DRAGOJEVIĆ v. CROATIA JUDGMENT
27
were essentially based only on a statement referring to the existence of the
OSCOC’s request for the use of secret surveillance and the statutory phrase
that “the investigation could not be conducted by other means or that it
would be extremely difficult” (see paragraphs 9, 11, 13 and 17 above). No
actual details were provided based on the specific facts of the case and
particular circumstances indicating a probable cause to believe that the
offences had been committed and that the investigation could not be
conducted by other, less intrusive, means.
96. Although that apparently conflicted with the requirements of the
relevant domestic law and the above-cited case-law of the Constitutional
Court (see paragraphs 55 and 93 above), it appears to have been approved
through the practice of the Supreme Court and later endorsed by the
Constitutional Court. In particular, the Supreme Court held, dealing with the
matter in the context of the admissibility of evidence, which is a different
matter under the Convention (see paragraph 99 below), that a lack of
reasons in the secret surveillance orders, contrary to Article 182 § 1 of the
Code of Criminal Procedure, could be compensated by retrospective
specific reasons with regard to the relevant questions at a later stage of the
proceedings by the court being requested to exclude the evidence thus
obtained from the case file (see paragraph 58 above). This appears to be
accepted by the Constitutional Court, which, in its decision no. U-III2781/2010 of 9 January 2014, held that if the secret surveillance orders did
not contain reasons, under certain conditions reasons could be stated in the
first-instance judgment or the decision concerning the request for exclusion
of unlawfully obtained evidence (see paragraph 60 above).
97. It follows from the foregoing that whereas the Code of Criminal
Procedure expressly envisaged prior judicial scrutiny and detailed reasons
when authorising secret surveillance orders, in order for such measures to be
put in place, the national courts introduced the possibility of retrospective
justification of their use, even where the statutory requirement of prior
judicial scrutiny and detailed reasons in the authorisation was not complied
with. In an area as sensitive as the use of secret surveillance, which is
tolerable under the Convention only in so far as strictly necessary for
safeguarding the democratic institutions, the Court has difficulty in
accepting this situation created by the national courts. It suggests that the
practice in the administration of law, which is in itself not sufficiently clear
given the two contradictory positions adopted by both the Constitutional
Court and the Supreme Court (see paragraphs 93 and 96, and 57-61 above),
conflicts with the clear wording of the legislation limiting the exercise of the
discretion conferred on the public authorities in the use of covert
surveillance (compare Kopp, cited above, § 73; and Kvasnica, cited above,
§ 87).
98. Moreover, the Court considers that in a situation where the
legislature envisaged prior detailed judicial scrutiny of the proportionality of
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