DRAGOJEVIĆ v. CROATIA JUDGMENT
25
as a rule focus its attention not on the law as such but on the manner in
which it was applied to the applicant in the particular circumstances (see
Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 48, 8 March 2011).
87. In this connection the Court notes that the applicant was subjected to
the measures of secret surveillance on the basis of Article 180 § 1 (1) of the
Code of Criminal Procedure (see paragraph 55 above). It follows that the
applicant’s covert surveillance had a basis in the relevant domestic law, the
accessibility of which does not raise any problem in the instant case (see
Kruslin, cited above, §§ 29-30)
88. The applicant’s complaints are primarily focused not on the lack of
legal basis in the relevant domestic law but on the failure of the
investigating judge to comply with the procedures envisaged by law, in
particular those related to an effective assessment as to whether the use of
secret surveillance was necessary and justified in the particular case, as
required under Article 182 § 1 of the Code of Criminal Procedure (see
paragraphs 55 and 70 above).
89. Thus the central question for the Court to determine is whether the
relevant domestic law, including the way in which it was interpreted by the
domestic courts, indicated with reasonable clarity the scope and manner of
exercise of the discretion conferred on the public authorities, and in
particular whether the domestic system of secret surveillance, as applied by
the domestic authorities, afforded adequate safeguards against various
possible abuses (compare Malone, cited above, § 70; Kruslin, cited above,
§§ 35-36; Huvig, cited above, §§ 34-35; and Kopp v. Switzerland, 25 March
1998, §§ 66-75, Reports of Judgments and Decisions 1998-II). Since the
existence of adequate safeguards against abuse is a matter closely related to
the question whether the “necessity” test was complied with in this case, the
Court will address both the requirement that the interference be “in
accordance with the law” and that it be “necessary” (see Kvasnica, cited
above, §§ 83-84).
90. The Court notes that, on the face of it, the relevant domestic law
clearly provides that for any secret surveillance measures in the context of
criminal proceedings to be lawful, they must be ordered by an investigating
judge upon a request by the State Attorney (see paragraph 55 above;
Article 182 of the Code of Criminal Procedure). The statutory preconditions
for issuing a secret surveillance order are the existence of a probable cause
to believe that an individual alone, or jointly with others, has committed one
of the offences proscribed by law (see paragraph 55 above; Article 181 of
the Code of Criminal Procedure), and that an investigation in respect of the
offences in issue is either not possible or would be extremely difficult (see
paragraph 55 above; Article 180 § 1 of the Code of Criminal Procedure).
91. The domestic law also expressly provides that the investigating
judge’s order authorising the use of secret surveillance must be in written
form and must contain a statement of reasons specifying: information
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