The application before the ECHR is inadmissible because the internal remedies have not been exhausted, even when an internal appeal has been lodged, but was vague.
Hernádi v. Croatia 26/09/2019 (no. 29998/15)
Exhaustion of domestic remedies.
The applicant, a resident of Hungary, was charged with bribery and a temporary detention order and a European arrest warrant for extradition to Croatia were issued by the Croatian authorities. He brought two actions before the Constitutional Court which were dismissed as inadmissible and unfounded respectively. He applied before the ECHR for violation of Article 2 of Protocol No. 4 (freedom of movement).
The court reiterated that the applicants must first have their case brought before the national courts, up to the highest possible level of jurisdiction, found that the appeals brought by the applicant before the Constitutional Court were vague with regard to infringements. It concluded that, by submitting indefinite appeals, he had not exhausted domestic remedies and held that the application before the ECHR was inadmissible.
Article 2 of the 4th Protocol
The applicant, Zsolt Tamás Hernádi, is a Hungarian national who was born in 1960 and lives in
In 2009 MOL assumed control over the Croatian national oil company, INA-Industrija Nafte d.d., in
the context of a privatisation agreement. Two years later the Croatian authorities opened an
investigation against the applicant and the former Croatian Prime Minister, I.S., on suspicion of
bribery in relation to the 2009 INA-MOL agreement. The former PM was convicted of the offence in
2012, but the Constitutional Court then quashed his conviction and ordered a retrial. The
proceedings are still ongoing, as are those against the applicant who was indicted in 2014.
In the meantime, a dispute arose between the Croatian authorities and the Hungarian authorities:
Croatia wished to question the applicant as a suspect but Hungary has refused to help, essentially on
national security grounds and because an investigation has already been conducted in Hungary, the
applicant questioned as a witness and no criminal offence established.
This situation led to the Croatian courts ordering the applicant’s pre-trial detention in 2013, and the
authorities then issuing several European arrest warrants (“EAW”) for him as well as an international
alert, known as a Red Notice, indicating that he was wanted for prosecution. Neither the EAWs nor
the Red Notice have resulted in the applicant’s surrender to the Croatian authorities.
Mr Hernádi lodged two constitutional complaints with the Croatian Constitutional Court in January
and September 2014, essentially challenging the decision ordering his pre-trial detention. After
lodging the first constitutional complaint, he also asked the Constitutional Court to suspend the pretrial detention order, making reference to the consequences of the EAW on his business activities because he was prevented from travelling abroad. The first constitutional complaint was declared inadmissible, while the second was dismissed as unfounded, the Constitutional Court finding nothing arbitrary in the pre-trial decision.
THE DECISION OF THE COURT…
The Court reiterated that individuals complaining of violations of their rights must first have taken
their case through the national courts, up to the highest possible level of jurisdiction. Specifically,
the individual must have complained about an alleged violation in a manner which left no doubt that
the complaint then submitted to the European Court had indeed been raised at domestic level.
However, Mr Hernadi’s constitutional complaints had neither expressly relied on Article 2 of
Protocol No. 4 nor included any specific arguments about a violation of his freedom of movement.
Only vaguely referring to the fact that the EAW had been issued, Mr Hernadi had limited himself to
challenging the criminal courts’ interpretation of the relevant domestic law on the question of when
a detention order could be made to prevent a defendant from evading justice.
The Court did not consider that his request to suspend the pre-trial detention order, although
mentioning the EAW and its consequences for his freedom of movement outside Hungary, had
amounted to properly raising his complaint before the Constitutional Court.
The Court concluded that Mr Hernadi had not exhausted domestic remedies, meaning that he had
not given the Croatian authorities the opportunity to address and put right the Convention violation
alleged against them. It therefore rejected the application as inadmissible.