SECOND SECTION
DECISION
Application no. 13946/15
Zdravko FOLNEGOVIĆ
against Croatia
The European Court of Human Rights (Second Section), sitting on 10 January 2017 as a Chamber composed of:
Işıl Karakaş, President,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Ksenija Turković,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 15 March 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
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).
2. Administrative travel ban
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.
3. Other relevant facts
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.
B. Relevant domestic law
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:
Section 41
“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.
COMPLAINTS
37. The applicant complained, under Articles 3, 8 and 13 of the Convention and Article 2 of Protocol No. 4 to the Convention, of an unjustified application of the administrative travel ban, which had prevented him from travelling to Switzerland for heart surgery and thus endangered his health and well-being. He also alleged that he had not had an effective remedy in that respect.
38. The applicant also alleged, under Article 34 of the Convention, that he had been subjected to pressure by the police concerning his application before the Court.
THE LAW
A. The applicant’s complaints relating to the administrative travel ban
39. Complaining of an unjustified application of the administrative travel ban, and the lack of an effective remedy in that respect, the applicant relied on Articles 3, 8 and 13 of the Convention and Article 2 of Protocol No. 4, which, in so far as relevant, read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect for his private ... life, ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 2 of Protocol No. 4
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of order public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
1. The parties’ arguments
(a) The Government
40. The Government argued that the applicant had failed to exhaust the available, effective domestic remedies as had not asked the Zagreb Municipal Criminal Court to allow him to travel to Switzerland for medical treatment, as had been required given the terms of his bail. In the Government’s view, only by making such an application and obtaining the authorisation of the Zagreb Municipal Criminal Court to travel abroad for the medical treatment would his application for the lifting of the administrative travel ban have become relevant. The Government also pointed out that the applicant had been insured while he had been in detention and that following his release he had failed to apply for medical insurance as provided for under the relevant domestic law. The Government therefore considered that the fact that he had not had medical insurance in Croatia had been his own responsibility. This is particularly true given that he had been constantly represented by a lawyer and that the requirements for obtaining health insurance in Croatia should have been known to him. In any event, the Government pointed out that the applicant would not have been denied urgent medical treatment in Croatia. They also stressed that the heart surgery indicated for the applicant’s condition was regularly performed in Croatian hospitals.
41. The Government further contended that the restriction on the applicant’s freedom of movement had been based on the relevant provision of the Travel Documents (Croatian Citizens) Act, in that it pursued the legitimate aim of the prevention of crime and the protection of the rights and freedoms of others by securing the applicant’s presence in the criminal proceedings and that, in view of the possibility of the applicant’s securing medical treatment in Croatia and his previous attempts to avoid his participation in the proceedings, the restriction at issue had been proportionate. In this connection the Government also pointed out that there had been a strong public interest related to the applicant’s case given the scale of the alleged fraudulent conduct and the number of victims.
(b) The applicant
42. The applicant maintained that he had been unjustifiably denied the possibility of travelling to Switzerland for medical treatment. It was true that he had failed to apply for health insurance following his release from detention, but nobody had informed him of his rights. Moreover, in the applicant’s view, there had been no reason for him to seek medical treatment in Croatia when he had had medical insurance in Switzerland. In any case, the applicant stressed that he had not had sufficient means to pay for his medical treatment. He also contended that the domestic courts had failed to elucidate the relevant reasons for maintaining his administrative travel ban.
2. The Court’s assessment
43. The Court finds it unnecessary to address all of the Government’s objections, as the complaints are in any event inadmissible for the reasons set out below.
44. The Court reiterates that the right of freedom of movement as guaranteed by paragraphs 1 and 2 of Article 2 of Protocol No. 4 is intended to secure to any person the right to liberty of movement within a territory and to leave that territory, which implies a right to leave for a country of the person’s choosing to which he or she may be admitted. It follows that liberty of movement prohibits any measure liable to infringe that right or to restrict the exercise thereof which does not satisfy the requirement of a measure which can be considered as “necessary in a democratic society” in the pursuit of the legitimate aims referred to in the third paragraph of the above-mentioned Article (see, for instance, Napijalo v. Croatia, no. 66485/01, § 68, 13 November 2003, and cases cited therein).
45. In the case at issue, the administrative travel ban by which the applicant was prevented from obtaining a travel document and thus leaving Croatia undoubtedly amounted to an interference with his right to leave that country for any other country of his choosing to which he might have been admitted, as guaranteed under Article 2 § 2 of Protocol No. 4. It must therefore be determined whether that interference was “in accordance with law”, pursued one or more of the legitimate aims set out in Article 2 § 3 of Protocol No. 4, and whether it was “necessary in a democratic society” for the achievement of such an aim (see, for instance, Stamose v. Bulgaria, no. 29713/05, § 30, ECHR 2012).
46. The administrative travel ban in the case at issue was imposed in two sets of criminal proceedings against the applicant (see paragraphs 12 and 25 above). However, the applicant pursued the relevant remedies only in connection with the administrative travel ban imposed in the Zagreb Municipal Court’s criminal case no. Ko-683/13 (see paragraphs 12-24 above) and in that connection he brought his application to the Court. The Court will therefore examine whether the administrative travel ban in the noted case was lawful and justified.
47. In this connection the Court notes that the administrative travel ban at issue was based on section 41 of the Travel Documents (Croatian Citizens) Act, which provides for the possibility of denying a travel document to an individual, on the basis of a request by the competent court, in respect of whom criminal proceedings are pending or who was convicted and sentenced to a prison term of longer than three months (see paragraph 33 above). The administrative travel ban in respect of the applicant was initially imposed on the basis of a request by the Zagreb Municipal Criminal Court in connection with the applicant’s sentence in absentia to three years’ imprisonment (see paragraph 12 above) and thereafter, following the reopening of the proceedings, as a measure with the aim of securing his presence at the proceedings (see paragraphs 13 and 15 above). It therefore follows that the administrative travel ban was issued and maintained in accordance with the relevant domestic law.
48. In view of the fact that the administrative travel ban was imposed with the aim of securing the applicant’s presence at the criminal proceedings against him in connection with serious charges of fraudulent offering of loans which affected a number of victims, the Court accepts that the interference at issue pursued the legitimate aim of the prevention of crime and the protection of the rights and freedoms of others as suggested by the Government (see, for instance, Miażdżyk v. Poland, no. 23592/07, § 31, 24 January 2012).
49. With regard to the proportionality of the interference, the Court considers that the application of the administrative travel ban should be viewed against the overall circumstances of the case, which indicate that for a prolonged period of time the applicant unjustifiably avoided appearing before the competent criminal courts in connection with several sets of criminal proceedings against him concerning serious charges of creating a network for illegal and fraudulent offering of loans that affected a number of victims and involved a significant amount of pecuniary gain allegedly obtained by the applicant (see paragraphs 5-7 above).
50. Furthermore, it should be noted that the applicant’s presence in the proceedings before the Croatian courts was secured only following his extradition from Switzerland on the basis of an international arrest warrant (see paragraph 8 above). It is also worth noting that following the applicant’s release from pre-trial detention and his conviction in the criminal proceedings before the Zagreb Municipal Criminal Court (see paragraphs 11 and 21 above), he has remained unavailable to the Croatian authorities and an international arrest warrant and a European arrest warrant were issued with a view to securing his service of the prison sentence (see paragraphs 22-24 above).
51. In these circumstances, there is nothing suggesting that the domestic courts failed to appropriately evaluate the existence of a substantial risk of the applicant’s absconding that warranted the imposition of the administrative travel ban.
52. With regard to the applicant’s allegations that the administrative travel ban endangered his health and well-being as he was prevented from travelling to Switzerland for heart surgery, the Court notes that there is nothing suggesting that the applicant was not provided with the possibility of appropriate medical treatment in Croatia concerning his condition. In particular, he had health insurance during the period of his detention and he had every opportunity to apply for health insurance within thirty days of release from detention. However, the applicant failed to avail himself of the latter possibility without any justified reason. In this connection it is worth noting that such a possibility was clearly stated in the relevant law and that the applicant was duly legally represented (see paragraph 11 above). Accordingly, his arguments that he was not informed of that possibility cannot be accepted.
53. Moreover, irrespective of his failure to apply for health insurance following his release from detention, the applicant had the possibility to pay for health insurance in Croatia, which would not have involved a significant outlay (see paragraph 32 above) and the applicant has not provided any plausible evidence or arguments suggesting that he would not be able to pay that amount. In any case, according to the relevant domestic law, the applicant could not have been denied heart surgery in Croatia if the case had been urgent and his treatment, if appropriate, would have been covered from the State budget (see paragraph 35 above). In this connection it should also be noted that any of the grounds for obtaining health insurance in Croatia would also have covered the heart surgery which had been indicated to the applicant and such surgery could have been performed in four different hospitals in Croatia (see paragraph 32 above).
54. There is therefore nothing in the applicant’s condition and the possibilities for its treatment in Croatia suggesting that the administrative travel ban unjustifiably and unreasonably endangered his health and well-being.
55. It follows that the applicant’s complaints concerning his travel ban and its effect on his health and well-being, under Articles 3 and 8 of the Convention and Article 2 of Protocol No. 4, are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
56. Having regard to the reasoning and conclusions set out above, it cannot be said that the applicant has an “arguable claim” under Article 13 of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). It follows that this complaint is manifestly ill-founded and must also be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention
B. The applicant’s complaint under Article 34 of the Convention
57. Complaining of pressure imposed by the police concerning his application before the Court, the applicant relied on Article 34, which reads as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
1. The parties’ arguments
58. The Government contended that the applicant’s allegations were unsubstantiated and unfounded. He had been interviewed in connection with his registered residence in Croatia in the presence of his lawyer and there had been no indications, let alone concrete evidence, suggesting that his application to the Court had been the subject of his discussion with the police.
59. The applicant maintained that he had been subjected to unlawful and unjustified pressure by the police when he had been asked to come for an interview following the submission of his complaints to the Court.
2. The Court’s assessment
60. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their legal representatives but also other improper indirect acts or contacts designed to dissuade or discourage them from pursuing a Convention remedy or having a “chilling effect” on the exercise of the right of individual petition by applicants and their representatives. Whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see, amongst many others, Lopata v. Russia, no. 72250/01, §§ 150-152, 13 July 2010, with further references).
61. The Court notes in the case at issue that the applicant failed to indicate any particular questions asked by the police concerning his application before the Court or to specify the manner of the alleged pressure in that connection. Moreover, it should be noted that he was questioned in the presence of his lawyer but neither he nor his lawyer made any objections of unlawful pressure during the questioning (see paragraphs 30-31 above). Moreover, given the documents available before the Court (see paragraphs 29-31 above), and the competence of the police to act upon the indications of improperly registered residence (see paragraph 36 above), the Court is unable to establish the existence of any unacceptable practices amounting to a form of pressure on the applicant by the police concerning his application before the Court.
62. It follows that the applicant’s complaint is manifestly ill-founded. It must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 February 2017.
Hasan BakırcıIşıl Karakaş
Deputy RegistrarPresident
Full & Egal Universal Law Academy