Monitoring is a special investigative action and public authorities can apply control over and seizure of communications in the course of criminal proceedings.
In Croatia, when you are suspected of a crime, communications monitoring may be employed as a legal investigative measure by law enforcement agencies according to the Criminal Procedure Act or the Electronic Communications Act.
Throughout the process, you have rights, including the right to legal representation during any legal proceedings related to the investigation. If evidence obtained through communication monitoring is used against you, you should be informed, and you have the right to challenge its legality in court.
Monitoring of private communications can be performed either in the form of:
Special investigative actions
During special investigative actions, public authorities can apply control over and seizure of (postal) correspondence and monitoring of telephone conversations and other means of communication, such as e-mails and postal mail in the course of criminal proceedings if:
- there are reasonable grounds to believe that these communications could contain needed evidence and
- only if there are no alternative means for obtaining the evidence
Operational actions
During operational actions, the monitoring of postal, electronic and other types of correspondence, as well as the wiretapping of telephone, electronic conversations and other means of communications can be performed if:
- there is well-founded information about a particular persons’ connection to a crime or
- if there are threats to important interests of the State, for example, to state security
What human rights violation may there be?
Although the use of secret surveillance may be necessary in the interests of national security and/or for the prevention of disorder or crime, these actions interfere with your private life. However, only unlawful intrusion will result in the violation of your human right to private life.
Furthermore, the use of unlawfully obtained evidence affects the right to fair trial. The mishandling of personal data collected during monitoring may breach data protection regulations such as the GDPR. The lack of effective remedies for individuals to challenge monitoring legality can violate the right to an effective remedy.
Was the action carried out lawfully?
To evaluate whether an investigative or operational action against you was carried out lawfully and whether your privacy has been sufficiently respected, see the questions below. If, in your situation, your answer to one of these questions was negative, your privacy and right to fair trial may have been violated. In such a case, you have the right to complain. Read more about how to complain.
The action should have a basis in law. In Croatia, all investigative actions are listed exhaustively in the Criminal Procedure Act. The law also contains:
- Certain requirements concerning the conditions under which these actions can be performed. Thus, the decision of the investigative judge or the public prosecutor is usually required in the case of investigative actions
- The procedure for how to challenge the investigative or operational actions taken. Read more about the safeguards and how to complain
If the communications monitoring is not allowed by law, the action is not lawful and your right to private life and fair trial may be violated.
Communications monitoring has to be aimed at the protection of other legitimate interests. Usually these legitimate interests are:
- the prevention, detection and prosecution of crime
- the prevention of disorder
- the protection of other persons
- ensuring the security of the State against internal and external threats
If the measure taken does not serve a legitimate aim, the investigative or operational action is not lawful and your right to private life may be violated. There is no need then to examine the other criteria for lawfulness.
Communications monitoring should be necessary and suitable for the achievement of the legitimate aim. There have to be real factual indications for suspecting a person of either planning, committing or having committed certain serious criminal acts or otherwise threatening significant interests of the State. The reasons for the secret surveillance should not be general or exploratory.
The following questions should be asked to evaluate the necessity:
- Is the evidence collected relevant, not excessive and related to the achievement of the legitimate aim?
- Are there other alternative and less restrictive methods available to obtain the needed evidence?
- Would the establishment of the facts by another method be unsuccessful or considerably more difficult?
Both competing interests – your right to private life and the legitimate interests of the State or other persons - have to be balanced against each other and a fair balance must be found. Public authorities have to give sufficient arguments as to why the interests of others outweighed your rights and the other way around in the particular case. In doing so, the following questions should be assessed:
1) How intrusive was the nature of the investigative or operational activity in question?
The level of intrusion can be lower or higher depending on different facts. For example, the interception and recording of your conversation is a more intensive intrusion than a mere registration of the dialed numbers and duration of calls from your telephone. The other authorities to which the data could be communicated and under which conditions, should also be assessed.
2) For how long were the actions carried out?
Was it the maximum period allowed in law and, if so, have the authorities given sufficient arguments as to why the maximum period was necessary? Were the actions discontinued and then renewed? In such a case, the authorities should repeatedly evaluate the necessity for the renewal. Communications monitoring should be discontinued immediately once the conditions under which the investigative or operational action was allowed are no longer fulfilled or the action itself is no longer necessary for the achievement of the legitimate aim.
3) Is there sufficient protection provided against the possible abuse or misuse of the actions and the information obtained?
The implementation of the investigative or operational action should be reviewed by a competent body that is independent in its decision making from those authorities carrying out the activities. The law has to provide an effective remedy for you to challenge the lawfulness of investigative and operational activities. Read more about how to complain and protect yourself in such situations.
4) Were the recordings and/or transcribed information deleted as soon as they were no longer needed to achieve the legitimate purpose?
The retention of such private information longer than is actually needed is not proportionate.
If the authorities have failed to properly balance your interests against those of others and therefore the interference is more serious than necessary, your right to private life may be violated.