FOLNEGOVIĆ v. CROATIA
Inadmissible
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
1. The applicant, Mr Zdravko Folnegović, is a Croatian national, who was born in 1958. He was represented before the Court by Mr I. Skupnjak, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has lived and worked in Switzerland since 1990. 5. In the period between 1996 and 2013 the competent prosecuting authorities in Croatia opened in total fifteen criminal cases against the applicant in connection with a suspicion that he had created a network for illegal and fraudulent offering of loans in Switzerland to Croatian citizens. It was alleged that fifty-six individuals had fallen victim to such criminal activities and that the applicant had also caused damage to the State. The total alleged pecuniary gain was estimated to be 645,847.06 euros (EUR). 6. In the course of the criminal proceedings against him, the applicant several times failed to appear before the competent criminal courts. He referred to reasons such as problems with his car and health issues. In connection with the applicant’s health condition, a medical report was commissioned and on 7 January 2010 a medical expert found that there had been nothing objectively justifying the applicant’s absence from the hearings. 7. Owing to the inability of the Croatian authorities to secure the applicant’s presence, four sets of criminal proceedings against him were conducted in absentia. In those criminal proceedings he was convicted and sentenced to prison terms ranging from one to three years. 8. In November 2012, on the basis of an international arrest warrant, the Swiss authorities extradited the applicant to Croatia. Upon his extradition, the applicant was placed in Lepoglava State Prison (Kaznionica u Lepoglavi) where he started to serve his prison sentences. 9. Following the granting of his application for the reopening of the proceedings conducted in absentia, service of the applicant’s sentence was discontinued on 16 May 2013. He was, however, remanded in pre-trial detention pending the criminal proceedings against him. 10. On 4 August 2014, after the applicant had deposited bail in the amount of 500,000 Croatian kunas (HRK – approximately EUR 65,000), the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu), in a case pending before it (case no. Ko-1330/13), found that the applicant should be released if he promised that he would not go into hiding, leave his place of residence in Zagreb without permission, hinder the proper conduct of the proceedings or reoffend. The applicant undertook to obey the conditions of his bail and the Zagreb Municipal Criminal Court released him from detention, instructing the police to supervise the applicant’s compliance with the imposed measures. 11. At the time when he deposited bail the applicant was still detained on the basis of a detention order of the Zlatar Municipal Court (Općinski sud u Zlataru) in another criminal case against him (case no. K-269/14). Following the applicant’s deposit of the bail before the Zagreb Municipal County Court, on 24 September 2014 the Zlatar Municipal Court found that he should be released from pre-trial detention as his presence could be secured by the measures imposed by the Zagreb Municipal Criminal Court. On the same day, the applicant was released from detention. At the time he was represented before the domestic courts by the same representative as currently before the Court (see paragraph 1 above). 12. In connection with the applicant’s conviction in absentia in criminal case no. Ko-683/13 on charges of fraudulent offering of loans to several individuals in which he had been sentenced to three years’ imprisonment, on 15 May 2009 the Zagreb Municipal Criminal Court imposed an administrative travel ban on the applicant by ordering the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske), pursuant to section 41 of the Travel Documents (Croatian Citizens) Act (see paragraph 33 below), to confiscate the applicant’s existing travel document and not to issue a new one to him. 13. Following the setting aside of the applicant’s conviction in absentia and the reopening of the criminal proceedings on the basis of his application, on 12 April 2013 the Zagreb Municipal Criminal Court informed the Ministry of the Interior that the applicant’s travel ban was to remain in force pending the criminal proceedings against him. The applicant was also remanded in pre-trial detention on the grounds of a risk of absconding related to his previous conduct by which he had sought to escape trial. 14. On 15 November 2013 the decision on the applicant’s pre-trial detention was set aside on the grounds that the maximum period for pre-trial detention had expired. 15. On 23 January 2014 the Zagreb Municipal Criminal Court informed the Ministry of the Interior that the applicant’s travel ban pursuant to section 41 of the Travel Documents (Croatian Citizens) Act should still remain in force. The same instruction was issued again on 1 October 2014. 16. Meanwhile, following a retrial, on 4 March 2010 the applicant was found guilty in the above criminal proceedings on charges of fraud and sentenced to three years’ imprisonment. Based on the applicant’s appeal the case was referred to the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu), as the competent appeal court in the case. 17. On 18 November 2014 the applicant applied to the Zagreb Municipal Criminal Court to have the administrative ban on him obtaining travel documents lifted, arguing that his medical condition had deteriorated and that he urgently needed heart surgery. He contended that he did not have health insurance in Croatia, but only in Switzerland, and that he did not have sufficient financial means to pay for surgery in Croatia. He therefore asked for permission to go to Switzerland for a short period so he could have the surgery. He also pointed out that he had been released from detention on bail and under preventive measures, which, in his view, made the administrative ban at issue obsolete. 18. As he received no reply from the Zagreb Municipal Criminal Court, in January 2015 the applicant complained to the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske) and again urged the Zagreb Municipal Criminal Court to examine his application. Meanwhile, his medical examination of 12 January 2015 indicated that he should have the required heart surgery within three months. 19. Following his complaint, the applicant received a reply from the Ministry of Justice informing him that the case file had been forwarded to the Slavonski Brod County Court, as the competent appeal court, and that the matter would be examined. 20. In March 2015 the applicant asked the Slavonski Brod County Court to decide upon his application. On 5 March 2015 the Slavonski Brod County Court replied by an email that it was not competent to decide on the application and that it should be examined by the Zagreb Municipal Criminal Court, which had issued the ban. 21. On 9 April 2015 the Slavonski Brod County Court dismissed the applicant’s appeal against the first-instance judgment of the Zagreb Municipal Criminal Court (see paragraph 16 above). His conviction thereby became final. 22. Following the finalisation of the applicant’s conviction, on 12 June 2015 the case was forwarded to a sentence-execution judge of the Zagreb County Court (Županijski sud u Zagrebu) in order to make the arrangements for the applicant’s service of his prison sentence. 23. Notwithstanding the repeated attempts by the sentence-execution judge and the police to locate the applicant, he remained unavailable to the Croatian authorities. In February 2016 an international arrest warrant and a European arrest warrant were issued against him. 24. At present the applicant is still at large. 25. In addition to the above-noted administrative travel ban in case no. Ko-683/13, an administrative travel ban was also ordered in the Zagreb Municipal Criminal Court’s case no. Ko-1330/13 (see paragraph 10 above). The proceedings in that case are still pending. 26. The criminal proceedings against the applicant in the Zlatar Municipal Court’s case no. K-269/14 are still pending (see paragraph 11 above). 27. Other criminal proceedings against the applicant in a case before the Zlatar Municipal Court (case no. K-148/07) are still pending. 28. According to the applicant, on 27 April 2015 he was asked to come for an interview to a police station where he was questioned about his complaints submitted to the Court. 29. According to the information provided by the Government, the police were acting upon the media reports that the applicant had effectively lived in Switzerland but maintained his registered residence in Zagreb since 1983. 30. In this connection the police attempted several times to find the applicant at his registered address in Zagreb but he could not be located. Eventually, he appeared at the police station with his lawyer and gave a statement concerning his residence. 31. A report on the applicant’s interview of 27 April 2015 contains his statements concerning his residence. According to the report, the applicant was neither questioned on nor did he give any statement concerning his application before the Court. 32. According to a report by the Ministry of Health (Ministarstvo zdravlja Republike Hrvatske) of 16 April 2015, provided by the Government, the applicant had health insurance in Croatia in the period between 25 October 2013 until 24 September 2014 as a person deprived of his liberty (see paragraph 11 above and paragraph 34 below). Thereafter he had an opportunity to apply for free health insurance within thirty days of his release in accordance with the Mandatory Health Insurance Act (see paragraph 34 below). Moreover, he had an opportunity to apply for comprehensive health insurance but he would have needed to pay certain due instalments and further instalments in the amount of 416.90 Croatian kunas (approximately EUR 55). The health insurance under any of the noted grounds would also cover the heart surgery which had been indicated to the applicant. Such heart surgery could be performed in the Clinical Hospital Centres in Zagreb and Split, and in the Dubrava and Magdalena Clinical Hospitals. 33. The relevant part of the Travel Documents (Croatian Citizens) Act (Zakon o putnim ispravama hrvatskih državljana, Official Gazette nos. 77/1999, 133/2002, 48/2005, 74/2009, 154/2014 and 82/2015) reads: “An application for a travel document shall be denied to an applicant in respect of whom there is a justified suspicion that he or she will: 1. Avoid his or her participation in the criminal proceedings or the enforcement of a judgment by which he or she was sentenced to a sentence of imprisonment longer than three months ... - upon a request by the competent court, ...” 34. The Mandatory Health Insurance Act (Zakon o obveznom zdravstvenom osiguranju, Official Gazette nos. 80/2013 and 137/2013) in its section 7(28) provides that all individuals deprived of their liberty shall have health insurance. Paragraph 13(c) of the same section provides that every individual who has been deprived of his or her liberty shall be given health insurance if, within thirty days following release, he or she applies for it. Section 18 of the Act provides that health insurance should cover the cost of specialist treatment and hospitalisation. 35. Section 8 of the Health Care Act (Zakon o zdravstvenoj zaštiti, Official Gazette nos. 150/2008 with further amendments) provides that urgent medical treatment for individuals residing in Croatia without health insurance and sufficient means to pay for their treatment shall be paid for from the State budget. 36. Under section 12 of the Residence Act (Zakon o prebivalištu, Official Gazette nos. 144/2012 and 158/2013) the police have the right to check whether an individual is residing at his or her registered residence in Croatia, and to institute the procedure for his or her striking out from the register of residence if he or she does not live at the registered residence.