.\u00a0\u00a0In this connection the Court reiterates that it is not its role to determine, as a matter of principle, whether particular types of evidence \u2013for example, unlawfully obtained evidence \u2013 may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. Accordingly, the admission into evidence of information obtained in breach of Article 8, as occurred in the present case, will not conflict with the requirements of fairness guaranteed by Article 6 \u00a7 1 in so far as its use in the proceedings was commensurate with the appropriate procedural safeguards required by the Court\u2019s case-law (see Ba\u0161i\u0107 v. Croatia, no. 22251\/13, \u00a7\u00a7 42-43, 25 October 2016, with further references).<\/p>\n 34.\u00a0\u00a0The first question to be examined in this context is whether the applicant was given the opportunity of challenging the authenticity of the evidence and opposing its use. In this connection the Court notes that the applicant was given, and indeed used, such an opportunity during the proceedings before the first-instance court (see paragraph10above), and in both his appeal (see paragraph 12 above) and the constitutional complaint (see paragraph 14 above). The domestic courts examined his arguments on the merits and provided reasons for their decisions (see paragraphs 11, 13 and 15 above). The fact that the applicant was unsuccessful at each step does not alter the fact that he had an effective opportunity to challenge the evidence and oppose its use (see Schenk v. Switzerland, 12 July 1988, \u00a7 47, Series A no. 140).<\/p>\n 35.\u00a0\u00a0With regard to the quality of the evidence in question, which is a further element for the Court\u2019s consideration, the Court notes that the applicant\u2019s main objection to the use of the evidence obtained by means of secret surveillance concerned the formal use of such information as evidence during the proceedings (see paragraphs 10 and 12 above). For its part, the trial court addressed the applicant\u2019s arguments demonstrating that the evidence in question provided a reliable basis for the applicant\u2019s conviction (see paragraph 11 above). These findings were also examined and confirmed by the Supreme Court and the Constitutional Court (see\u00a0paragraphs 13 and\u00a015 above).<\/p>\n 36.\u00a0\u00a0In these circumstances, given that it is primarily for the domestic courts to decide on the admissibility of evidence, on its relevance and the weight to be given to it in reaching a judgment (see, amongst many others, Fomin v. Moldova, no. 36755\/06, \u00a7 30, 11 October 2011), the Court finds nothing here that casts any doubts on the reliability and accuracy of the evidence in question.<\/p>\n 37.\u00a0\u00a0Lastly, as regards the importance of the disputed evidence for the applicant\u2019s conviction, the Court notes that, although such evidence carried a significant weight, the applicant\u2019s conviction was also based on other evidence, namely the statements of witnesses and the evidence material available in the file (see paragraph 11 above).<\/p>\n 38.\u00a0\u00a0In view of the above considerations, the Court cannot find that the use of the impugned recordings in evidence\u2012per se\u2012deprivedthe applicant of a fair trial.<\/p>\n 39.\u00a0\u00a0The Court therefore finds that the applicant\u2019s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 40.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 41.\u00a0\u00a0Within the period fixed for the submission of the applicant\u2019s just satisfaction claim, under Rule 60 of the Rules of Court, the applicant claimed pecuniaryand non-pecuniary damage, which he was unable to specify.<\/p>\n 42.\u00a0\u00a0The Government contested the applicant\u2019s claim.<\/p>\n 43.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant1,500 Euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 44.\u00a0\u00a0The Court notes that the applicant failed to comply with the requirements set out in Rule 60 \u00a7 2 of the Rules of Court by submitting itemised particulars of a claim for costs and expenses and the relevant supporting documents, although he was invited to do so.In these circumstances, it makes no award under this head (see, for instance, Ba\u0161i\u0107, cited above, \u00a7 57).<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 45.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaints concerning the alleged unlawfulness of his secret surveillance, under Article 8 of the Convention, admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 8 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months,EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted into Croatian kunas (HRK) at the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 1 March 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Renata Degener\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Kristina Pardalos
\nKsenija Turkovi\u0107,
\nPauliine Koskelo, judges,
\nand Renata Degener, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n