Constitutional court case law

Search case law (3657 items)

Case number:
Up-1006/13
ECLI:
ECLI:SI:USRS:2016:Up.1006.13
Challenged act:
Point II of the operative provisions of Supreme Court Judgment No. I Ips 10713/2010, dated 12 September 2013, Maribor Higher Court Judgment No. II Kp 10713/2010, dated 19 December 2012, and Murska Sobota District Court Judgment No. II K 10713/2010, dated 29 February 2012
Operative provisions:
Point II of the operative provisions of Supreme Court Judgment No. I Ips 10713/2010, dated 12 September 2013, Maribor Higher Court Judgment No. II Kp 10713/2010, dated 19 December 2012, and Murska Sobota District Court Judgment No. II K 10713/2010, dated 29 February 2012, are abrogated insofar as they refer to Jože Vincetič with regard to the criminal offence of the unauthorised manufacture and sale of illicit drugs.
 
The case is remanded to the Murska Sobota District Court for new adjudication.
Abstract:
The decision to order a search of premises and the ensuing search entail a decision on an interference with an individual’s right to spatial privacy determined by the first paragraph of Article 36 of the Constitution.
 
The reasoning of an order authorising a search of premises must substantiate the reasonable grounds for the suspicion that a specific person committed a criminal offence as well as the likelihood that during the search the suspect will be apprehended or evidence of the criminal offence or objects that are important for the criminal proceedings will be found.
 
The judge must state the reasons or circumstances that are the basis for authorising a search of premises in a concrete and definitive manner already in the search order, i.e. before the interference with the individual’s right to the inviolability of dwellings, whereby the reasoning has to be such as to convince a reasonable person that the conditions for a search of premises are fulfilled. 
 
The reasoning of a court order is intended to enable a review of the judge’s assessment of whether the conditions for an interference with the right to the inviolability of dwellings determined by the first paragraph of Article 36 of the Constitution are fulfilled and thus enable subsequent control, including from the perspective of the right to appeal determined by Article 25 of the Constitution. 
 
The requirement of a prior reasoned judicial decision cannot be circumvented by subsequent judicial control, as such does not provide adequate and sufficient safeguards against potential abuses, but rather opens the door to arbitrary interferences, which explicitly contradicts the procedure determined by law.  
Thesaurus:
1.4.10.6 - Constitutional Justice - Procedure - Interlocutory proceedings - Challenging of a judge.
1.5.5.2 - Constitutional Justice - Decisions - Individual opinions of members - Dissenting opinions.
1.5.51.2.10 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Annulment/annulment ab initio of a challenged act and remanding to new adjudication.
2.1.3.2.1 - Sources of Constitutional Law - Categories - Case-law - International case-law - European Court of Human Rights.
5.3.32 - Fundamental Rights - Civil and political rights - Inviolability of the home.
5.3.30 - Fundamental Rights - Civil and political rights - Right to private life.
5.3.13.17 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Reasoning.
Legal basis:
Art. 22, Constitution [CRS]
Art. 59.1, Constitutional Court Act [CCA]
Cases joined:
¤
Full text:
Up-1006/13
9. 6. 2016
 

DECISION

 
At a session held on 9 June 2016 in proceedings to decide upon the constitutional complaint of Jože Vincetič, Murska Sobota, represented by Igor Vinčec and Andreja Tratnjek, attorneys in Lendava, the Constitutional Court
 

decided as follows

 
1. Point II of the operative provisions of Supreme Court Judgment No. I Ips 10713/2010, dated 12 September 2013, Maribor Higher Court Judgment No. II Kp 10713/2010, dated 19 December 2012, and Murska Sobota District Court Judgment No. II K 10713/2010, dated 29 February 2012, are abrogated insofar as they refer to Jože Vincetič with regard to the criminal offence of the unauthorised manufacture and sale of illicit drugs.
 
2. The case is remanded to the Murska Sobota District Court for new adjudication.
 

REASONING

 
 
A
 
1. The Murska Sobota District Court convicted the complainant of the criminal offence of robbery under the first paragraph of Article 206 of the Criminal Code (Official Gazette RS, Nos. 50/12 – official consolidated text, 6/16 – corr., 54/15, and 38/16 – hereinafter referred to as the CC-1) in conjunction with Article 20 of the CC-1, and the criminal offence of the unauthorised manufacture and sale of illicit drugs under the first paragraph of Article 186 of the CC-1. It imposed on him a total sentence of two years and four months of imprisonment. The Maribor Higher Court granted the appeal filed by the State Prosecutor and increased the complainant’s sentence to two years and ten months of imprisonment; it dismissed the appeal filed by the complainant. The Supreme Court subsequently partially granted the complainant’s request for the protection of legality and abrogated the challenged judgment with regard to the criminal offence of robbery; it remanded the case in the relevant part to the court of first instance for new adjudication. It also abrogated the decision on the total sentence and imposed on the complainant the sentence determined [by the challenged judgment] for the criminal offence of the unauthorised manufacture and sale of illicit drugs under the first paragraph of Article 186 of the CC-1.
 
2. The complainant alleges violations of the rights determined by Articles 35 and 36 of the Constitution, and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR). He states that the evidence regarding the criminal offence under the first paragraph of Article 186 of the CC-1 was obtained in a search of premises that was carried out on the basis of a court order that did not contain a reasoning and was therefore illegal and unconstitutional. It allegedly clearly follows from the second paragraph of Article 36 of the Constitution that a dwelling may not be entered against the will of the resident without a court order. The complainant maintains that an order that does not contain a reasoning, and therefore cannot be reviewed, cannot even be considered an order at all. He claims that an order for a search of premises must be such as to enable a review of the legality of the ordered interference. Therefore, it allegedly has to contain a substantiation of the statutory conditions for the search – i.e. the substantiated reasons for the suspicion that a criminal offence has been committed, and a substantiation as to why the search will enable the discovery of evidence of the criminal offence or objects that are important for the criminal proceedings. The complainant alleges that the judge performs the function of a guarantor in the procedure for issuing an order for a search of premises, and therefore he or she must verify whether a request for the execution of investigative measures contains all the necessary elements and whether it is sufficiently convincing, and he or she must also provide a substantive reasoning of such decision. In the complainant’s opinion, such reasoning has to be the result of the judge’s own thoughts and intellectual effort, while references to the request filed by the police are inadmissible. As the reasoning of the order authorising the search of premises in the complainant’s case contained only four sentences, of which only two allegedly referred to the statutory conditions, the complainant maintains that all evidence found during the search of premises that was carried out on the basis of such an unsubstantiated order has to be excluded as inadmissible, as it was allegedly obtained through a violation of constitutionally determined human rights.
 
3. The complainant further claims that at the time when the search of premises was decided on there existed no substantiated reasons for suspicion and the statutory conditions for ordering a search of premises were not fulfilled. He states that the order was based solely on the statement of an anonymous source, and its evidentiary value had not been adequately verified and confirmed. As regards the source, the police allegedly provided no circumstances that would have indicated the manner in which the police officers ascertained its reliability and the truthfulness of the information. They allegedly merely verified who the persons whom the source mentioned by aliases as those participating in the robbery were. In their request for the issuance of the order the police allegedly also misled the court, as they falsely claimed that the complainant had been living with one of his co-defendants. There thus allegedly existed no evidence that would have linked the complainant to his co-defendants. The statements of the police regarding communication between the complainant and his co-defendants in the time leading up to and following the robbery claiming that the complainant was a “street dealer” and that some electric cables had been found during an inspection of the complainant’s car two years before the robbery are allegedly completely unsubstantiated. On the contrary, subsequent verification allegedly showed that there had been no communication between the complainant and his co-defendants. The complainant therefore maintains that there existed no substantiated reasons for suspicion at the time of the issuance of the order authorising the search of premises, and consequently his right to the inviolability of dwellings was violated.
 
4. In reply to the complainant’s allegations that the order authorising the search of premises was unsubstantiated, the Supreme Court replied that, in accordance with established case law, not every irregularity with regard to the execution of an investigative measure necessarily results in the inadmissibility of the evidence obtained thereby. The types of violations that necessarily result in such are allegedly expressly determined by Article 219 of the Criminal Procedure Act (Official Gazette RS, Nos. 32/12 – official consolidated text, 47/13, and 87/14 – hereinafter referred to as the CrPA).[1] According to the position of the Supreme Court, the purpose of the reasoning of a court order authorising an investigative measure is to ensure the possibility of the subsequent review of the legality of the investigative measure. Therefore, the mere fact that an order authorising a search of premises contains a rather weak reasoning allegedly does not entail such a violation with regard to the execution of an investigative measure that one could claim that the search of premises had been carried out without a written court order and that the sanction determined by Article 219 of the CrPA applies. In the assessment of the Supreme Court, the deficient reasoning entails a violation of Article 215 of the CrPA, and therefore such practice must be limited or eliminated. However, in its assessment, a judgment of conviction cannot be based on evidence obtained during a search of premises only if due to a deficient search order, request, or the documents attached thereto one cannot conclude that there exist reasonable grounds for the suspicion that a specific person committed a criminal offence. When assessing the case at issue, the Supreme Court confirmed the positions of the lower courts that according to the information contained in the request for the search of premises and the official notes of the police attached thereto there existed substantiated reasons for the suspicion that the complainant, acting together with the other suspects, committed the criminal offence of robbery. The Supreme Court deemed that although the order authorising the search of premises contains neither the concrete circumstances that gave rise to the substantiated reasons for suspicion, nor does it substantiate such, these circumstances are included in the request of the police for the issuance of the order which the court referred to in the order.
 
5. By Order No. Up-1006/13, dated 16 June 2015, the Constitutional Court accepted the constitutional complaint for consideration. In accordance with the first paragraph of Article 56 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12 – hereinafter referred to as the CCA), it informed the Supreme Court of the acceptance of the constitutional complaint.
 
 
B – I
 
6. In the proceedings to decide on the constitutional complaint the Constitutional Court reviewed Murska Sobota District Court case file No. II K 10713/2010.
 
7. It follows from the criminal case file that the investigating judge issued two orders authorising searches of premises against the complainant. Order No. Kpd 11378/2009, dated 15 December 2009, authorised a search of premises at the address Vrtna Street 3 in Murska Sobota, and Order No. 11782/2009, dated 16 December 2009, a search of apartment No. 13 at the address Staneta Rozmana 2, Murska Sobota. Both orders contain the same reasoning, which reads as follows: “From the request of the Criminal Sector of the Police Directorate in Murska Sobota No. […] there follows a reasonable suspicion that Vincetič Jože committed a criminal offence under Art. 206/II CC-1. On the basis of the findings contained in the request the court deems it likely that during the search of premises evidence of the criminal offence will be discovered and objects that are important for the criminal proceedings for evidentiary purposes will be found, including in particular plastic cable ties, electric cables, dark caps with cut-outs for eyes, an electric stun gun, and insulating tape. Therefore, all statutory conditions for the issuance of this order are fulfilled.”
 
8. Police officers only executed Order No. Kpd. 11782/2009 and carried out a search of premises against Jože Vincetič in apartment No. 13 at the address Staneta Rozmana 2, Murska Sobota. The police officers did not find any objects connected with the criminal offence of robbery during the search of premises, they did, however, find 82.88 g of cannabis. Consequently, criminal proceedings for the criminal offence of the unauthorised manufacture and sale of illicit drugs under the first paragraph of Article 186 of the CC-1 were instituted against the complainant as well. The subject matter to be decided on in these constitutional complaint proceedings only concerns the judicial decisions that refer to that criminal offence.
 
 
B – II
 
9. It further follows from the criminal case file that on 8 November 2013, acting upon the request of the complainant’s defence attorney, the Supreme Court issued a corrective order rectifying Point I of the operative provisions of its Judgment No. I Ips 10713/2010, dated 12 September 2013, by adding the text “in the abrogated part the case is remanded to the court of first instance for new adjudication” at the end of that Point. Despite this, the operative provisions of the Supreme Court judgment remain deficient, as they do not show how the Supreme Court decided on the complainant’s request for the protection of legality insofar as it referred to the criminal offence under the first paragraph of Article 186 of the CC-1. Based on the fact that the Supreme Court pronounced a sentence for this criminal offence (Point II of the operative provisions) and on the statement in Paragraph 25 of the reasoning of the Supreme Court Judgment that it partially granted the complainant’s request for the protection of legality, the Constitutional Court deems that the Supreme Court dismissed the complainant’s request for the protection of legality in the mentioned part.
 
 
B – III
 
10. Throughout the criminal proceedings the complainant claimed that the order authorising the search of premises was not sufficiently substantiated, and therefore the evidence obtained during the search had to be excluded from the case file as inadmissible. In the complainant’s opinion, the reasoning of a court order authorising a search of premises is intended to enable a subsequent review of whether the interference with the complainant’s right to the inviolability of his or her privacy and dwelling was legal and in accordance with Articles 35 and 36 of the Constitution.
 
11. Article 35 of the Constitution guarantees the inviolability of the physical and mental integrity of every person and their privacy and personality rights. The right to privacy determines the area of an individual's own activity in which he or she is the one who decides which intrusions he or she will allow. The more the sphere of an individual's private life is intimate, the greater the legal protection he or she must enjoy. This is even truer when it is admissible that the state or competent state authorities interfere therewith.[2] In addition to this general provision regarding the protection of privacy, the first paragraph of Article 36 of the Constitution contains a special provision that specifically protects the inviolability of dwellings or the so-called spatial aspect of privacy.[3] In accordance with established constitutional case law, an individual is protected from having his or her conduct revealed where he or she legitimately expects to be left alone. His or her dwelling is the first but not the only such place. The individual is protected everywhere he or she can reasonably expect that he or she will not be exposed to the eyes of the public and where this is also evident to others.[4] The Constitution thus does not protect the dwelling as an object, but an individual’s privacy in such a place.[5] What is protected is the dwelling as a home, i.e. as privacy on residential premises where an individual reasonably expects privacy and deems such premises to be his or her residential premises.[6] 
 
12. The decision to order a search of premises and the ensuing search entail a decision on an interference with an individual’s right to the inviolability of his or her dwelling, i.e. on an interference with his or her right to spatial privacy determined by the first paragraph of Article 36 of the Constitution. The following paragraphs of Article 36 of the Constitution determine special conditions for interferences with this right: no one may, without a court order, enter the dwelling or other premises of another person, nor may they search such, against the will of the resident (the second paragraph), any person whose dwelling or other premises are searched has the right to be present or to have a representative present (the third paragraph), such a search may only be conducted in the presence of two witnesses (the fourth paragraph), and the fifth paragraph of Article 36 determines the conditions, subject to statutory regulation, under which an official may enter the dwelling or other premises of another person without a court order, and may in exceptional circumstances conduct a search in the absence of witnesses. Despite the fact that the conditions for conducting a search of premises are determined by the Constitution in considerable detail, the reference to statutory regulation indicates that the constitution framers did not intend to regulate all aspects of searches of premises exhaustively and exclusively in the Constitution. The provisions of the CrPA that regulate searches of premises therefore constitute the statutory basis for interferences with the right to the inviolability of dwellings.
 
13. In accordance with the first paragraph of Article 214 of the CrPA, a dwelling or other premises of a suspect or of third persons may only be searched if there exist reasonable grounds for the suspicion that a specific person committed a criminal offence and it is likely that during the search the suspect will be apprehended or evidence of the criminal offence or objects that are important for the criminal proceedings will be found. A search of premises may only be conducted without the consent of the person whose dwelling or premises are to be searched if so ordered by a court by means of a written order containing a reasoning (the first paragraph of Article 215 of the CrPA) or if the conditions determined by the first paragraph of Article 218 of the CrPA are met.[7] If during a search of premises or a personal search objects are found that are not connected to the criminal offence regarding which the search has been ordered, but they indicate that another criminal offence that is prosecuted ex officio has been committed, they shall be recorded in the minutes and seized in accordance with Article 217 of the CrPA. However, in accordance with Article 219 of the CrPA, a court decision may not be based on evidence found during a search of premises if such was conducted without a written court order (the first paragraph of Article 215), or without the presence of the persons who have to be present at a search (the first and third paragraphs of Article 216), or if the search was conducted contrary to the provisions of the first, third, and fourth paragraphs of Article 218 of the CrPA.
 
14. The CrPA does not explicitly determine the content of the reasoning of an order authorising a search of premises. However, in light of the first paragraph of Article 214 of the CrPA, it is clear that it must provide reasons substantiating the reasonable grounds for the suspicion that a specific person committed a criminal offence as well as the likelihood that during the search the suspect will be apprehended or evidence of the criminal offence or objects that are important for the criminal proceedings will be found.[8] It follows from the case law that an order authorising a search of premises must also contain information on the person against whom the search is to be conducted and it must identify the suspect and the premises that will be searched.[9] The essence of prior judicial control is in ensuring that the judge who decides on the request for a search order verifies, as a representative of the judicial branch of power, whether the constitutional and statutory conditions for the search of premises are fulfilled. In doing so, the judge plays the role of a guarantor, i.e. the guardian of suspects’ rights and the supervisor of the work of the prosecution and the police. Such entails that the judge must first review in a critical, independent, and impartial manner whether the conditions for a search of premises are fulfilled, and subsequently also provide an appropriate reasoning of that decision. The statutory requirement that the court order has to contain a reasoning is namely not an end in itself, but is intended to prevent arbitrary conduct by the prosecuting authorities and possible abuses, as well as to ensure subsequent judicial control. The reasoning of the order thus plays a double role: it enables the verification of the fulfilment of the constitutional and statutory conditions for ordering a search of premises as well as the development of case law regarding the situations in which interferences of prosecuting authorities with the privacy of individuals are admissible.[10] As it is essential for the execution of a search of premises that the search is ordered and executed in an unexpected manner, the individual against whom a search of premises is to be conducted does not have the possibility to participate in the procedure to decide on the request to order the search of premises or to use effective legal remedies at that point. Therefore, it is even more important that the reasoning of an order authorising a search of premises ensures the possibility to subsequently verify whether the statutorily determined conditions for ordering the search were fulfilled and whether the search was constitutionally admissible.
 
15. The Constitutional Court already considered the question of how detailed the reasoning of a court decision entailing an interference with human rights has to be in Decision No. Up-2094/06, dated 20 March 2008.[11] It initially drew attention to the fact that “[t]he consistent application of statutory provisions regulating the procedure for ordering secret surveillance measures is not merely a formalistic requirement. It is a mechanism that courts must apply in order to prevent abuses in the collection of evidence. Thus the fact that the request of the police and the request of the state prosecutor contain a reasoning does not relieve the investigating judge of the duty to substantiate the existence of the statutory conditions for authorising a measure. In the orders, the investigating judge should have stated the facts and circumstances from which follow substantiated grounds for the suspicion that criminal offences [...] were committed and the reasonable suspicion that these criminal offences were committed by certain means of communication, and should have substantiated that the use of the measure was absolutely necessary in relation to the collection of evidence by other means (i.e. the necessity of collecting evidence in such manner). Instead, the investigating judge merely referred to the request of the prosecutor and assessed that it meets such requirements.” However, according to the Constitutional Court, this deficiency did not entail a violation of Articles 35 and 37 of the Constitution, and therefore the constitutional complaint was dismissed. The mentioned violation could have existed “if the courts proceeded from the standpoint that a review of whether the statutory conditions for ordering a measure that interferes with the right of the affected person determined by the first paragraph of Article 37 of the Constitution was not necessary, because the reasons for authorising the measure follow from the request of the state prosecutor (the person representing the interests of criminal prosecution).” However, as in that case the investigating judge deemed that the request of the state prosecutor contained all of the elements determined by the first paragraph of Article 152 of the CrPA, and she also established the existence of the conditions for ordering measures in accordance with point 1 of the first paragraph of Article 150 of the CrPA, she thus performed a review of whether the statutory conditions for ordering secret surveillance measures were fulfilled and satisfied the standards in the absence of which a trial cannot be deemed fair.
 
16. In accordance with established constitutional case law, the reasoning of a court decision entails a specific aspect of the right determined by Article 22 of the Constitution.[12] Already in Decision No. U-I-18/93, dated 11 April 1996 (Official Gazette RS, No. 25/96, and OdlUS V, 40),[13] the Constitutional Court adopted the position that any decision of a court must contain a concrete (and not an abstract or general) reasoning with regard to every essential point that enables a review of whether the state observed to a sufficient degree all the requirements imposed on it by statutory provisions regarding the burden of allegation and the burden of proof. Such entails that the reasons on which a court based its decision have to be provided in a concrete manner and with sufficient clarity.[14] The requirement that court decisions must contain a reasoning is also an essential part of the right to a fair trial, which is guaranteed by Article 22, the first paragraph of Article 23, and, as regards criminal proceedings, Article 29 of the Constitution.[15] An appropriate reasoning is concurrently also a precondition for a review of whether an adopted decision is reasonable.[16]
 
17. The duty of courts to state the reasons for their decisions also derives from Article 6 of the ECHR, as the European Court of Human Rights (hereinafter referred to as the ECtHR) has also highlighted in its judgments. The scope of such duty is conditional upon the nature of the decision and the circumstances of the individual case.[17] The ECtHR inter alia highlighted the importance of the reasoning of a court order in its Judgment in Dragojević v. Croatia, dated 15 January 2015.[18] It considered the case from the perspective of the right to respect for private and family life determined by Article 8 of the ECHR; it established a violation of that right, and in the reasoning of its decision it also adopted positions regarding the reasoning of court orders that interfere with human rights. In that case the order authorising the investigative measure of secret surveillance namely did not contain any concrete details or circumstances that would have enabled the conclusion that there existed the required degree of suspicion that a specific person committed a criminal offence and that the investigation could not be conducted by other means entailing a less severe interference with human rights. The ECtHR stressed that judicial control of the fulfilment of the conditions for issuing an order (i.e. the required degree of suspicion as well as the fact that the measure was necessary and proportionate in the light of the circumstances of the concrete case) ensures that secret surveillance measures will not be ordered arbitrarily, in an unequal manner, and without due reflection.[19] The ECtHR characterised as unacceptable the position adopted by the Croatian Supreme Court and the Croatian Constitutional Court that, regardless of the clear statutory requirement that the measure of surveillance may only be carried out on the basis of a prior court order containing a reasoning, the lack of a reasoning in such order could be remedied by means of a subsequent review and a reasoning provided during later stages of the criminal proceedings.[20] In the opinion of the ECtHR, in a situation where the legislature envisaged detailed and prior judicial control, such requirement cannot be circumvented by subsequent judicial control, as such does not provide adequate and sufficient safeguards against potential abuses, but rather opens the door to arbitrary interferences, which explicitly contradicts the procedure clearly determined by law.[21]
 
18. With regard to the requirement that a court decision must contain a reasoning, the Constitution provides essentially the same scope of protection as the ECHR, while with regard to interferences with spatial privacy the requirements determined by Article 36 of the Constitution are even stricter. Therefore the Constitutional Court reviewed the allegations of the complainant from the perspective of the requirements determined by Articles 22 and 36 of the Constitution.
 
 
B – IV
 
19. In the case at issue, in the reasoning of Order No. Kpd 11782/2009 authorising a search of premises, dated 16 December 2009, the investigating judge referred to the request of the police to issue an order, to which three official notes had been attached. He further wrote that from the request there follows the reasonable suspicion[22] that the complainant committed the criminal offence of robbery and that he deems it to be likely that certain objects will be found. As has already been mentioned, while the order for the search of premises was authorised with regard to the criminal offence of robbery, during the search police officers found objects that indicated the commission of another criminal offence that is prosecuted ex officio, namely the criminal offence of the unauthorised manufacture and sale of illicit drugs under the first paragraph of Article 186 of the CC-1. The case thus concerned the situation regulated by Article 217 of the CrPA. Thus the order authorising the search should have (inter alia) contained a reasoning clarifying the grounds for the assessment of the investigating judge that there existed reasonable grounds for the suspicion that the complainant had committed the criminal offence of robbery. However, Order No. Kpd 11782/2009, dated 16 December 2009, on the basis of which the police officers carried out the search of premises does not contain an assessment of the conditions determined by the first paragraph of Article 214 of the CrPA, although the first paragraph of Article 215 of the CrPA clearly determines that a court shall order a search of premises by a written order containing a reasoning.
 
20. As stated in Paragraphs 11 and 12 of the reasoning of this Decision, a search of premises entails a severe interference with the human right to privacy determined by the first paragraph of Article 36 of the Constitution. Therefore, the court must review in advance, i.e. before issuing an order authorising a search of premises, whether the conditions for a search of premises are fulfilled. A judge’s consideration of a case is reflected in the reasoned order authorising a search of premises, in which the judge must clarify on what basis he or she deems that there exist reasonable grounds for the suspicion that a specific person committed a criminal offence as well as why he or she deems that it is likely that the objects sought will be found precisely in the possession of a specific person and at a specific address.[23] The fact that the request to order a search of premises contains a reasoning does not relieve the investigating judge of the duty to review the fulfilment of the conditions for ordering a search of premises and to provide a thorough reasoning of the decision thereon. In doing so, the judge may refer to the documents submitted by the police or the prosecution, as these documents are usually the only source of information for the investigating judge, however, such reference cannot replace the judge’s own consideration of whether the conditions for a search of premises are in fact fulfilled. The decision on the interference with the inviolability of dwellings is namely reserved for the judge as a representative of the judicial branch of power and not for the prosecution or the police. Therefore, the judge must critically and thoroughly consider whether the submitted information justifies an interference with a human right, and the reasons underlying this decision have to be evident from the reasoning of the court order. Only in such a manner is it possible to prevent unjustified interferences with the inviolability of dwellings in instances where the relevant (statutory and) constitutional conditions are not fulfilled, taking into account that, at the moment they are ordered, the presumption of innocence determined by Article 27 of the Constitution still applies.[24] The statutory and constitutional requirements that have to be fulfilled for a search of premises are namely not intended to protect individuals who engage in criminal activity, but to protect all persons with regard to whom sufficient reasons to justify an interference with their privacy do not exist.
 
21. In light of the above statements and the position from the ECtHR Judgment in Dragojević v. Croatia, the Constitutional Court has amended its position from Decision No. Up-2094/06. Namely, If we accept that a mere reference to the request of the prosecution or the police to order a search of premises constitutes a sufficient reasoning of such an order and if our consideration of the judge’s assessment is based solely on the fact that he or she ordered the search, we would thereby renounce not only the judge’s function as guarantor, which has become increasingly important in the course of the development of criminal procedure, but also effective subsequent review of whether the interference was in accordance with the CrPA and the Constitution. Therefore, the judge must state the reasons or circumstances that were the basis for ordering a search of premises in a concrete and definitive manner already in the search order, i.e. before the interference with the right to the inviolability of a dwelling occurred, whereby the reasoning has to be such as to convince a reasonable person that the conditions determined by the first paragraph of Article 214 of the CrPA were fulfilled. Only such a reasoning of an order authorising a search of premises also enables effective subsequent review (by a higher instance court). Retrospective substantiation of the existence of the conditions for a search of premises namely does not provide adequate safeguards from potential abuses. This is particularly true if objects that are linked to criminal offences are found during a search of premises, as the discovered objects have a psychological effect that prevents an independent assessment of whether the conditions for a search of premises were fulfilled at the moment when the request of the police was decided on.[25]
 
22. Therefore, the order authorising the search of premises in the case at issue should have contained a concrete reasoning with regard to the conclusion that there existed reasonable grounds for the suspicion that the complainant had committed the criminal offence of robbery as well as a substantiation of the basis on which the judge formulated his or her assessment. The police namely suspected that the complainant was involved in the criminal offence of robbery. The 82.88 g of cannabis, indicating the commission of another criminal offence, was only found during a search of premises. It is therefore logical that the reasoning of the search order did not contain reasonable grounds for suspicion with regard to the criminal offence under the first paragraph of Article 186 of the CC-1, and the complainant does not challenge such. The interference with the complainant’s spatial privacy, i.e. the search of the apartment in which the complainant lived, was only authorised on the basis of the court order authorising a search of premises with regard to the criminal offence of robbery. However, a reasoning of the existence of reasonable grounds for the suspicion that the complainant had committed the criminal offence of robbery cannot be found in the reasoning of the order authorising the search of the premises. With regard to such, the investigating judge namely only referred to the request for ordering a search of the premises submitted by the police without himself listing the reasons that convinced him that all of the conditions for ordering a search of the premises were fulfilled. Although in the light of such one cannot confirm the complainant’s statement that this is equivalent to a situation where no order had been issued at all, it is possible to conclude that such an order does not contain a reasoning establishing that the conditions for the severe interference with privacy at issue here were fulfilled. Consequently, as the order authorising the search of premises was substantively empty, the courts that decided on the complainant’s allegation that the order lacked an adequate reasoning could not assess the possible violation of the right to privacy determined by the first paragraph of Article 36 of the Constitution in a constitutionally consistent manner. Such consideration would only have been possible if the investigating judge had provided a substantive reasoning of his decision to authorise the search of the complaint’s premises. Proceedings regarding a new criminal offence due to the discovered drugs could only have been instituted on the basis of a constitutionally consistent interference with the complainant’s right to spatial privacy that was based on a prior court order elaborating the reasonable grounds for the suspicion that the complainant had committed the criminal offence of robbery. Evidence that is accidentally discovered by the police during a search of premises with regard to another criminal offence may namely only be used if these conditions are fulfilled.[26]
 
23. Although the Supreme Court held that the deficient reasoning undoubtedly entailed a violation of the first paragraph of Article 215 of the CrPA, according to its position, this deficiency does not entail that the evidence produced by the search is inadmissible.[27] It highlighted that the deficiencies that have such an effect are determined by Article 219 of the CrPA. However, according to the position of the Supreme Court, the mere fact that an order authorising a search of premises contains a “rather weak” reasoning does not entail such a violation that it can be claimed that the search of the premises was carried out without a written court order and that the consequence determined by Article 219 of the CrPA would ensue. In the assessment of the Supreme Court, a judgment of conviction cannot be based on evidence obtained during a search of premises only if due to a deficient search order, request, or the documents attached thereto it cannot be concluded that there exist reasonable grounds for the suspicion that a specific person committed a specific criminal offence. According to the information contained in the request for the search of premises and the official notes of the police attached thereto, the Supreme Court held that there existed reasonable grounds for the suspicion that the complainant, acting together with the other suspects, committed the criminal offence of robbery.
 
24. As the Supreme Court already established in the challenged judgment, an order authorising a search of premises that does not contain a reasoning entails a violation of the first paragraph of Article 215 of the CrPA. However, the right to a reasoned court order is not merely a statutory right, but is also a constitutionally determined and protected human right enshrined in Article 22 of the Constitution. The fact that the reasoning of an order authorising a search of premises is substantively empty constitutes not only a breach of the statutory requirement of a reasoned order determined by the first paragraph of Article 215 of the CrPA, but also a violation of the constitutional human right determined by Article 22 of the Constitution. The first category of evidence that a judicial decision may not be based on is defined by the first part of the second paragraph of Article 18 of the CrPA as evidence obtained through a violation of constitutionally determined human rights and fundamental freedoms. The Constitutional Court does not have to establish whether the Constitution requires precisely such statutory regulation of the exclusion of evidence in instances of violations of human rights or fundamental freedoms as the regulation contained in the mentioned Article of the CrPA. In accordance with the fifth paragraph of Article 15 of the Constitution, the legislature may enact a higher level of protection of a human right than that determined by the Constitution.[28] It may proceed in such a manner provided that it does not inadmissibly interfere with any other constitutionally protected value. It has not been demonstrated that the case at issue concerns such a constitutionally disputable regulation. It does, however, concern a situation that requires a review of the constitutionality of the position that a piece of evidence that is marred by a violation of a constitutionally guaranteed human right does not have to be excluded. The court namely authorised an interference with the complainant’s spatial privacy without stating in the court order the reasons for the conclusion that the (statutory and) constitutional conditions for an interference with the complainant’s right to spatial privacy were fulfilled. Thereby it violated the complainant's right to a reasoned judicial decision determined by Article 22 of the Constitution. The reasoning of a court order is intended to enable a review of the judge’s assessment of whether the conditions for an interference with the right to the inviolability of dwellings determined by the first paragraph of Article 36 of the Constitution were fulfilled and thus to enable subsequent control, including from the perspective of the right to appeal determined by Article 25 of the Constitution. Therefore, an order authorising a search of premises containing a deficient reasoning cannot be remedied by means of subsequent control (by a higher instance court) that is carried out by the courts after the search of premises has already been executed. The essence of subsequent control namely does not lie in a review by the Supreme Court (and previously by a Higher and a District Court) substituting for the lack of a review by the investigating judge, but in verifying whether the review performed by the investigating judge in advance, i.e. before the search of the premises, was in accordance with the provisions of the CrPA and the Constitution. If the order does not contain the reasons underlying such review of the investigating judge, it cannot be replaced by a review that the Supreme Court performs instead of him or her and in retrospect. The requirement of a prior reasoned judicial decision namely cannot be circumvented by subsequent judicial control, as such does not provide adequate and sufficient safeguards against potential abuses, but it opens the door to arbitrary interferences, which explicitly contradicts the procedure determined by law, as was also highlighted by the ECtHR in the cited judgment.  
 
25. By ordering a search of premises against the complainant by means of the challenged court order, which did not contain the reasons underlying the assessment of whether the conditions for an interference with spatial privacy were fulfilled, the investigating judge thus violated the complainant’s right to a reasoned judicial decision determined by Article 22 of the Constitution. In light of Paragraphs 20 and 24 of this reasoning, the execution of the search of the premises on the basis of an order that did not contain a reasoning could also have resulted in an inadmissible violation of the complainant's right to the inviolability of his dwelling determined by the first paragraph of Article 36 of the Constitution. The positions expressed by the Supreme Court, the Higher Court, and the District Court in the challenged judgments entail the same violation, as the courts deemed that they could replace the explicit statutory requirement of a prior reasoned court order with subsequent judicial control of whether the conditions for a search of premises were fulfilled. As the mentioned human rights were not observed in the authorisation of the search of premises with regard to the criminal offence of robbery, the evidence of the other criminal offence that was inadvertently discovered by the police when executing the search of the premises is thus marred by the same violations. Therefore, the Constitutional Court abrogated the challenged judgments insofar as they referred to the complainant with regard to the criminal offence under the first paragraph of Article 186 of the CC-1 (Point 1 of the operative provisions), and remanded the case to the court of first instance for new adjudication (Point 2 of the operative provisions).
 
 
C
 
26. The Constitutional Court reached this Decision on the basis of the first paragraph of Article 59 of the CCA, composed of: President Mag. Miroslav Mozetič, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, and Dr Jadranka Sovdat. Judge Jan Zobec was disqualified from deciding on the case. The Constitutional Court adopted the Decision by five votes against two. Judges Jadek Pensa and Pogačar voted against. Judge Jadek Pensa submitted a dissenting opinion.
 
 
Mag. Miroslav Mozetič
President
 
[1] The Criminal Procedure Act was amended several times during the course of the criminal proceedings against the complainant, however the provisions of Articles 214–219 remained essentially the same.
[2] Cf. Constitutional Court Decisions No. U-I-272/98, dated 8 May 2003 (Official Gazette RS, No. 48/03, and OdlUS XII, 42), Paragraph 20 of the reasoning, and No. U-I-40/12, dated 11 April 2013 (Official Gazette RS, No. 39/13, and OdlUS XX, 5), Paragraph 14 of the reasoning.
[3] A substantive connection between the right to privacy and the right to the inviolability of dwellings is also indicated by the first paragraph of Article 8 of the ECHR, which reads as follows: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The first paragraph of Article 17 of the International Covenant on Civil and Political Rights (Official Gazette SFRY, No. 7/71, and Official Gazette RS, No. 35/92, and MP No. 9/92 – ICCPR) contains essentially the same guarantee, namely: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”
[4] Constitutional Court Decision No. U-I-25/95, dated 27 November 1997 (Official Gazette RS, No. 5/98, and OdlUS VI, 158), Paragraph 75 of the reasoning. Cf. also Constitutional Court Decisions No. Up-430/00, dated 3 April 2003 (Official Gazette RS, No. 36/03, and OdlUS XII, 57), No. U-I-40/12, and No. U-I-115/14, Up-218/14, dated 21 January 2016 (Official Gazette RS, No. 8/16).
[5] Cf. Paragraphs 23, 24, and 31 of the reasoning of Decision No. U-I-115/14, Up-218/14. Cf. also Š. Horvat, Zakon o kazenskem postopku s komentarjem [The Criminal Procedure Act with Commentary], GV Založba, Ljubljana 2004, p. 507, and L. Šturm (ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 388.
[6] Constitutional Court Decision No. Up-3381/07, dated 4 March 2010 (Official Gazette RS, No. 25/10).
[7] In accordance with the first paragraph of Article 218 of the CrPA police officers may “[…] enter someone’s dwelling or other premises also without a court order and conduct a search if necessary, provided the resident so requests, someone is calling for help, such is necessary for the apprehension of a flagrant perpetrator of a criminal offence, or such is necessary for the safety of persons and property, if according to the order of a competent state authority the person has to be detained or brought in or if the person fled onto such premises.”
[8] Cf. Š. Horvat, op. cit., pp. 509–510, and K. Šugman Stubbs, P. Gorkič, Dokazovanje v kazenskem postopku [Evidence in Criminal Proceedings], GV Založba, Ljubljana 2011, pp. 129–130.
[9] Cf., e.g., Supreme Court Judgments No. I Ips 214/97, dated 28 November 2002, and No. I Ips 11861/2010, dated 11 July 2012.
[10] Cf. Paragraph 16 of the reasoning of Constitutional Court Decision No. Up-2094/06, dated 20 March 2008 (Official Gazette RS, No. 37/08, and OdlUS XVII, 28).
[11] The subject of review was the order by which the investigating judge authorised the implementation of a secret surveillance measure (i.e. surveillance of telecommunications, including interception and recording), but the positions adopted therein are generally applicable to the reasoning of orders that interfere with human rights.
[12] Cf. e.g. Decisions No. Up-399/05, dated 15 May 2008 (Official Gazette RS, No. 55/08, and OdlUS XVII, 32), and No. Up-2442/06, dated 4 December 2008 (Official Gazette RS, No. 119/08, and OdlUS XVII, 95).
[13] See Paragraph 73 of the reasoning.
[14] See, e.g., Constitutional Court Decision No. Up-195/00, dated 15 November 2001 (Official Gazette RS, No. 96/01, and OdlUS X, 230), Constitutional Court Order No. Up-189/02, dated 21 May 2002 (OdlUS XI, 130), and Constitutional Court Decisions No. Up-150/03, dated 12 October 2005 (Official Gazette RS, No. 101/05, and OdlUS XIV, 100), No. Up-147/09, dated 23 September 2010 (Official Gazette RS, No. 83/10), and No. Up-162/09, dated 16 December 2010 (Official Gazette RS, No. 3/11).
[15] See Constitutional Court Decision No. Up-729/03, U-I-187/04, dated 8 July 2004 (Official Gazette RS, No. 83/04, and OdlUS XIII, 81).
[16] Constitutional Court Decision No. Up-1381/08, dated 23 September 2009 (Official Gazette RS, No. 80/09).
[17] Cf., e.g., the ECtHR Judgments in Ruiz Torija v. Spain, dated 9 December 1994, Hiro Balani v. Spain, dated 9 December 1994, Garcia Ruiz v. Spain, dated 21 January 1999, Helle v. Finland, dated 19 December 1997, Hirvisaari v. Finland, dated 27 September 2001, and Salov v. Ukraine, dated 6 September 2005.
[18] The Judgment refers to a case wherein surveillance of the complainant’s telephone was ordered by a court order containing a weak reasoning in which the investigating judge only referred to the prosecution’s request to order the measure, and added a transcript of the statutory text stating that “the investigation cannot be carried out by other means.”
[19] Cf. Paragraph 94 of the reasoning, as well as the ECtHR Judgment in Klass and others v. Germany, dated 6 September 1978, Paragraph 51 of the reasoning.
[20] It follows from the Judgment that by Decision No. U-III-857/2008, dated 1 October 2008, the Croatian Constitutional Court first adopted the position that a court order that was insufficiently reasoned violated the right to the inviolability of privacy, but subsequently amended such position by Decision No. U-III-2781/2010, dated 9 January 2014 (see Paragraphs 93 and 96 of the reasoning).
[21] Cf. in particular Paragraphs 97 and 98 of the reasoning.
[22] This is an evident error, as the Act Amending the Criminal Procedure Act (Official Gazette RS, No. 43/04 – CrPA-F), which entered into force on 23 May 2004, lowered the standard of suspicion for searches of premises to reasonable grounds for suspicion. Consequently, also in accordance with the first paragraph of Article 214 of the CrPA in force at that time (the search of premises was ordered on 16 December 2009) the authorisation of a search of premises was conditional upon the existence of reasonable grounds for the suspicion that a specific person committed a criminal offence, and not (or, to be precise, no longer) on a reasonable suspicion thereof. 
[23] As has already been stated, in accordance with the case law, in the reasoning of a search order the judge must also define or determine the scope, limits, and aims of the search, meaning that he or she has to state what premises are to be searched and what objects are to be seized or what evidence is to be sought (cf. Supreme Court Judgment No. I Ips 17128/2010, dated 31 January 2013, Paragraph 8 of the reasoning).
[24] Article 27 of the Constitution determines as follows: “Any person charged with criminal conduct shall be presumed innocent until found guilty by a final judgement.”
[25] The case law of the Supreme Court also requires that the grounds that substantiate the required standard of proof that a person committed a criminal offence (or that he or she is in the process of committing a criminal offence) have to be established already by the moment when the investigative measure is authorised, and they may not be substantiated retrospectively by evidence obtained through the investigative measure. Cf., e.g., Judgment No. I Ips 333/2005, dated 3 November 2005.
[26] Cf. Constitutional Court Order No. Up-366/05, dated 19 April 2007, Paragraph 22 of the reasoning.
[27] In this regard, it relied on its established case law as follows from Supreme Court Judgment No. I Ips 17128/2010.
[28] The provision determines that no human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the grounds that this Constitution does not recognise that right or freedom or recognises it to a lesser extent. “Legal acts in force in Slovenia” are not only international instruments but also laws.
 
 
 
 
Up-1006/13    
6. 7. 2016
 
 
The Dissenting Opinion of Judge Dr Dunja Jadek Pensa to Decision No. Up-1006/13, dated 9 June 2016
 
 
I
 
1. I agree with the majority of the judges that the positions regarding the Convention right adopted in the judgment of the European Court of Human Rights (hereinafter referred to as the ECtHR) that are in collision with the position of the Constitutional Court merit attention. Namely, already due to the fifth paragraph of Article 15 of the Constitution, which (inter alia) commands a broader scope of protection of an individual human right if such is regulated by legal acts in force in Slovenia. There is no doubt that the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR) is such an act. A position from an ECtHR judgment may thus constitute an important reason for the change of a position of the Constitutional Court if the latter provides for a narrower scope of protection of a right. And I agree that the case at issue is analogous to the case considered in Constitutional Court Decision No. Up-2094/06, dated 20 March 2008 (Official Gazette RS, No. 37/08, and OdlUS XVII, 28), and that due to the positions from the ECtHR Judgment in Dragojević v. Croatia, dated 15 January 2015, the position adopted in Decision No. Up-2094/06 had to be reconsidered and perhaps also changed. However, which of the rationes decidendi from Decision No. Up-2094/06 is the position at issue?
 
2. The majority Decision, if I understand it correctly, erroneously deems that Decision No. Up-2094/06 proceeded from a single position. I further believe that the majority Decision proceeds from the erroneous starting point that it has only changed a single position from the cited Decision (cf. Paragraph 21 of the reasoning). In contrast to the majority, I believe that (schematically speaking) Decision No. Up-2094/06 proceeds from two positions and that the majority Decision has thus also changed two positions (more on this below).
 
3. I understand that the change of a position presupposes the identification of the position that is to be changed. How are we to change a position unless we know what we are changing? And how are we to justify the reason for changing a position unless we have defined its content in advance? The position that is to be changed is namely the starting point of the understanding of the need for its change and thus of the justification of the reason underlying the change. The definition of the position that is to be changed and the reason underlying the change are therefore inseparably connected with regard to their substance.
 
4. Unfortunately, the majority Decision does not consider the content of the position it has changed. It does not define the position it has changed. It appears to me that this is also why it justifies only in general terms the reason for changing a single position. However, I do not believe that the generalisation regarding this point of the reasoning of the majority Decision is consistent with the requirement that a weighty reason for changing a previously adopted position be provided.[1] I thus could not agree with the majority Decision already from its very starting point.
 
 
               II
 
5. I can derive from the reasoning of Decision No. Up-2094/06 that the dismissal of the constitutional complaint relied on two positions. They were adopted from the perspective of Articles 35 and 37 as well as of Articles 22 and 23 of the Constitution, respectively. I believe that it also clearly follows from the mentioned Decision that the Constitutional Court distinguished between the stages of the pre-trial investigation and the actual criminal proceedings. During the former, the investigating judge decided to authorise the prosecuting authorities to apply secret surveillance measures by means of an order containing a deficient reasoning. The Constitutional Court reviewed this deficiency of the pre-trial investigation from the perspective of the protection of the right to communication privacy. It referred to Articles 35 and 37 of the Constitution. The Constitutional Court reviewed the second issue, i.e. the issue of the obligation of the courts to not base a judgment of conviction on incriminating evidence obtained by prosecuting authorities through an interference with the right to privacy on the basis of an order of an investigating judge containing a deficient reasoning, in the context of criminal proceedings. And it reviewed the significance of a deficient reasoning of an order of an investigating judge authorising secret surveillance measures for the stage of criminal proceedings from the perspective of the rights determined by Articles 22 and 23 of the Constitution. The fact that, in the circumstances of that case, the use of incriminating evidence in criminal proceedings that was obtained on the basis of the order of the investigating judge that contained a deficient reasoning did not in itself constitute a violation of Articles 22 and 23 of the Constitution was decisive for the decision to dismiss the complaint against the judgment of conviction. Allow me to summarise the rationes decidendi of Decision No. Up-2094/06: (1) the rights determined by Articles 35 and 37 of the Constitution are not violated if an order of an investigating judge issued during a pre-trial investigation merely refers to the request of the prosecutor, provided that the judge deemed that the request contained all the elements determined by the first paragraph of Article 152 of the Criminal Procedure Act (Official Gazette RS, No. 32/12 – official consolidated text, 47/13, and 87/14 – hereinafter referred to as the CrPA); this deficiency does not in itself entail that the courts proceeded from the position that there was no need for a review of the statutory conditions for ordering a measure interfering with the right determined by Article 37 of the Constitution; (2) the use of incriminating evidence obtained by means of such a disputable measure in criminal proceedings against the complainant does not entail a violation of the rights determined by Articles 22 and 23 of the Constitution.
 
6. In Dragojević v. Croatia the ECtHR decided on the alleged deficiency of the reasoning of the order of an investigating judge authorising secret surveillance measures from the perspective of Article 8 of the ECHR (the right to respect for one’s privacy), and on the issue of the exclusion of incriminating evidence obtained on the basis of such order of an investigating judge containing a deficient reasoning from the perspective of Article 6 of the ECHR (the right to a fair trial). It held that there had been a violation of the right to respect for private life (cf. Paragraph 17 of the reasoning of the majority Decision), while it did not find that Croatia had violated the right to a fair trial in connection with the non-exclusion of evidence obtained in such manner (cf. Paragraph 134 of the cited ECtHR Judgment).
 
7. The majority Decision in the present case connected the need to change the position from Decision No. Up-2094/06 to the cited ECtHR Judgment (cf. Paragraph 21 of the reasoning). Both the ECtHR and the Constitutional Court reviewed the deficiencies of the reasoning of the order of the investigating judge from the perspective of the right to privacy (and not from the perspective of a fair trial). As I have already explained, with regard to this deficiency the ECtHR established a violation of the right determined by Article 8 of the ECHR,[2], [3] whereas in Decision No. Up-2094/06 the Constitutional Court held that there had been no violation of Articles 35 and 37 of the Constitution. However, the majority Decision omitted a review from the perspective of Article 36 of the Constitution and Article 8 of the ECHR. If the positions of the ECtHR from the cited Judgment regarding the violation of Article 8 of the ECHR are in fact the reason underlying the change in the position of the Constitutional Court adopted in Decision No. Up-2094/06 and if the position of the Constitutional Court adopted with regard to the significance of the deficient reasoning of an order of an investigating judge authorising the prosecuting authorities to interfere with the complainant’s (communication) privacy is being changed, I deem it to be crucial that the alleged deficiencies of the reasoning of the order authorising the search of premises be reviewed from the perspective of Article 36 of the Constitution and Article 8 of the ECHR. This is even more so, as according to the position from the majority Decision the requirements with regard to interferences with spatial privacy determined by Article 36 of the Constitution are stricter than the requirements determined by Article 8 of the ECHR, and as a review from the perspective of Article 36 of the Constitution was even envisaged (cf. Paragraph 18 of the reasoning of the Decision). Nevertheless the majority circumvented such a review. Non sequitur.
 
8. In Paragraph 25 of the reasoning the majority Decision merely indicates that there could have been an inadmissible interference with the right determined by the first paragraph of Article 36 of the Constitution. I wonder who, if not the Constitutional Court, is going to provide an answer to the question of whether there occurred a violation of the right determined by the first paragraph of Article 36 of the Constitution, especially when all the circumstances of the case relevant for such a review are already known. And, once again, was not the reason that triggered the change in the position adopted in Decision No. Up-2094/06 the ECtHR’s review of the violation of Article 8 of the ECHR in Dragojević v. Croatia?
 
9. I regret that the majority Decision does not contain an answer thereto. Also due to the fact that in my opinion the case at issue raised constitutional questions that exceed the importance of the case. They are questions of a principled and systemic nature. They concern the question of the right to (subsequent) judicial protection of the right to privacy and the right to obtain redress for the violation thereof (cf. the fourth paragraph of Article 15 of the Constitution) in a situation when the alleged inconsistencies occurred in the process of the implementation of the guarantee of a judicial decision, as required by the second paragraph of Article 36 of the Constitution for interferences with spatial privacy. Or, as is indicated (but unfortunately not resolved) by the majority Decision, by reference to the right to a legal remedy (cf. Paragraph 24 of the reasoning). The highlighted questions should have been answered precisely due to the fact that, to the best of my knowledge, in the domestic legal order there is no legal remedy against an order of an investigating judge authorising a search of premises. The established position is namely that “there is no appeal against orders and therefore they may be enforced immediately.”[4], [5]
 
10. At this point I would like to make two additional points. Firstly, in the Judgment in Dragojević v. Croatia the ECtHR explicitly highlighted the importance of the possibility to (subsequently) establish a violation of the right to privacy by a declaratory judgment or to effect the protection of the violated right by means of judicial protection through an action for damages (cf. Paragraph 100 of the reasoning). In the part of the reasoning regarding the violation of Article 8 of the ECHR, the ECtHR thus separately considered the omission of remedies that the affected person has at his or her disposal in the event of a violation of the right to privacy. Such concerns remedies that are independent from the possibility to demand the exclusion of evidence in criminal proceedings that was obtained on the basis of such a court order. I cannot understand these reasons of the ECtHR as anything other than a warning that there exists a systemic problem in the legal order unless it enables (subsequent) judicial protection of the allegedly violated right to privacy that is adapted to the particularities of such protection. A fortiori, as the ECtHR also stressed that although the criminal court could decide on the fairness of admitting the evidence in criminal proceedings, it was not able to deal with the substance of the questions that touched upon the protection of the applicant’s right to privacy (cf. Paragraph 99 of the reasoning). Secondly, since the change in the position of the German Federal Constitutional Court (hereinafter referred to as the BVerfG) by Order of the Second Senate of the BVerfG Nos. 2 BvR 817/90, 728/92, and 1065/95, dated 30 April 1997, German law recognises legal standing for an appeal against an order of an investigating judge authorising a search of premises even if the search had already been carried out before the time limit for the appeal ran out. This changed position was triggered by the conclusion of the BVerfG that in instances of severe interferences with rights that are a direct consequence of the challenged authoritative act legal standing for an appeal is demonstrated if, considering the regular course of proceedings, the effects of the act cease before it can be challenged before the competent authority. In accordance with a further position of the BVerfG, an order for a search of premises issued by a judge by which a severe interference with a right is decided on is such an act. The BVerfG stressed (inter alia) that criminal proceedings aim to reach a decision on the guilt or acquittal of a person charged with a criminal offence, and not on the legality of an order authorising a search of premises.[6]
 
11. To conclude. I regret that the Constitutional Court missed an opportunity to answer the question of whether by means of subsidiary proceedings for the review of administrative acts (the second paragraph of Article 157 of the Constitution)[7] and by means of protection through an action for damages the domestic legal order ensures effective (subsequent) judicial protection in instances of alleged violations of the right to spatial privacy when the interference occurred on the basis of an order of an investigating judge and there exists a dispute regarding deficiencies that allegedly occurred during the implementation of the guarantee of a judicial decision in accordance with the second paragraph of Article 36 of the Constitution. I assume that in connection with such review the purpose and intent of the exclusion of incriminating evidence would have entered into the foreground. This entails a procedural option that may be applied by a defendant in criminal proceedings if incriminating evidence has been obtained through violations of rights, which was in fact an issue with regard to the criminal proceedings under review (cf. the first part of the second paragraph of Article 18 of the CrPA). This concerns a specific statutorily regulated consequence of instances of violations in the process of the collection of evidence. I namely believe that the purpose and intent of the exercise of this specific consequence is to ensure the defendant’s right to a fair trial, whereas the purpose and intent of remedies for violations of the right to spatial privacy appear to be different.
 
 
   III
 
12. Instead of tackling the positions regarding the deficient reasoning of the order of the investigating judge that authorised the prosecuting authorities to interfere with the right to privacy that were adopted by the Constitutional Court in Decision No. Up-2094/06 and the ECtHR in the Judgment in Dragojević v. Croatia from the perspective of this right, the majority Decision exceeded such, in my opinion without reason, and changed the protected object and thereby the sphere of protection. It namely reviewed the deficient reasoning of the order of the investigating judge authorising the search of premises that was adopted during the pre-trial investigation from the perspective of the right to a reasoned judicial decision, which is protected within the framework of the right determined by Article 22 of the Constitution.
 
13. The majority Decision also justified the need to change the position adopted in Decision No. Up-2094/06 on the basis of the constitutional guarantee of a reasoned decision determined by Article 22 of the Constitution. However, the mentioned Decision contains no position with regard to the right in question during a pre-trial investigation in criminal proceedings. Did the majority then change the position adopted in Decision No. Up-2094/06, although it was not actually a part of that Decision, or did it change the position that this position was not a part of the cited Decision, or the position of the Constitutional Court regarding the qualification of the protected object? The majority Decision does not contain an answer to these questions. I am not surprised that the majority Decision does not contain such answers, as it does not even identify the position adopted in Decision No. Up-2094/06 that is to be changed. And if the position that is to be changed is not even identified, how can there exist a weighty reason to change it?
 
14. I am firmly convinced that when reviewing the deficient reasoning of the order of the investigating judge in the case decided by Decision No. Up-2094/06 the Constitutional Court did not overlook the right to a reasoned decision, which is protected within the framework of the right determined by Article 22 of the Constitution. Why? A judge’s specific authorisation allowing the prosecuting authorities to monitor an individual’s communication, expressed in the form of a judicial decision, as I understand it, inevitably collides with the right to communication privacy of the individual under investigation. Therefore, the qualification of the protected object – i.e. the right to privacy, is most closely objectively linked to the state of the facts that was the subject matter of the review. Hence the qualification and review from the perspective of the rights determined by Articles 35 and 37 of the Constitution in Decision No. Up-2094/06. Let me add that the elements comprising the admissibility of an interference with the right to communication privacy in accordance with the second paragraph of Article 37 of the Constitution are linked to this right, just as the elements comprising the admissibility of an interference with the right to spatial privacy are linked to that right. In addition, a condition required by law is that the specific authorisation of a measure must be determined by a judicial decision. It is understood that the constitutionally determined elements comprising the admissibility of an interference with a right have to be distinguished from additional elements (potentially) determined for an interference by a law. It appears to be clear at first sight that these are also relevant for the scope of protection of the right to privacy; the Constitutional Court did not overlook them in Decision No. Up-2094/06,[8] and their significance for the review of the legality of a concrete interference was exhaustively clarified by the ECtHR in its Judgment in Dragojević v. Croatia. However, let me reiterate, the statutorily determined elements comprising the admissibility of an interference have to be distinguished from those determined by the Constitution. If we disregard this difference and thus assign constitutional importance to the statutorily determined elements, we would, I believe, be interpreting the Constitution in conformity with the law. Such an interpretation of the Constitution is erroneous as it is inconsistent with the fact that the Constitution is superior to laws.
 
15. It appears disputable to me that the majority Decision did not compare the positions of the Constitutional Court on the requirements with regard to the reasoning of judicial decisions that the Constitutional Court inferred from Article 22 of the Constitution in other cases to the elements of a limitation of the right to the inviolability of dwellings determined by the second paragraph of Article 36 of the Constitution, among which there is no requirement of a prior reasoned judicial decision. What is more, as I have already explained, the majority Decision simply avoided a review from the perspective of the right determined by Article 36 of the Constitution. In addition, by applying Article 22 of the Constitution it established a standard for the term judicial decision in accordance with the second paragraph of Article 36 of the Constitution that is even stricter than the one the Constitution expressly determines for a judicial decision, in accordance with which detention may be ordered pursuant to the first paragraph of Article 20 of the Constitution. The first and second paragraphs of Article 20 of the Constitution read together namely require that a written, reasoned judicial decision shall be served on a detainee no later than 24 hours after detention has been ordered by a judicial decision. In this regard I want to stress that I completely agree with the majority Decision in that the judge who decides on the ordering of a search of premises performs the function of guarantor. I am reserved merely with regard to the requirement that in accordance with the Constitution, if I understand correctly, each and every judicial decision authorising a search of premises pursuant to the second paragraph of Article 36 of the Constitution must also contain a reasoning (which must evidently be provided in advance) containing exhaustive grounds concerning all elements comprising the admissibility of an individual interference with the right to spatial privacy.
 
16. To conclude. I do not find convincing the reasons by which the majority Decision justified the change in the position adopted in Decision No. Up-2094/06, according to which in the circumstances of that case (I deem that they are in essence comparable to the case at issue) there was no violation of the rights determined by Articles 35 and 37 of the Constitution due to the deficient reasoning of the order of the investigating judge, by changing (the protected object and) the sphere (of protection).
 
 
IV.
 
17. I agree with the majority that the statutory requirement of a prior and reasoned court order cannot be replaced by subsequently expressed arguments claiming that the conditions for a search of premises were in fact fulfilled. Why? The deficiently reasoned court order had already been executed and therefore the alleged inadmissible interference with the individual’s right to the inviolability of dwellings that was based on that order had already occurred. By its very nature, subsequent judicial protection intended to resolve a dispute regarding the alleged violation of a right and to determine potential sanctions for such violation can neither prevent the violation of the right nor remedy it such that it restores the situation as if it had never even occurred.[9]
 
18. However, it is my understanding that in the case at issue the Supreme Court did not aim to replace the statutory requirement of a prior and reasoned court order with its own subsequent review. In the reasoning of its judgment it namely expressly stated that the deficient reasoning constitutes a violation of Article 215 of the CrPA (cf. Paragraph 23 of the reasoning of the majority Decision). Therefore, it did not circumvent the statutory requirement of a prior reasoning of that order. It merely denied that there existed an obligation to exclude evidence obtained on the basis of the deficiently reasoned order authorising the search of premises and thus it did not proclaim that specific consequence. It only addressed the fact that the order of the investigating judge contained a rather weak reasoning in order to be able to decide on the mentioned specific consequence due to a deficiency in the pre-trial investigation that is expressly regulated by Article 219 of the CrPA. That provision namely expressly lists the deficiencies in connection with a search of premises that impose upon the court the duty to not base its decision on evidence obtained in such a search. It is my understanding that a deficiently reasoned order authorising the search of premises is not one of them. As judges are bound by the Constitution and laws (Article 125 of the Constitution), the court that had to decide whether the judgment of conviction could rely on evidence obtained through the search of premises that was authorised by the deficiently reasoned order also had to review such through the prism of Article 219 of the CrPA. Once again: the court only reviewed procedural violations in connection with the obligation to exclude incriminating evidence and in doing so, due to the application of Article 219 of the CrPA, it adopted positions on the gravity of the deficiency of the reasoning of the order authorising the search of premises in the case at issue only in this regard. Or, to be even clearer, the court did not adopt the position that in criminal proceedings violations of the statutory requirement of a prior and reasoned order authorising a search of premises may be denied or remedied by means of a subsequent justification of the grounds for the search. Therefore, I believe that the reasons stated in the majority Decision with regard to the issue of the inadmissibility of such “subsequent control” (cf. Paragraph 24 of the reasoning of the majority Decision), which in principle I completely agree with, do not even correspond to the reasons underlying the challenged judgment.
 
19. As I understand it, the court thus only decided on the potential obligation to exclude incriminating evidence and found that it was not applicable to the case at issue. Consequently, it appears as if it may have “circumvented” this obligation. It is also in this context that I understand the reasons stated in the majority Decision in connection with the first part of the second paragraph of Article 18 of the CrPA. If my understanding is correct, the majority of the judges believe that due to the established violation of the right determined by Article 22 of the Constitution during the pre-trial investigation, on the basis of the first part of the second paragraph of Article 18 of the CrPA, it must automatically (in the sense of cause and effect) review the constitutionality of the position of the courts as regards the non-exclusion of evidence (cf. Paragraph 24 of the reasoning). In connection therewith, it further follows from the majority Decision that the constitutional reason for this construction is the fifth paragraph of Article 15 of the Constitution, i.e. the obligation to consider the maximum scope of protection of a right (cf. Paragraph 24 of the reasoning).
 
20. I can only agree with the significance of the fifth paragraph of Article 15 of the Constitution for the scope of the protection of rights within the state as in principle follows from the majority Decision. However, I am convinced that in order to be able to apply this principle to the case at issue the majority Decision would have to substantiate, considering the scientifically established methods of the interpretation of laws, that the requirement under the first part of the second paragraph of Article 18 of the CrPA broadens the protection of the right to a fair trial also in instances that concern deficiencies in connection with the reasoning of an order authorising a search of premises. As I cannot find such a substantiation in the majority Decision, I believe that the majority Decision simply deems that something that would still have to be established (in order to enable the application of the fifth paragraph of Article 15 of the Constitution) had already been established. Or put differently, from the mere possibility to determine a broader scope of protection of the right to a fair trial by law the majority Decision deduced the existence of a broader statutorily determined scope of protection of the right to a fair trial in instances where a judgment of conviction relies on incriminating evidence that was obtained on the basis of a deficiently reasoned order authorising a search of premises. I could not agree with such a simplification. Moreover, the majority Decision refers to a law as the source of the broader scope of protection of the right to a fair trial in instances wherein the question of the obligation to exclude incriminating evidence obtained through a deficiently reasoned order authorising a search of premises arises, while, at the same time, it, I believe, ignores that very same law, as it completely disregards Article 219 of the CrPA. In doing so, it also disregards the legislature’s assessment of the reviewed deficiency in the pre-trial investigation in criminal proceedings in the context of the right to a fair trial as determined by the legislature in the CrPA and thus results in an inconsistency in the CrPA. In addition, I believe that the majority Decision completely disregards the position of the Supreme Court regarding the non-exclusion of evidence based precisely on Article 219 of the CrPA.
 
21. As I have already clarified, the second position adopted in Decision No. Up-2094/06 rejected the thesis that, in the circumstances of that case (which are analogous to those of the case at issue), the use of incriminating evidence obtained in the pre-trial investigation on the basis of the deficiently reasoned order of the investigating judge addressed to the prosecuting authorities could constitute a violation of the rights determined by Articles 22 and 23 of the Constitution. I therefore believe that the position adopted in the majority Decision that I have examined also tacitly changes this (second) position adopted in the cited Decision. I doubt that the majority found the reasons underlying the change in the second position adopted in Decision No. Up-2094/06 in the ECtHR Judgment in Dragojević v. Croatia. The ECtHR namely did not reproach Croatia for a violation of the right determined by Article 6 of the ECHR due to the fact that the judgment of conviction relied on evidence that was obtained on the basis of a deficiently reasoned order of a judge concerning the monitoring of the complainant’s communication.
 
22. In conclusion. I believe that the exclusion of incriminating evidence is not and must not be the only possible consequence of the violation at issue, which occurred due to the reviewed deficiency of the reasoning of the order authorising the search of premises. Allow me to reiterate that I regret that the Constitutional Court missed an opportunity to answer the fundamental question of whether, in addition to the mentioned consequence, the domestic legal order ensures effective (subsequent) judicial protection of the right to spatial privacy in instances when an interference authorised by a judge already occurred and it is disputable whether the implementation of the guarantee of a judicial decision was deficient. I understand that the mentioned fundamental question becomes completely irrelevant if it a priori focuses exclusively on the specific consequence provided by law – i.e. the obligation to exclude incriminating evidence, namely the specific consequence determined by law for a violation of a defendant’s rights in the process of collecting evidence by which the right to a fair trial is protected (the first part of the second paragraph of Article 18 of the CrPA). However, I could not vote for the Decision as, focusing precisely on this specific consequence, it disregards (1) the different position of the Supreme Court regarding this specific consequence applicable to the situation at issue that is based on the statutory provision of Article 219 of the CrPA, (2) the statutory provision that expressly regulates the deficiencies concerning searches of premises that result in the exclusion of evidence obtained in a search of premises and that do not include the deficient reasoning of the relevant court order, and (3) the position of the Constitutional Court which, in an analogous case, rejected the allegation of a violation of the defendant’s rights determined by Articles 22 and 23 of the Constitution and therefore the existence of a violation of the right to a fair trial, although the incriminating evidence was obtained on the basis of a deficiently reasoned order of an investigating judge.
 
Dr Dunja Jadek Pensa
Judge
 
 
[1] With regard to the principle of stare decisis for building trust in the courts, cf. my dissenting opinion to Constitutional Court Decision No. U-I-269/12, dated 23 December 2014 (Official Gazette RS, No. 2/15, OdlUS XX, 29).
[2] From Paragraph 98 of the reasoning of the ECtHR Judgment in Dragojević v. Croatia: “[...] in a situation where the legislature envisaged prior detailed judicial scrutiny of the proportionality of 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.”
[3] From Paragraph 101 of the reasoning of the ECtHR Judgment in Dragojević v. Croatia: “[...] 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’.”
[4] Š. Horvat, Zakon o kazenskem postopku (ZKP) s komentarjem [The Criminal Procedure Act (CrPA) with Commentary], GV Založba, Ljubljana 2004, p. 282.
[5] The second sentence of the first paragraph of Article 132 of the CrPA reads as follows: “Orders are enforced immediately, unless the authority that issued the order decides otherwise.”
[6] Cf. Order of the Second Senate of the BVerfG Nos. 2 BvR 817/90, 728/92, and 1065/95, dated 30 April 1997.
[7] The second paragraph of Article 157 of the Constitution reads as follows: “If other legal protection is not provided, the court having jurisdiction to review administrative acts also decides on the legality of individual actions and acts which intrude upon the constitutional rights of the individual.”
[8] From Paragraph 17 of the reasoning of Decision No. Up-2094/06: “[...] The mentioned violation could have existed if the courts proceeded from the standpoint that the review of whether the statutory conditions for ordering a measure that interferes with the right of the affected person determined by the first paragraph of Article 37 of the Constitution was not necessary, because the reasons for authorising the measure follow from the request of the state prosecutor (the person representing the interests of criminal prosecution). However, such is not the case in the case at issue.” Emphasis added by DJP.
[9] I have already clarified that in such instances the law may, for example, determine that the violation of a right may be established by a declaratory judgment or provide judicial protection through an action for damages, however, according to our law, criminal courts do not decide on such consequences of established violations of the requirement that a search of premises must be authorised in advance by an investigating judge by means of a reasoned order.
Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Jože Vincetič, Murska Sobota
Date of application:
20. 12. 2013
Date of Decision:
9. 6. 2016
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Published:
Official Gazette RS, No. 51/2016
Document:
AN03831

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