CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 janvier 2015

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CROATIA   (Application no. 68955/11)               JUDGMENT     STRASBOURG   15 January 2015     FINAL   15/04/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. . In the case of Dragojević v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 2 December 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 68955/11) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Ante Dragojević (“the applicant”), on 20 October 2011. 2.     The applicant was represented by Ms J. Novak, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     Relying on Article 6 § 1 and Article 8 of the Convention, the applicant alleged that the trial bench had not been impartial, that he had been subjected to unlawful secret surveillance measures and that the evidence thus obtained had been used in the criminal proceedings against him, thereby making the proceedings unfair. 4.     On 17 July 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1982 and lives in Vela Luka. 6.     He worked as a sailor on an ocean carrier for a shipping company headquartered in Croatia. A.     Investigation 7.     In 2007 the police and the State Attorney’s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta ; hereinafter: “the OSCOC”) investigated allegations of possible drug trafficking between Latin America and Europe via ocean carriers, involving several persons from Croatia. 8.     On 23 March 2007, on the basis of a police report, the OSCOC requested an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu ) to authorise the use of secret surveillance measures to tap the applicant’s telephone and covertly monitor him. 9.     The investigating judge granted the request and on the same day issued an order for the use of secret surveillance measures. Its statement of reasons reads as follows: “On 23 March 2007 the OSCOC lodged a request, no. ..., for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević. The request refers to the [police] report of 2 March 2007, concerning the use of secret surveillance measures in respect of M.R., M.V., B.Ž. and I.B., alleging probable cause to believe that [Ante Dragojević] is also involved in the commission of the offence proscribed by Article 173 §§ 2 and 3 of the Criminal Code. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and the use of these measures in respect of Ante Dragojević is also necessary for satisfactory completion of the investigation, given that there are sufficient grounds for suspecting that he has also been involved in the commission of the offence in issue. It is therefore appropriate to temporarily limit the constitutional rights and decide as above.” 10.     In the course of the further investigation the OSCOC learnt that the applicant had been using another telephone number. On 25 May 2007 it asked the investigating judge to extend the use of secret surveillance measures to tap that number. 11.     On the same day the investigating judge granted that request and issued an order, which contains the following statement of reasons: “Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for the offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code. On 25 May 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of D.Š., and the secret surveillance measure under [Article 180 §   1] (1) of the above-cited provision in respect of Ante Dragojević, who was using the telephone number ... This measure was also requested in respect of another unidentified person who was using the number ... since the results of the previous use of secret surveillance measures showed that they had made contact in order to commit the offence in issue. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means, so it is necessary to temporarily limit the constitutional rights and order the measures noted in the operative part of this order under points I and II. The OSCOC also asked that certain measures be terminated because they had not produced any result, and a decision was made accordingly as noted under point V of this order.” 12.     On 2 July 2007 the OSCOC requested that the use of secret surveillance measures be extended for a further three months. 13.     The investigating judge granted the request and on the same day issued an order based on the following statement of reasons: “Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for an offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code. On 2 July 2007 the OSCOC lodged a request for an extension of the use of secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of M.R., B.Ž. and Ante Dragojević on grounds of suspected conspiracy in drug trafficking between Latin America and Croatia. It appears, given their constant contacts, that the offence could be committed within a period of three months so it was proposed that the use of measures be extended for that period. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and given the circumstances of the offence it is necessary to extend the use of [secret surveillance] measures in order to achieve satisfactory completion of the investigation and obtaining of evidence. It is therefore decided accordingly as noted in the operative part of this order.” 14.     On 6 August 2007 the OSCOC requested the investigating judge to discontinue the use of secret surveillance measures in respect of the applicant on the grounds that the results of the investigation did not justify further secret surveillance. 15.     The investigating judge granted the request and ordered the discontinuation of secret surveillance on 7 August 2007. 16.     On 17 September 2007 the OSCOC made a new request for secret surveillance in respect of the applicant. 17.     On the same day the investigating judge issued a secret surveillance order with the following statement of reasons: “By orders under the above number secret surveillance was ordered in respect of Ante Dragojević (on 23 March 2007 and discontinued on 7 August 2007), and in respect of ... On 17 September 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević, B.Ž. and M.M. for a period of two months in connection with offences proscribed under Article 173 §§ 2 and 3 of the Criminal Code, and for the discontinuation of secret surveillance in respect of N.I and an unidentified person. In their request [the OSCOC] submits that the investigation shows that there is a possibility that these individuals could contact each other again and that they could contact N.I., who travelled to Latin America and is expected to stay there for ten months. [The OSCOC] therefore considers that by resuming the use of secret surveillance relevant information for the further investigation could be obtained. On the other hand, there has been no communication on the telephone numbers of N.I. and the unidentified person so [the OSCOC] proposes that the secret surveillance in that respect be discontinued. The investigating judge finds in the case in issue that it is necessary to temporarily limit the constitutional rights of the above-mentioned individuals since investigation by another means would not be possible. It has therefore been decided as noted under points I and II, while at the same time [certain] measures have been discontinued as noted under points III and IV of this order.” 18.     After further preliminary investigation, on 16 January 2009 the applicant was arrested and detained on suspicion of drug trafficking. 19.     The following day the Dubrovnik Police Department ( Policijska uprava Dubrovačko-neretvanska ) lodged a criminal complaint with the Dubrovnik County State Attorney’s Office ( Županijsko državno odvjetništvo u Dubrovniku ; hereinafter: the “State Attorney’s Office”) against the applicant and another person on charges of drug trafficking. 20.     On the same day the applicant was questioned by an investigating judge of the Dubrovnik County Court ( Županijski sud u Dubrovniku ). He stressed that it was true that he worked on an ocean carrier between Latin America and Europe but denied that he had anything to do with any drug trafficking. 21.     After the questioning the investigating judge opened an investigation in respect of the applicant and several other persons on suspicion of drug trafficking. The investigating judge also remanded the applicant in custody. 22.     During the investigation the investigating judge questioned several witnesses and obtained the relevant results and analyses of the use of secret surveillance measures, as well as evidence obtained following a number of searches conducted during the investigation. Throughout the proceedings the applicant was remanded in custody. B.     Proceedings on indictment 23.     After the completion of the investigation, on 10 March 2009 the State Attorney’s Office indicted the applicant and two other persons in the Dubrovnik County Court on charges of drug trafficking. The applicant was also indicted on charges of money laundering. 24.     On 11 March 2009 a three-judge panel of the Dubrovnik County Court presided over by judge Z.Č. extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision in respect of the applicant reads: “This panel considers that the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Dragojević and V. should be extended because the type and quantity of drugs which are the subject of the indictment, and the manner of commission [of the offence], indicate particularly grave circumstances of the offence for which the pre-trial detention should be extended” 25.     On 13 March 2009 the applicant’s defence lawyer asked the Dubrovnik County Court for access to and a copy of the audio recordings obtained by the use of secret surveillance measures. 26.     The request for access to the recordings was granted on 16 March 2009. 27.     On 16 March 2009 the applicant challenged the decision on his pre-trial detention before the Supreme Court ( Vrhovni sud Republike Hrvatske ). 28.     On 18 March 2009 the applicant also lodged an objection against the indictment, arguing, inter alia , that the results of the secret surveillance measures did not suggest that he had been involved in the offence. 29.     On 30 March 2009 the Supreme Court allowed the applicant’s appeal against the detention order of 11 March 2009 (see paragraphs 24 and 27 above) on the grounds that the first-instance court had failed to state any reasons why the applicant’s detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). Without releasing the applicant, it therefore ordered that the matter be re-examined. 30.     The Dubrovnik County Court complied with that order and on 6   April 2009 a three-judge panel of that court, presided over by Judge Z.Č., extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The fact that the defendant Ante Dragojević is a reoffender, who has been sentenced by a final judgment of the Split Municipal Court no. KML-160/02 of 10   July 2003, a final judgment of the Korčula Municipal Court no. K-33/05 of 25 May 2006, and a final judgment of the Korčula Municipal Court no. K-68/07 of 10   December 2007, suggests that his previous behaviour has not been in compliance with the law and that there is therefore a risk that, if at large, he might reoffend. Accordingly, this court considers that his detention should be extended under Article   102 § 1 (3) of the Code of Criminal Procedure. Furthermore, this panel considers that the detention of Ante Dragojević should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure since the type and quantity of the drug which is the subject matter of the charges and the manner of execution [of the offence] suggest that the circumstances of the offence were particularly serious and thus warrant his further detention. To be specific, cocaine is a hard drug and forty kilos of it is not an insignificant amount. Such a quantity could be distributed in a number of single doses and thus endanger the health of a number of people, particularly young people. Having regard also to the international character of the offence, and the recorded EUR 80,000 from the proceeds of the crime which surpasses the usual circumstances associated with such offences, and the criminal resolve and engagement necessary to commit the offence charged, [the court considers] that the detention should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure.” 31.     On 27 April 2009 a three-judge panel of the Dubrovnik County Court dismissed the applicant’s objection against the indictment as ill-founded (see paragraph 28 above) on the grounds that there was sufficient suspicion to warrant sending the case for trial. 32.     The applicant’s pre-trial detention was further extended by a three-judge panel of the Dubrovnik County Court, presided over by Judge Z.Č. on 5 June 2009, which reiterated the same reasons as in its previous decision. 33.     Meanwhile, Judge Z.Č., who had presided over the panels extending the applicant’s pre-trial detention (see paragraphs 24, 30 and 32 above), assumed responsibility for the applicant’s case as president of the trial bench of the Dubrovnik County Court. 34.     At hearings held on 16 and 17 June 2009 the applicant pleaded not guilty and the trial bench heard evidence from several witnesses. 35.     The applicant also applied to have the results of the secret surveillance measures excluded from the case file as unlawfully obtained evidence on the grounds that the orders for their use had not been sufficiently reasoned and had thus been contrary to Articles 180a, 181 and 182 of the Code of Criminal Procedure (see paragraph 55 below). 36.     In a short oral explanation and ruling out the possibility of appeal against his decision, the president of the trial bench dismissed the applicant’s request as ill-founded. The trial bench then examined the evidence obtained by secret surveillance. It also decided to obtain further evidence proposed by the prosecution and the applicant, and adjourned the hearing. 37.     On 4 August 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., E.Č. and M.V., extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) reiterating the reasons stated in the previous decisions on his detention. 38.     On 25 August 2009 Judge Z.Č., referring to the Court’s case-law and the case-law of the Constitutional Court ( Ustavni sud Republike Hrvatske ), asked to withdraw from the case as president of the trial bench on the grounds that his previous involvement in the case, as president of the panels which had extended the applicant’s pre-trial detention, could raise doubts about his impartiality. 39.     Following Judge Z.Č.’s request, on 26 August 2009 the President of the Dubrovnik County Court asked the Supreme Court to transfer the trial to another court since all the judges of the Criminal Division of the Dubrovnik County Court had already taken part in the applicant’s case. 40.     On 9 September 2009 the Supreme Court dismissed that request on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It held that the mere fact that a judge had presided over the panels extending the applicant’s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits. There were also no reasons to doubt the impartiality of Judge Z.Č. within the meaning of Article 36 § 2 of the Code of Criminal Procedure (see paragraph 55 below). 41.     The applicant’s detention was further extended on 1 October 2009 by a three-judge panel in which Judge Z.Č. sat as a member of the panel, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and reiterating the reasons from the previous decisions on detention. 42.     At a hearing on 26 November 2009 the trial bench questioned several witnesses and the defence again sought to have the evidence obtained by secret surveillance excluded from the case file as unlawfully obtained evidence. Ruling out the possibility of appeal, the president of the trial bench dismissed the request as ill-founded. The trial bench thus examined the evidence obtained by the use of secret surveillance measures. 43.     On 3 December 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., S.V. and M.V., extended the applicant’s detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the reasons stated in the previous decisions. 44.     At a hearing on 17 December 2009 the applicant pleaded not guilty and denied all the charges against him. The parties gave their closing statements and the trial bench concluded the hearing. 45.     On 18 December 2009 the Dubrovnik County Court found the applicant guilty on charges of drug trafficking and money laundering and sentenced him to nine years’ imprisonment. The judgment was based on an analysis of the applicant’s defence and the statements of his co-accused, as well as on the statements of witnesses, evidence obtained through numerous searches and seizures and the use of secret surveillance measures. 46.     As to the refusal to exclude the latter evidence from the case file, the Dubrovnik County Court noted: “The court found that the defence of the accused Ante Dragojević was unconvincing, contradictory and aimed at avoiding his criminal responsibility .... The court examined the audio recordings (CD) of the conversations between the accused and witnesses I.Ž. and M.R. after it had found that the recordings had been made pursuant to the orders of the investigating judge of the Zagreb County Court no. Kir-Us-14/07 authorising the telephone tapping. These were the reasons why the court dismissed the request made during the proceedings that these recordings be excluded from the case file as unlawfully obtained evidence. [Moreover] the court considered them to be lawful and acceptable evidence obtained pursuant to valid court decisions. This court also refused the request by the defence to examine the case files of the Rijeka County Court no. Kir-Us-1/09 and the Zagreb County Court no. Kir-Us-14/07 [concerning the use of secret surveillance], because it considered those requests irrelevant and obsolete for the same reasons referred to in the decisions concerning the requests for exclusion of the secret surveillance recordings from the case file. As to the request that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence on the grounds that they did not contain an assessment of the likelihood that the accused themselves or jointly with other persons had committed one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and that they did not contain an assessment of whether the investigation could be conducted by other means, this court considers that this is not correct because the orders were sufficient and well-reasoned and eventually resulted in an indictment being lodged [against the accused]. In any event, as to the request by the defence that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence, it should be noted that these are not evidence but court decisions so they cannot be excluded from the case file as unlawfully obtained evidence. And as regards the evidence obtained on the basis of these orders, this court considers that there was no breach of the Code of Criminal Procedure and therefore it does not consider them to be fruit of the poisonous tree but lawfully obtained evidence.” 47.     On 27 January and 3 February 2010 the applicant lodged an appeal against the first-instance judgment with the Supreme Court. He argued, inter alia , that the secret surveillance orders had not been properly drafted as required under the Code of Criminal Procedure given that they had not given a proper assessment of the likelihood that the offences in issue had been committed, or of the circumstances indicating that the investigation could not be conducted by other means. In his view, this had led to his unlawful surveillance and therefore any evidence thus obtained could not be used in the criminal proceedings against him. He challenged, further, the basis of the first-instance court’s reasoning in its judgment, namely, the evidence obtained through secret surveillance. The applicant also requested the Supreme Court to quash the first-instance judgment and order that a retrial be held before a differently composed trial bench. 48.     The Supreme Court dismissed the applicant’s appeal as ill-founded and upheld the first-instance judgment on 23 September 2010. It held that all relevant facts had been sufficiently and correctly established, that the applicant had had every opportunity to participate effectively in the proceedings and that the first-instance court had given sufficient reasons for its decisions. As to the alleged unlawfulness of the applicant’s secret surveillance, the Supreme Court noted: “As regards the secret surveillance orders, contrary to what is alleged in the appeal, these impugned orders contain sufficient reasons as to probable cause to believe that the offence under Article 173 § 2 of the Criminal Code was committed, as well as to the fact that the investigation into this offence could not be conducted by other means and that [such investigation] would be extremely difficult, which is evident from the fact that the investigating judge did not refuse to issue the orders. In fact he issued the orders as required under Article 182 § 2 of the Code of Criminal Procedure. It follows that the appellant’s allegation that the impugned orders of the investigating judge do not contain sufficient reasons, is erroneous and that they are therefore not unlawfully obtained evidence within the meaning of Article 9 § 2 of the Code of Criminal Procedure.” 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.” Article 35 “Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.” Article 36 “Freedom and confidentiality of correspondence and all other forms of communication are guaranteed and inviolable. Only the law may provide for restrictions necessary for the protection of national security or the conduct of criminal proceedings.” 53.     The relevant part of section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no.   49/2002) reads as follows: Section 62 “1.   Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act on the part of a State body, a body of local or regional self-government, or a legal person with public authority, concerning his or her rights and obligations or a suspicion or accusation of a criminal deed, has violated his or her human rights or fundamental freedoms or his or her right to local or regional self-government guaranteed by the Constitution (hereinafter “a constitutional right”) ... 2.   If another legal remedy exists in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after that remedy has been used.” 2.     Criminal Code 54.     The relevant part of the Criminal Code ( Kazneni zakon , Official Gazette no. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005, 71/2006) provides: Title thirteen (XIII) Criminal offences against the values of international law Abuse of Narcotic Drugs Article 173   “ ... (2)     Whoever, without authorisation, manufactures, processes, sells or offers for sale or buys for the purpose of reselling, keeps, distributes or brokers the sale and purchase of, or, in some other way and without authorisation, puts into circulation, substances or preparations which are by regulation declared to be narcotic drugs, shall be liable to a minimum sentence of three years’ imprisonment.” Title twenty-one (XXI) Criminal offences against confidence in the financial sector   and the economy Money laundering Article 279 “(1)     Whoever, in the course of a banking, financial or other business enterprise, invests, accepts, exchanges or by any other means conceals the real source of money or objects or rights obtained by that money which he or she knows has been obtained as a result of a criminal offence shall be liable to between six months and five years’ imprisonment ...” 3.     Code of Criminal Procedure 55.     The relevant provisions of the Code of Criminal Procedure ( Zakon o   kaznenom postupku , Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows: Article 9 “(1)     The courts’ decisions in criminal proceedings cannot be based on unlawfully obtained evidence (unlawful evidence). (2)     Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, domestic law or international law, or evidence obtained in breach of the rules of criminal procedure in so far as set out in this Code, as well as any other evidence obtained unlawfully. “ Transfer of jurisdiction Article 31 “ Where the competent court, for legal or practical reasons, is unable to act, it shall inform the immediately higher court, which shall, after obtaining the opinion of the State Attorney, designate another court on its territory [as the competent court]. No appeal lies against this decision.” Disqualification Article 36 “1.     A judge or lay judge shall be disqualified from sitting in a case (1)     if he has been injured by the offence; (2)     if he is the spouse, a relative by blood, either lineal, descending or ascending, or collateral to the fourth degree, or related by affinity to the second degree, to the defendant, his counsel, the prosecutor, the injured person, their legal guardian or legal representative; (3)     if he is a legal guardian, ward, adopted child or adoptive parent, foster parent or foster child of the defendant, his counsel, the prosecutor or the injured person; (4)     if in the same criminal case he has carried out measures during the investigation, or has taken part in ruling on an objection to the indictment, or if he has taken part in the proceedings as a prosecutor, defence counsel, legal guardian or legal representative of the injured person or the prosecutor, or if he has testified as a witness or as an expert witness; (5)     if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy. 2.     A judge or lay judge may be disqualified from sitting in a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt.” Article 37 “1.     A judge or lay judge, as soon as he discovers a ground for his disqualification referred to in Article 36, paragraph 1, of this Code, shall discontinue all activity in the case and report the matter to the president of the court, who shall appoint a substitute judge. ... 2.     If a judge or lay judge considers that other circumstances exist which would justify his withdrawal (Article 36, paragraph 2), he shall inform the president of the court thereof.” Grounds for Ordering Detention Section 102 “(1)     Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention: 1.     where there are circumstances which show that there is a risk that [the defendant] will abscond [is in hiding or his or her identity cannot be established, and so on); 2.     if there is a risk that he or she might destroy, hide, alter or forge evidence or traces relevant for the criminal proceedings or might suborn witnesses, or where there is a risk of collusion; 3.     special circumstances justify the suspicion that the person concerned might reoffend; 4.     where the charges relate to murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, or where detention is justified by the modus operandi or other especially grave circumstances of the offence.” Special investigative measures temporarily limiting constitutional rights and freedoms Article 180 “(1)     If an investigation by other means would either not be possible or would be extremely difficult, upon a request by the State Attorney the investigating judge can, where there is probable cause to believe that an individual, acting alone or jointly with others, has committed one of the offences proscribed under Article 181 of this Code, order in respect of that individual the following measures restricting the constitutional rights of citizens: 1.     telephone tapping, ... 3.     covert monitoring of persons and objects ...” Article 180a “Recordings, documents and objects obtained under the conditions provided for in Article 180 § 1 (1), ... (3) ... and Article 182 of this Code can be used as evidence in the criminal proceedings. ...” Article 181 “Measures under Article 180 of this Code can be ordered in respect of the following offences: 1.     ... against the values of international law (Chapter XIII) ...” Article 182 “(1)     The measures under Article 180 of this Code shall be authorised by a written reasoned order of the investigating judge. The order shall be executed by the police. The order shall stipulate all relevant information about the individual concerned, the circumstances justifying the need for the measures, the time-limits within which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope and place of the measures. ... (2)     The measures can last for a maximum period of four months. Following a request by the State Attorney, the measures can be extended for a further three months. In the event of a disagreement between the State Attorney and the investigating judge, a decision shall be taken by a [three-judge] panel (Article 20 § 2). Where there are no grounds for further surveillance, the investigating judge shall order the discontinuation of the measures. If the State Attorney drops the charges, or if the results of the measures are not relevant for the criminal proceedings, [these results] shall be destroyed under the supervision of the investigating judge, who shall draw up a record accordingly and file it in the case file. ... (6)     If measures under Article 180 of this Code have been taken without an order of the investigating judge or contrary to Articles 180 and 182 § 2 of this Code, the evidence and information thus obtained cannot be used in the criminal proceedings.. ...” Article 182a “(1)     The measures under Article 180 of this Code shall be executed by the police. During their execution, the police shall prepare daily reports and other documentation related to the recordings which, based on a special request, shall be forwarded to the investigating judge or the State Attorney’s Office. (2)     Upon the expiry of the use of the measures, the police shall submit a special report to the State Attorney’s Office and the investigating judge in which they shall indicate: 1.     the time of the beginning and end of the use of the measure; 2.     the number and nature of activities undertaken by the State officials in the execution of the measure; 3.     the type and number of technical devices used; 4.     the number and identity of persons in respect of whom the measure has been taken; 5.     the type of the offences under Article 181 of this Code which were possibly prevented by the use of the measure; 6.     a succinct analysis of the question whether the measure contributed to or achieved the aim indicated in the order for its use.” 56.     On 18 December 2008 a new Code of Criminal Procedure was enacted (Official Gazette, nos. 152/2008, 76/2009, 80/2011, 121/2011, 91/2012, 143/2012 and 56/2013) which, in so far as relevant to the instant case, provides no particular amendments to the use of secret surveillance measures. B.     Relevant practice 57.     In its decision no. U-III-857/2008 of 1 October 2008 the Constitutional Court examined a complaint about the unlawfulness of secret surveillance orders made in the course of criminal proceedings. The Constitutional Court noted the relevant principles but dismissed the complaint for non-exhaustion of domestic remedies because the appellant had failed to complain about the alleged unlawfulness of his secret surveillance during the criminal proceedings. The relevant part of the decision reads:   “8.1.     Where the secret surveillance order of the investigating judge, besides the operative part listing the measures to be conducted in respect of a person, contains nothing more in its statement of reasons than a mere statement referring to the [State Attorney’s] request for the use of secret surveillance in respect of a person ‘because there is probable cause to believe that an offence has been committed’ and that this is apparent from the [police reports], then it is clear that this breaches the constitutional guarantee of respect for private and family life under Article 35 of the Constitution, and the confidentiality of communications under Article 36 § 1 of the Constitution. 8.2.     The Constitutional Court reiterates that the guarantees of personal rights can be restricted only in order to achieve an aim provided for by law which is also proportionate to the necessity of such restriction and that this should be decided by a court (see, mutatis mutandis , decision no. U-III-4286/2007 of 26 December 2007). Pursuant to the Code of Criminal Procedure, the impugned [secret surveillance] order should have contained (a) a valid assessment of the ‘probable cause to believe that the appellant, acting either alone or jointly with others, has committed’ one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and (b) an assessment that the investigation ‘cannot be conducted by other means or would be extremely difficult’. Only such a statement of reasons guarantees that the existence of a ‘probable cause to believe’ that an offence proscribed under the law has been committed will precede the use of secret surveillance measures, that a minimum degree of probability exists that an actual – and not some possible – offence has been committed, and that the use of State powers will be logical and convincing and subsequently challengeable during the proceedings before the competent courts. 8.3.     Where the secret surveillance order has not been justified in that way, it breaches the Code of Criminal Procedure. ... 9.     However, the appellant failed to raise that complaint during the trial or in his appeal against the first-instance judgment (see paragraphs 2 and 5 above) and raised it for the first time in his constitutional complaint. Moreover, he did not use other remedies provided for in the Code of Criminal Procedure by which an accused can challenge evidence admitted in the case. ... 10.     The Constitutional Court therefore finds that the appellant has failed to exhaust the relevant remedies ...” 58.     The Supreme Court, in its decision no. I-Kž-61/09-3 of 3 February 2009, set out the relevant principles concerning the use of evidence allegedly unlawfully obtained by the use of secret surveillance measures in criminal proceedings, in the following terms: “It is to be noted that the question of the use of evidence obtained by special investigative measures in criminal proceedings is regulated under Article 182 § 6 of the Code of Criminal Procedure. This provision expressly excludes the use of such evidence obtained contrary to Articles 180 and 182 § 2 of the Code of Criminal Procedure. The submissions of the accused in support of their request for the exclusion of unlawfully obtained evidence on the grounds that the orders issued by the investigating judge (save for the one of 8 March 2008) contained no reasons and was thus ex lege unlawful evidence is not correct. Specifically, an order (just like judgments and decisions) is an act of the court and in principle (unlike judgments and decisions) contains no reasons. The duty to state reasons in court orders is exceptional where search orders and orders for the use of special investigative measures limiting constitutional rights and freedoms are concerned. The requirement for the court to give reasoned orders for the use of special investigative measures limiting constitutional rights and freedoms flows from the requirement contained in Article 182 § 1 of the Code of Criminal Procedure. The lawmaker did not, however, seek to sanction conduct of the courts contrary to Article   182 § 1 of the Code of Criminal Procedure ..., Article 182 § 6 of the Code of Criminal Procedure provides that “the results [of the use of special investigative measures] cannot be used in criminal proceedings”. It follows that the lack of reasons for the orders concerning the use of special investigative measures limiting constitutional rights and freedoms does not render the evidence thus obtained unlawful. This also follows from the wording of the part of Article 9 § 2 of the Code of Criminal Procedure which provides that unlawfully obtained evidence is evidence obtained in breach of the law on criminal procedure where such unlawfulness is expressly envisaged under a legal provision, which is not the case regarding conduct contrary to Article 182 § 1 of the Code of Criminal Procedure. With regard to conduct contrary to Article 180 of the Code of Criminal Procedure, which would provide grounds for a conclusion of unlawfulness of evidence, it is to be noted that this provision is multi-layered. Without doubt, evidence is ex lege unlawfully obtained if it is the result of the use of special investigative measures limiting constitutional rights and freedoms which have not been ordered by the court based on a request by the State Attorney; if the measures do not relate to an individual concerning one of the offences under Article   181 of the Code of Criminal Procedure; or if a measure other than those provided for by law is ordered. A further condition, referred to in the decision of the Constitutional Court [no. U-III-857/2008 of 1 October 2008; see paragraph 57 above] invoked by the appellants is the requirement that the general conditions for the use of such orders have been met, namely, the existence of probable cause to believe that an individual has committed one of the offences listed under the law, with regard to which the order is issued, and that the investigation cannot be carried out by other means or that it would be extremely difficult. It goes without saying that the investigating judge, when ruling on the request of the State Attorney, must take these general conditions into account. However, since the lack of reasons does not render the evidence obtained unlawful ex lege , the mere fact that an order has been issued based on a request by the State Attorney indicates that the general conditions have been met. However, if the investigating judge disagrees with the request to issue an order for the use of special investigative measures, and finds that the general conditions have not been met, he or she will request the panel under Article 20 § 2 of the Code of Criminal Procedure to rule on the matter, ... Of course, a citizen whose constitutional rights and freedoms are thus limited, which is possible under Article 16 of the Constitution only in accordance with the law and in order to protect the rights and freedoms of others or the legal order, public morals or health, must be able to verify whether the legal conditions, including the general ones, for such limitation have been met, in order to protect his or her constitutional rights from unjustified infringement by the executive, and possibly judicial, authorities. It is therefore understandable that the accused are now challenging the lawfulness of the orders from the perspective of the general conditions for their