28
DRAGOJEVIĆ v. CROATIA JUDGMENT
the use of secret surveillance measures, a circumvention of this requirement
by retrospective justification, introduced by the courts, can hardly provide
adequate and sufficient safeguards against potential abuse since it opens the
door to arbitrariness by allowing the implementation of secret surveillance
contrary to the procedure envisaged by the relevant law.
99. This is particularly true in cases where the only effective possibility
for an individual subjected to covert surveillance in the context of criminal
proceedings is to challenge the lawfulness of the use of such measures
before the criminal courts during the criminal proceedings against him or
her (see paragraph 72 above). The Court has already held that although the
courts could, in the criminal proceedings, consider questions of the fairness
of admitting the evidence in the criminal proceedings, it was not open to
them to deal with the substance of the Convention complaint that the
interference with the applicant’s right to respect for his private life was not
“in accordance with the law”; still less was it open to them to grant
appropriate relief in connection with the complaint (see Khan, cited above,
§ 44; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR
2001-IX; and Goranova-Karaeneva, cited above, § 59).
100. This can accordingly be observed in the present case, where the
competent criminal courts limited their assessment of the use of secret
surveillance to the extent relevant to the admissibility of the evidence thus
obtained, without going into the substance of the Convention requirements
concerning the allegations of arbitrary interference with the applicant’s
Article 8 rights (see paragraphs 46 and 48 above). At the same time, the
Government have not provided any information on remedies – such as an
application for a declaratory judgment or an action for damages – which
may become available to a person in the applicant’s situation (see
Association for European Integration and Human Rights and Ekimdzhiev,
cited above, § 102).
101. Against the above background, the Court finds that the relevant
domestic law, as interpreted and applied by the competent courts, did not
provide reasonable clarity regarding the scope and manner of exercise of the
discretion conferred on the public authorities, and in particular did not
secure in practice adequate safeguards against various possible abuses.
Accordingly, the procedure for ordering and supervising the implementation
of the interception of the applicant’s telephone was not shown to have fully
complied with the requirements of lawfulness, nor was it adequate to keep
the interference with the applicant’s right to respect for his private life and
correspondence to what was “necessary in a democratic society”.
102. There has therefore been a violation of Article 8 of the Convention.
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