23 Aug The use of evidence obtained by means of secret surveillance in criminal proceedings

In the case Blagajac v. Croatia (application no. 50236/16, 09.05.2023), the European Court of Human Rights found a violation of the Article 6 § 1 European Convention on Human Rights. The case involved criminal proceedings against the applicant, who was a lawyer, for allegedly giving a bribe in a large-scale bribery case involving land registry officials. The applicant raised several complaints, including the unlawfulness of the search of his electronic devices and the use of evidence obtained from the search, the inability to access the case file on secret surveillance, and the failure to provide reasoned submissions of the State Attorney’s Office to the defense during the appeal proceedings.

Regarding the search of the applicant’s laptop and mobile phones, the Court found that it interfered with the applicant’s right to privacy under Article 8 of the Convention. However, the search was conducted based on relevant provisions of the Code of Criminal Procedure, which did not require the presence of an investigating judge or a representative of the Croatian Bar Association for searching movable property such as electronic devices. The applicant had the opportunity to object or refuse to sign the record of the search, but he did not do so. 

The Court determined that the interference with the applicant’s rights served the legitimate aim of combating corruption and organized crime, and the applicant did not argue that it compromised his legal professional privilege. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Regarding the evidence presented at the trial, the Court noted that the applicant received the transcripts of audio recordings prepared by an impartial IT expert, and he had ample opportunity to contest their content but failed to do so. There was no evidence suggesting that the applicant was prevented from adequately preparing his defense in relation to the evidence presented at the trial.

Concerning the inability to consult the remaining materials obtained through secret surveillance, the Government argued that the applicant had access to the relevant case files but did not utilize the opportunity. The applicant claimed ignorance of the existence of one file and being informed that another file had been archived, but he provided no evidence to support these claims. The Court considered the applicant’s assertions not credible, given that the existence of one file was referred to in the decision to open the investigation. As the applicant did not consistently complain or request access to the materials, the Court concluded that this complaint was manifestly ill-founded.

The Court dismissed the applicant’s complaint about the search of his electronic devices as inadmissible, indicating that it was not unlawful since any interference with rights protected under Article 8 had to be based on law. Additionally, the Court found no appearance of a violation of fair trial guarantees in relation to this complaint.

Regarding the alleged violation of the principle of equality of arms concerning submissions from the State Attorney’s Office, the Court found the complaint admissible and stated that the arguments put forward by the Government did not warrant a different conclusion. Consequently, there was a violation of Article 6 § 1 of the Convention in this regard.

Reference from the official website of the European Court of Human Rights