DRAGOJEVIĆ v. CROATIA JUDGMENT
9
49. The applicant subsequently lodged a constitutional complaint with
the Constitutional Court on 21 October 2010 arguing, inter alia, that the
trial bench had lacked impartiality because of the previous involvement of
Judge Z.Č. in the case; that his secret surveillance had been unlawful on
account of the failure of the investigating judge to issue an order in the
manner required under the relevant law; and that the use of the evidence
thus obtained for his conviction had rendered the entire proceedings unfair.
50. On 25 May 2011 the Constitutional Court dismissed the applicant’s
constitutional complaint as ill-founded. It endorsed the reasoning of the
Supreme Court with regard to the use of secret surveillance measures and
the use of evidence thus obtained in the proceedings. As regards the lack of
impartiality of the trial bench, the Constitutional Court observed:
“In the case in issue, the mere fact that the president of the trial bench had on three
previous occasions ... sat on a panel which extended the appellant’s pre-trial detention
cannot in itself be a reason for disqualifying the judge from deciding the merits of the
case.
There is a significant difference between the decision on detention and the decision
on the guilt of the appellant. When ruling on an extension of detention, a member of a
panel of judges decides only the legal issues on which the application of the
procedural law concerning the so-called causae arresti (Article 102 of the Code of
Criminal Procedure) depends. Accordingly, he or she does not assess all the legal and
factual aspects of the charges. The charges will be assessed in the first-instance
proceedings. However, the appellant has not advanced any reasons why Judge Z.Č.’s
participation in the panel [of judges] which had extended his detention could be
considered to have led him to form a previous conviction as to his guilt.”
51. The decision of the Constitutional Court was served on the
applicant’s representative on 13 June 2011.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
1. Constitution
52. The relevant provisions of the Constitution of the Republic of
Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990,
135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001,
76/2010 and 85/2010) read as follows:
Article 29
“In the determination of his rights and obligations or of any criminal charge against
him, everyone is entitled to a fair hearing within a reasonable time by an independent
and impartial court established by law.”
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