Communicated on 28 August 2017

FIRST SECTION

Application no. 29998/15 Zsolt Tamas HERNADI against Croatia lodged on 15 June 2015

STATEMENT OF FACTS

The applicant, Mr Zsolt Tamas Hernadi , is a Hungarian national who was born in 1960 and lives in Kisoroszi . He is represented before the Court by Mr M. O ’ Kane, a lawyer practising in London.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the CEO of the Hungarian national oil and gas company MOL.

In 2011 the Croatian authorities opened an investigation in respect of the applicant in connection with the suspected bribery of the former Croatian Prime Minister, Ivo Sanader , in relation to business dealings with the Croatian oil company INA.

Between June 2011 and July 2013 the relevant State Attorney ’ s Office of the Republic of Croatia made four requests to the Hungarian authorities for international legal assistance in criminal matters concerning the above-mentioned investigation. The requests concerned the transfer of documents and the applicant ’ s questioning in connection with suspected bribery.

All the requests were refused by the Hungarian authorities on the grounds that their execution would threaten Hungarian national security interests. In addition, the Hungarian authorities conducted their own investigation into the matter and found no criminal responsibility on the part of the applicant.

On 26 September 2013 the Croatian State Attorney ’ s Office handling the case asked an investigating judge from the Zagreb County Court ( Ž upanijski sud u Zagrebu ) to order the applicant ’ s pre-trial detention on the grounds of risk of his absconding. It pointed out that the Croatian authorities had not been able to contact the applicant and that the accession of Croatia to the European Union in July 2013 had opened up the possibility of securing the applicant ’ s presence through a European arrest warrant (EAW). It considered that a detention order was justified due to the applicant ’ s refusal to participate in the criminal proceedings against him in Croatia, of which he had adequate awareness.

On 27 September 2013 the investigating judge from the Zagreb County Court ordered the applicant ’ s pre-trial detention as requested by the State Attorney ’ s Office.

On the basis of the detention order, the Croatian authorities issued an EAW (2013/EAW) for the applicant ’ s arrest and surrender.

The applicant challenged the detention order through a lawyer in Croatia. He argued that he had never been properly summoned and that he was not trying to avoid the proceedings or escape the trial, but that he normally lived and worked in Hungary and was available to the authorities at any time.

Meanwhile, the applicant also challenged the above detention order before the Constitutional Court ( Ustavni sud Republike Hrvatske ).

On 10 June 2014 a three-judge panel of the Zagreb County Court dismissed the applicant ’ s request to lift the detention order on the grounds that the fact that the applicant was out of the reach of the Croatian authorities and that the Hungarian authorities had refused to provide legal assistance in criminal matters to the Croatian authorities suggested that the order for his detention on the grounds of a risk of flight was justified.

On the same day, the three-judge panel allowed the State Attorney ’ s request for the applicant ’ s trial in absentia .

The applicant challenged the decision refusing the revocation of the detention order, and on 18 July 2014 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed it as unfounded, endorsing the reasoning of the Zagreb County Court.

The applicant then lodged a constitutional complaint against the above decision before the Constitutional Court, reiterating his arguments about the unlawful and unjustified detention order issued against him by the Croatian authorities.

On 10 December 2014 the Constitutional Court dismissed the applicant ’ s constitutional complaint, endorsing the reasoning of the lower courts.

The decision of the Constitutional Court was served on the applicant ’ s representative on 18 December 2014.

In November 2016 the applicant succeeded in obtaining the deletion of his name from the INTERPOL ‘ wanted ’ database and, when challenged by Croatia, this decision was confirmed by INTERPOL ’ s General Assembly.

In the meantime, in 2015 Croatian authorities issued a new EAW (2015/EAW) which they forwarded to Hungary. It is not clear whether it was forwarded to any other country.

The Croatian authorities also forwarded the 2013/EAW to other EU countries through the EUROPOL network. The following responses were received:

- Luxembourg, Italy, Slovakia, Cyprus, Latvia, Norway, Estonia, Sweden and Romania replied to the effect that no action was possible, without elaborating on the meaning of such a response;

- Malta, Poland, Ireland, Finland, Switzerland, Bulgaria, Denmark, Belgium, Portugal, Lithuania, Slovenia, the Netherlands and Liechtenstein replied stating that they had entered the applicant in the national search records;

- the Czech Republic and the United Kingdom requested a valid INTERPOL search request;

- Greece forwarded the EAW to its national S.I.Re.N.E . (“ supplementary information requests at the national entry”) bureau for further action;

- on 12 November 2015 INTERPOL in Wiesbaden, Germany, wrote to INTERPOL in Zagreb to inform Croatia that Germany would not search for the applicant;

- on 23 October 2015 Austria confirmed that, following receipt of a letter dated 14 September 2015 from the Hungarian Ministry of Justice, it had also decided not to search for the applicant.

Meanwhile, the applicant travelled to three EU countries. He also travelled to the Netherlands and the United States to testify as a witness before an arbitration tribunal and the UN Commission on International Trade Law concerning a legal dispute between the Republic of Croatia and his company. In the capacity of a witness before these bodies, he enjoyed immunity from arrest and detention.

COMPLAINTS

The applicant complains, under Article 2 of Protocol No. 4, of unlawful and unjustified restrictions on his freedom of movement, arguing that he is effectively prohibited from leaving the Hungarian territory in connection with the detention order and the European arrest warrant issued by the Croatian authorities.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to leave Hungary for any other country of his choice to which he may be admitted, as guaranteed under Article 2 of Protocol No. 4, in connection with the detention order and the European Arrest Warrant issued by the Croatian authorities?

2. If so, was that interference “in accordance with the law”, did it pursue one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4, and was it “necessary in a democratic society” for the achievement of such an aim?

The Government are invited to submit copies of all the relevant documents concerning the applicant ’ s case.