DRAGOJEVIĆ v. CROATIA JUDGMENT
15
8.3. Where the secret surveillance order has not been justified in that way, it
breaches the Code of Criminal Procedure. ...
9. However, the appellant failed to raise that complaint during the trial or in his
appeal against the first-instance judgment (see paragraphs 2 and 5 above) and raised it
for the first time in his constitutional complaint. Moreover, he did not use other
remedies provided for in the Code of Criminal Procedure by which an accused can
challenge evidence admitted in the case. ...
10. The Constitutional Court therefore finds that the appellant has failed to exhaust
the relevant remedies ...”
58. The Supreme Court, in its decision no. I-Kž-61/09-3 of 3 February
2009, set out the relevant principles concerning the use of evidence
allegedly unlawfully obtained by the use of secret surveillance measures in
criminal proceedings, in the following terms:
“It is to be noted that the question of the use of evidence obtained by special
investigative measures in criminal proceedings is regulated under Article 182 § 6 of
the Code of Criminal Procedure. This provision expressly excludes the use of such
evidence obtained contrary to Articles 180 and 182 § 2 of the Code of Criminal
Procedure.
The submissions of the accused in support of their request for the exclusion of
unlawfully obtained evidence on the grounds that the orders issued by the
investigating judge (save for the one of 8 March 2008) contained no reasons and was
thus ex lege unlawful evidence is not correct.
Specifically, an order (just like judgments and decisions) is an act of the court and in
principle (unlike judgments and decisions) contains no reasons. The duty to state
reasons in court orders is exceptional where search orders and orders for the use of
special investigative measures limiting constitutional rights and freedoms are
concerned. The requirement for the court to give reasoned orders for the use of special
investigative measures limiting constitutional rights and freedoms flows from the
requirement contained in Article 182 § 1 of the Code of Criminal Procedure. The
lawmaker did not, however, seek to sanction conduct of the courts contrary to
Article 182 § 1 of the Code of Criminal Procedure ..., Article 182 § 6 of the Code of
Criminal Procedure provides that “the results [of the use of special investigative
measures] cannot be used in criminal proceedings”.
It follows that the lack of reasons for the orders concerning the use of special
investigative measures limiting constitutional rights and freedoms does not render the
evidence thus obtained unlawful. This also follows from the wording of the part of
Article 9 § 2 of the Code of Criminal Procedure which provides that unlawfully
obtained evidence is evidence obtained in breach of the law on criminal procedure
where such unlawfulness is expressly envisaged under a legal provision, which is not
the case regarding conduct contrary to Article 182 § 1 of the Code of Criminal
Procedure.
With regard to conduct contrary to Article 180 of the Code of Criminal Procedure,
which would provide grounds for a conclusion of unlawfulness of evidence, it is to be
noted that this provision is multi-layered.
Without doubt, evidence is ex lege unlawfully obtained if it is the result of the use of
special investigative measures limiting constitutional rights and freedoms which have
not been ordered by the court based on a request by the State Attorney; if the
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