DRAGOJEVIĆ v. CROATIA JUDGMENT
17
unlawfulness of evidence obtained by the use of such defective orders. The purpose of
the provision concerning unlawful evidence is not to exclude evidence in favour of
persons in respect of whom there is a reasonable suspicion that they have committed
an offence, but to protect citizens who are presumed innocent (until proven guilty)
from illegal actions by the judicial and executive authorities where such actions are
illegal to such an extent that the lawmaker expressly categorised the results as
unlawfully obtained evidence.”
59. More recently, in its decision no. I-Kž-437/13-4 of 21 August 2013,
the Supreme Court interpreted the requirements of Article 180 § 1 of the
Code of Criminal Procedure in the following manner:
“The statement of reasons of the impugned decision states that all orders authorising
or extending secret surveillance measures ... contain the opinion that there is a
probable cause to believe that the offence has been committed and that the
investigation cannot be conducted by other means or would be extremely difficult.
Such a statement, without specifying the circumstances which indicate that there is
probable cause to believe [that an offence has been committed] and a mere [statutory]
statement that the investigation cannot be conducted by other means and that it would
be extremely difficult, without giving reasons in the decision, make the decision
incomprehensible and contradictory ... Moreover, the impugned decision lacks
relevant and sufficient reasons regarding a probable cause to believe that the accused
has committed an offence proscribed under Article 181 of the Code of Criminal
Procedure. It is also necessary to state the reason why the investigation cannot be
conducted or would be extremely difficult to conduct by other means, as provided by
Article 180 § 1 of the Code of Criminal Procedure.”
60. The Constitutional Court, in its decision no. U-III-2781/2010 of
9 January 2014, accepted the position of the Supreme Court in decision
no. I-Kž-61/09-3 of 3 February 2009 (see paragraph 58 above), noting that:
“The impugned orders, pursuant to the relevant provisions of the Code of Criminal
Procedure, should have contained: (a) a valid assessment of the ‘probable cause to
believe that (the appellant) alone or jointly with others participated’ in one of the
offences listed under Article 181 of the Code of Criminal Procedure: and (b) an
assessment that an investigation in respect of the offences ‘by other means would
either not be possible or would be extremely difficult”.
The Constitutional Court has assessed the relevant part of the judgment of the
Supreme Court and finds that the Supreme Court correctly applied the relevant
provisions of the Code of Criminal Procedure by holding that, if the orders for the use
of special investigative measures do not contain reasons, they can, under certain
conditions, be reasoned in the first-instance judgment or the decision concerning the
request for the exclusion of unlawfully obtained evidence.”
61. In several decisions, nos. U-III-535/1996, U-III-1781/2004, U-III4879/2012 and U-III-2745/2013, the Constitutional Court declared
inadmissible constitutional complaints against the dismissal of objections
against indictments on the grounds that those were not individual acts
against which a constitutional complaint could be lodged. Similarly, in
cases nos. U-III-2716/2012, U-III-2783/2012, U-III-423/2013 and U-III1317/2014 the Constitutional Court held that a constitutional complaint
could not be lodged against a decision confirming the indictment. It also
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