26
DRAGOJEVIĆ v. CROATIA JUDGMENT
concerning the person in respect of whom the measures are carried out,
relevant circumstances justifying the need for secret surveillance measures,
the time-limits in which the measures can be carried out – which must be
proportionate to the legitimate aim pursued – and the scope of the measures
(see paragraph 55 above; Article 182 § 1 of the Code of Criminal
Procedure).
92. The domestic law thereby provides for prior authorisation of the use
of secret surveillance measures which must be sufficiently thorough and
capable of demonstrating that the statutory conditions for the use of secret
surveillance have been met and that the use of such measures is necessary
and proportionate in the given circumstances. Strictly speaking, every
individual under the jurisdiction of the Croatian authorities, when relying on
these provisions of the relevant domestic law, should be confident that the
powers of secret surveillance will be subjected to prior judicial scrutiny and
carried out only on the basis of a detailed judicial order properly stipulating
the necessity and proportionality of any such measure.
93. The importance of the prior judicial scrutiny and reasoning of the
secret surveillance orders was emphasised in the decision of the
Constitutional Court no. U-III-857/2008 of 1 October 2008. In particular, it
explained that only a detailed statement of reasons in the secret surveillance
orders “guarantees that the existence of a ‘probable cause to believe’ that an
offence proscribed under the law has been committed will precede the use
of secret surveillance measures, that a minimum degree of probability exists
that an actual – and not some possible – offence has been committed, and
that the use of State powers will be logical and convincing and subsequently
challengeable during the proceedings before the competent courts”. In the
absence of this, according to the Constitutional Court, a secret surveillance
order will breach the Code of Criminal Procedure (see paragraph 57 above).
94. In this connection the Court has also emphasised that verification by
the authority empowered to authorise the use of secret surveillance, inter
alia, that the use of such measures is confined to cases in which there are
factual grounds for suspecting a person of planning, committing or having
committed certain serious criminal acts and that the measures can only be
ordered if there is no prospect of successfully establishing the facts by
another method or this would be considerably more difficult, constitutes a
guarantee of an appropriate procedure designed to ensure that measures are
not ordered haphazardly, irregularly or without due and proper
consideration (see Klass and Others, cited above, § 51). It is therefore
important that the authorising authority – the investigating judge in the
instant case – determines whether there is compelling justification for
authorising measures of secret surveillance (compare Iordachi and Others v.
Moldova, no. 25198/02, § 51, 10 February 2009).
95. In the instant case the four secret surveillance orders issued by the
investigating judge of the Zagreb County Court in respect of the applicant
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