Вы находитесь на странице: 1из 191

USKOK

v
Ivo Sanader and Zsolt Tamás Hernádi

INTERIM
TRIAL MONITORING REPORT

Judge Professor Dr. Dr. h.c. Kai Ambos


Lord Anderson of Ipswich KBE QC

30 December 2019
TABLE OF CONTENTS

EXECUTIVE SUMMARY

1. THE MONITORING EXERCISE ...................................................................... 1


The Monitoring Team .................................................................................... 1
Terms of Reference ....................................................................................... 1
Standards applied ......................................................................................... 2
Material considered ....................................................................................... 2
Methodology .................................................................................................. 4
Interim status of the Report .......................................................................... 4

2. FACTUAL BACKGROUND ............................................................................ 5


INA .................................................................................................................. 5
MOL ................................................................................................................ 5
Dr Sanader ..................................................................................................... 6
MOL’s acquisition of a controlling share in INA (FASHA and GMA) ......... 6
Subsequent developments ........................................................................... 7
Mr Fazakas and Mr Hürlimann ...................................................................... 8
Investigation by USKOK ............................................................................. 10
The allegation against the Defendants ...................................................... 11
Questioning of Dr Sanader ......................................................................... 11
Other evidence............................................................................................. 12

3. LEGAL BACKGROUND ............................................................................... 13


Dr Sanader’s first trial ................................................................................. 13
Supreme Court decision 3.4.2015 .............................................................. 14
Constitutional Court decision 24.7.2015.................................................... 15
General considerations ....................................................................... 15
“Interests of the Republic of Croatia” .................................................. 17
Supreme Court decision 24.9.2015 ............................................................ 20
Summary of proceedings against Mr Hernádi .......................................... 20

4. USKOK’S CONDUCT OF THE PROSECUTION .......................................... 22


Applicable international standards ............................................................ 22
USKOK’s investigative failures .................................................................. 25
Mr Ježić’s financial and corporate dealings with Xenoplast ................ 25
Reliance on Mr Hürlimann’s evidence................................................. 28
Failure to seek out/consider other relevant evidence .......................... 33
Video from the Marcellino restaurant .................................................. 36
Failure to give access to relevant material ............................................... 37
Mr Ježić’s status as an accomplice ..................................................... 37
Mr Ježić’s other criminal proceedings ................................................. 40
Link between Mr Ježić’s lawyer and a prosecution witness ................ 41
Failure to recoup the €5 million ........................................................... 42
Conclusion ................................................................................................... 46

5 INDEPENDENT AND IMPARTIAL TRIBUNAL ............................................ 49


Applicable international standards ............................................................ 49
UN Basic Principles and Bangalore Principles.................................... 49
ECtHR jurisprudence .......................................................................... 50
Role of Judge Turudić: general .................................................................. 52
Political context of the case ................................................................ 52
Criticisms of Judge Turudić................................................................. 53
Role of Judge Turudić: these proceedings ............................................... 59
Substantive trial issues ....................................................................... 59
Procedural and trial management decisions ....................................... 60
Preliminary reference to the CJEU ..................................................... 62
The Trial Chamber ....................................................................................... 64
The shadow of Judge Turudić............................................................. 64
First recusal application 17.9.2018 ..................................................... 65
Second recusal application 18.2.2019 ................................................ 66
Conduct of proceedings: summary ..................................................... 67
Insinuations of misconduct by Defendant and counsel ....................... 67
Hostility towards First Defendant and counsel .................................... 68
Restrictions on admission of relevant evidence .................................. 69
Conclusion .......................................................................................... 71

6. ILLEGITIMATE REGARD TO THE “INTERESTS OF CROATIA” ............... 73


Applicable international standards ............................................................ 73
The Constitutional Court’s ruling............................................................... 73
Scope of the indictment .............................................................................. 74
Admission of irrelevant evidence .............................................................. 75
Significance of these errors for the fairness of proceedings .................. 77
MOL’s increased control was judged beneficial for INA ...................... 77
Absence of viable alternative to the FASHA and GMA ....................... 79
No direct evidence of improper influence ............................................ 80
Conclusion ................................................................................................... 85

7. RIGHT TO A PUBLIC TRIAL ........................................................................ 87


Applicable international standards ............................................................ 87
Exclusion of public ...................................................................................... 87
Denial of Monitoring Team access to interpretation ................................ 88

8. RIGHT TO EFFECTIVE PARTICIPATION .................................................... 90


Applicable international standards ............................................................ 90
Failure to give rulings/reasons................................................................... 90
Completeness/accuracy of the Court record ............................................ 91

9. DENIAL OF LAWYER OF OWN CHOOSING............................................... 93


Applicable international standards ............................................................ 93
Decision to appoint ex officio counsel ...................................................... 93
Circumstances of the appointment ..................................................... 93
Violation of rights of Dr Sanader and his counsel ............................... 95
Adequate time and facilities to prepare defence ...................................... 97

10. PRESSURE ON LAWYERS.......................................................................... 99


Applicable international standards ............................................................ 99
Fining of defence counsel ........................................................................ 101
Circumstances of the fining............................................................... 101
Legal assessment ............................................................................. 105
Ordering disclosure of defence counsel’s medical records .................. 107
Circumstances of the order ............................................................... 107
Legal assessment ............................................................................. 108

11 DR SANADER’S HEALTH .......................................................................... 109


Limited court sitting hours ....................................................................... 109
Proceeding in Dr Sanader’s absence ...................................................... 109
Refusal to hear defence witnesses ................................................... 113
Ruling relating to Dr Sanader............................................................ 114
Ruling on closing submissions .......................................................... 115
Analysis and conclusions .................................................................. 116

INTERIM CONCLUSIONS ..................................................................................... 119


APPENDICES

APPENDIX 1 List of abbreviations

APPENDIX 2 Table of cases

APPENDIX 3 List of relevant people and companies

APPENDIX 4 Monitoring Protocol

APPENDIX 5 Curricula vitae of Monitors and biographies of Monitoring Team

APPENDIX 6 Report and letter on mobile phone issues; report on hearings of


4.12.2019, 12.12.2019 and 16.12.2019.

APPENDIX 7 Selected media articles: article on Supreme Court decision in


the Šeparović proceedings, 23.3.2019; article on Judge Turudić
and Mittermayer, 16.7.2012

APPENDIX 8 Unofficial transcript of hearing on 19.2.2019 (fining of defence


counsel)
EXECUTIVE SUMMARY

EXECUTIVE SUMMARY

BRIBERY ALLEGATION

 The Defendants, Dr Ivo Sanader and Mr Zsolt Tamás Hernádi, are accused of
receiving and offering a bribe, respectively, contrary to Articles 347(1) and
348(1) respectively of the CC. The prosecution is conducted by USKOK, the
Croatian Office for the Suppression of Corruption and Organised Crime.

 It is alleged that in 2008, whilst still in office, former Prime Minister Dr Sanader
agreed to accept a bribe of €10 million from Mr Hernádi, Chairman-Chief
Executive Officer of the Hungarian energy company MOL, in exchange for
ensuring, through his political position and influence, that MOL achieved the
result it desired in negotiations with the Croatian Government concerning the
future of the Croatian energy company INA, over which MOL was granted
management rights in early 2009.

 The central evidence underlying the allegation was that of Robert Ježić, a
Croatian businessman who had been arrested in relation to a separate
corruption investigation just before Dr Sanader. He stated that Dr Sanader had
asked him to make the arrangements for the receipt of the bribe, and that he
had done so, pointing to contracts agreed between two Cypriot companies (said
to be connected to MOL) and a Swiss company (connected to Mr Ježić) in June
2009, under which, later that month, €5 million had been paid by the Cypriot
companies. This evidence was relied on by the investigating authority, USKOK.

PREVIOUS PROCEEDINGS

 A separate investigation was initiated by the Hungarian authorities (the COI) on


receipt of a request to interview Mr Hernádi from the Croatian authorities. This
investigation concluded that there was no evidence that either Mr Hernádi or
MOL had been involved in an agreement to bribe Dr Sanader. This confirmed
the outcome of an internal investigation which had already been carried out by
MOL, which had concluded that there was no link other than as
customer/supplier between MOL and one of the Cypriot companies (Hangarn)
and no link at all with the other (Ceroma).

 Dr Sanader first stood trial alone on this allegation in 2012 at the Zagreb County
Court, and was convicted by Panel Chair and President of the County Court,
Judge Ivan Turudić, in an oral decision delivered on 20.11.2012 (written
judgment issued 1.7.2013). He was sentenced for this and an unrelated matter
to 10 years’ imprisonment (reduced to 8 years 6 months on appeal, and
subsequently re-increased during this trial).

 Judge Turudić’s decision convicting Dr Sanader was upheld by the Croatian


Supreme Court in a judgment delivered on 3.4.2014, but it was overturned by
the Croatian Constitutional Court on 24.7.2015 and a retrial was ordered “to be
repeated before a different court chamber”. On 24.9.2015, the Supreme Court
disqualified both Judge Turudić and his deputy President, Dražen Jakovina,

i
EXECUTIVE SUMMARY

from sitting as the Trial Chamber and also from sitting as President of the
Zagreb County Court in these proceedings.

PROCEEDINGS SUBJECT OF THIS REPORT

 Mr Hernádi was indicted by USKOK on corruption charges on 31.3.2014. On


21.12.2015, the Zagreb County Court joined the Sanader and Hernádi cases.

 A preliminary hearing in Mr Hernádi’s case took place on 17.9.2018 at which


his Croatian lawyers requested the recusal of the Trial Judge, Maja Štampar
Stipić. This request was refused by Judge Turudić. Another preliminary hearing
took place on 4.10.2018 when Mr Hernádi’s application to dismiss the
proceedings on the grounds of ne bis in idem was rejected.

 On 23.10.2018, Dr Sanader and Mr Hernádi’s trial formally commenced in the


Zagreb County Court. The main evidentiary hearing commenced on 4.2.2019
before a three-member panel of the Zagreb County Court chaired by Judge
Štampar Stipić.

 Mr Hernádi is being tried in absentia but is represented at the trial by Croatian


and English lawyers; Dr Sanader appeared in person until 2.9.2019, after which
the proceedings continued while he was absent following an operation, albeit
he was represented by lawyers throughout. Partway through the prosecution
case he was returned to custody, his prison sentence on the unrelated
conviction having been increased from 4.5 years to 6 years. He suffers from
health problems and the Court has been required to adjust its sitting hours
accordingly – and latterly sat in his absence. The evidence of the prosecution
witnesses concluded on 12.12.2019 and this Interim Report is produced
following the conclusion of the evidentary hearing which finished abruptly on
16.12.2019. A Final Report will be produced following delivery of the written
judgment. Our interim conclusions in this report will be re-considered in the
Final Report.

SUMMARY OF INTERIM CONCLUSIONS

We consider that USKOK’s conduct of the prosecution and the Trial Chamber’s
conduct of this phase of the proceedings fall short of internationally recognised fair
trial standards in a number of respects. In particular:

 USKOK has failed to investigate pertinent areas of enquiry, notably those


going to the credibility of its principal witness, Robert Ježić. It relies on the
evidence of Stephan Hürlimann to corroborate him, but Mr Hürlimann’s
statement was obtained in improper and unexplained circumstances and his
evidence undermines Mr Ježić on key issues.

 USKOK has failed to discharge its obligation to give access to all relevant
material: both Mr Ježić and Mr Hürlimann are enjoying de facto but
unacknowledged immunity, and no explanation has been given as to how Mr
Ježić was allowed to profit by €5 million (the only person in fact to have profited
from the alleged offence) of what are asserted to be criminal proceeds.

ii
EXECUTIVE SUMMARY

 The right to an independent and impartial tribunal has been violated by


Judge Turudić’s (i) continued involvement in the proceedings and (ii) potential
for bias affecting the entirety of the Zagreb County Court. Further we consider
that the Trial Chamber has violated this right by its conduct of the proceedings,
which give the appearance of bias.

 The ruling of the Constitutional Court has been departed from, with the
result that the indictment lacks clarity and detailed evidence has been called by
USKOK on legally irrelevant matters. The Trial Chamber has been invited to
determine the case, impermissibly, by reference to the “national interests of
Croatia”.

 The Defendants’ right to a public trial has been violated by the public being
excluded when significant events in the trial were taking place, without good
reason and without record in the Court minutes.

 The right to effective participation in the trial has been violated by the
failure of the Court to rule on or give reasons for various decisions.

 Dr Sanader’s right to be defended by a lawyer of his own choosing has


been violated by the imposition of an ex officio lawyer, without due process.
The expiry of the limitation period, calculated by Judge Štampar Stipić as
expiring in some two years’ time against Mr Hernádi, did not provide justification
for violating this right, particularly in the circumstances of the highly political
nature of the trial.

 Improper pressure was placed on defence counsel through the imposition


of high-level fines, and ordering disclosure of Ms Sloković’s medical file. It
compromised the Defendants’ right to a fair trial by obstructing counsel’s
discharge of their duty to defend their clients. Further, the forced disclosure of
her medical file in the course of her endeavouring to perform her professional
duty is a violation of her own right to a private life.

 Dr Sanader’s right to effective participation in the trial has been violated


by the Court deciding to hear key witnesses in his absence and by delaying
submission of his appeal to the Supreme Court against its decision to do so.

 The right of the Defendants to call evidence and their right to have
sufficient time to prepare their defence have been violated, along with the
principle of equality of arms, at least by three decisions: by the recent
(12.12.2019) refusal of the Court to hear defence witnesses, by its decision
(16.12.2019) to rely on Dr Sanader's testimony given at the earlier trial (in
proceedings to which Mr Hernádi was not a party and when he faced a different
indictment) in lieu of live testimony, and by its requirement (12.12.2019) that
closing submissions be prepared to an excessively short timescale.

Our interim conclusions are fully set out in the final (boxed) section of this
Report.

iii
1. THE MONITORING EXERCISE
The Monitoring Team

1.1. The Monitors are:

 Judge Professor Dr. Dr. h.c. Kai Ambos, Professor of Criminal Law,
Criminal Procedure, Comparative Law, International Criminal Law and
International Law at the Georg-August-University Göttingen, Germany; a
former Judge of a District Court in Germany and currently a judge in the
Kosovo Specialist Chambers, The Hague.

 Lord (David) Anderson of Ipswich KBE QC, a member of the Bar of


England and Wales, Justice of Appeal in Guernsey and Jersey, Visiting
Professor at King’s College London and independent cross-bench peer in
the House of Lords.

1.2. The Monitors have been assisted in their task, and in the writing of this Interim
Report, by: Ms Quincy Whitaker, LLM, a self-employed practising member of
the Bar of England and Wales and Recorder of the Crown Court (Criminal); and
Mr Davor Lazić, LLM, a member of the Croatian Bar Association and the
Association of Defence Counsel practising before the International Courts and
Tribunal.

1.3. Collectively, these four individuals are referred to as the Monitoring Team.
Responsibility for the conclusions of this Interim Report rests however entirely
with the Monitors themselves.

1.4. Full curricula vitae for the Monitors, and summary curricula vitae for the other
members of the Monitoring Team, are at Appendix 5.

Terms of Reference

1.5. The Monitors are instructed by Mr Hernádi’s defence team to act as impartial
and unbiased observers, auditing the fairness of the proceedings against the
Defendants. They remain strictly independent of any party to the proceedings,
in accordance with the terms of the Protocol governing their instruction
(Appendix 4).

1.6. The remit of the Monitors, as set out in the Protocol, is as follows:

“To monitor and audit:

(i) USKOK’s conduct of the prosecution against the Defendants (including the
evidence produced at trial); and

(ii) the Trial Chamber’s conduct of the Proceedings (including any rulings on
motions filed by the parties and any decisions regarding convictions and
sentence).

In particular, to examine:

1
(i) whether the Proceedings are fair by the standards to be applied to trials
under international human rights law (especially the European Convention
of Human Rights), universal treaties and other universal, regional, non-treaty
and UN standards;

(ii) whether the Proceedings adhere to the presumption of innocence;

(iii) whether the Defendants are afforded an adequate opportunity to present


their cases to the Court;

(iv) whether the Defendants are afforded an adequate opportunity to challenge


the evidence produced at trial (including documentary evidence and both
oral and written witness testimony);

(v) whether the Proceedings breach any other fundamental rights of the
Defendants;

(vi) whether the Proceedings comply with domestic laws and procedural rules;

(vii) whether any decision to convict is justifiable by the evidence;

(viii) whether any sentence handed down is commensurate to and justifiable by


the seriousness of the offence and the culpability of the offender; and

(ix) whether the Defendants were judged by a competent, independent and


impartial trial chamber.

Standards applied

1.7. The Monitors have considered the proceedings principally in the context of the
ECHR, including the respective jurisprudence of the ECtHR and comments of
the Committee of Ministers of the Council of Europe. We also took into account
the relevant EU law, including the CFREU, secondary legislation and the
relevant jurisprudence of the CJEU. Further, we rely on principles adopted by
the United Nations and other specialist and regional bodies, including relevant
decisions of the monitoring bodies, especially the HRC. We have also
considered the proceedings by reference to our understanding of Croatian
criminal justice procedure and our knowledge of the German and English
criminal justice systems.

Material considered

1.8. The Monitors considered the following background material relating to the trial:

 indictment against Zsolt Tamás Hernádi: K-US-145/11 (Zagreb,


31.3.2014);

 prosecution opening statement K-US-145/11 (Zagreb, 23.10.2019);

 amended indictment against Ivo Sanader and Zsolt Tamás Hernádi: K-


US-145/11 (Zagreb, 6.12.2019);

 further amended indictment (Zagreb, 11.12.2019);


2
 Croatia v Sanader, no.K-US-26/11: judgments of the Trial Court; written
judgment (1.7.2013); oral judgment (20.11.2012); prosecutor’s opening
statement (Zagreb, 17.11.2011); Supreme Court judgment (3.4.2014);
Constitutional Court judgment (24.7.2015);

 minutes of witness examinations and minutes of interrrogation by USKOK;


witness statements; and preliminary enquiry minutes of witnesses given
in these and the earlier Sanader proceedings;

 Independent Report on allegations of corruption against Dr Ivo Sanader


(former Prime Minister of the Republic of Croatia) and Zsolt Hernádi
(Chairman-Chief Executive Officer of the MOL Group) by Lord Blair of
Boughton QPM, Sir David Calvert-Smith and Robert Quick QPM,
November 2013;

 UNCITRAL Final Award The Republic of Croatia v MOL Hungarian Oil and
Gas Plc., Permanent Court of Arbitration, 23.12.2016 (PCA Case No.
2014-15: In the Matter of an Arbitration under the UNCITRAL Arbitration
Rules 1976 and Shareholders Agreement relating to INA-Industrija Nafte
D.D. dated 17 July 2003 as amended on 30 January 2009; Tribunal: Neil
Kaplan CBE QC SBS (Presiding Arbitrator), Professor Jakša Barbić and
Professor Jan Paulsson);

 documents prepared by Peters & Peters Solicitors LLP: timeline of key


events involving Zsolt Hernádi and summary of factual background;

 further Croatian decisions as referenced;

 Hungarian decisions as referenced;

 CJEU decision AY (Županijski Sud u. Zagrebu v. Croatia, Case C-268/17


AY) (25.7.2018);

 Expert Opinions of Professor Piet Eeckhout, University College London


(16.9.2016 and 11.1.2019);

 specialist country reports; and

 international and local media reports (some of which are reproduced in


Appendix 7).

3
Methodology

1.9. The full Monitoring Team attended for the commencement of the trial and to
hear the evidence of the principal witness Robert Ježić. The Monitors intended
to return for the re-scheduled defence questioning of Mr Ježić but due to the
Court’s restriction on the team accessing translation facilities in court in the
intervening period, they did not do so (see further, chapter 7 below). Mr Lazić
attended the entirety of the trial in person, submitting daily reports of the
proceedings to the Monitoring Team. The Team also received transcripts of the
translated audio/video recordings of the main trial proceedings and of the
preliminary hearings, relevant audio recordings and the official Court transcripts
(once official audio/video recording commenced) and minutes in English
translation. The additional material that the Monitoring Team considered is set
out at paragraph 1.8 above.

Interim status of the Report

1.10. This is an Interim Report produced at the conclusion of the evidence relied upon
by the prosecution. We have taken the opportunity to comment on what appear
to us to be some highly significant recent rulings relating to the defence case
(chapter 12 below), but present this Interim Report before the date fixed for the
presentation of the defence case on 19.12.2019 (and, of course, before the
verdict of the Court). These interim observations and conclusions will be
presented to the Court, to the prosecution and to the defence team. We will
finalise them in our Final Report in our assessment of the fairness of the
proceedings as a whole.

1.11 We intend at that stage to address, in addition, any further issues falling within
our Terms of Reference as may arise from the defence case and/or judgment.
Among others, these might include issues relating to interpretation and
translation as they affect the defence (and the Monitoring Team); whether the
Hungarian investigation and prosecution amount to a final determination of Mr
Hernádi’s case on the merits (ne bis in idem); and any issues that may arise
regarding the non-execution of the Second EAW.

4
2. FACTUAL BACKGROUND

2.1. This summary has in large part been adapted from that provided in the report
of Lord Blair and Sir David Calvert-Smith 1 (pp. 11-26) and updated as
appropriate.

INA

2.2. INA is the national oil and gas company of Croatia. Established in 1964, it was
wholly owned by the Croatian Government (on behalf of the Croatian state)
from nationalisation in 1990 until the process of privatisation discussed below.
It is headquartered in Zagreb and listed on the London and Zagreb Stock
Exchanges and, although only a medium-sized company in European terms, it
is both the largest company and the largest exporter in Croatia (accounting for
9% of Croatia’s GDP). It manages a network of over 500 petrol stations in
Croatia and neighbouring countries, and the INA Group (comprising affiliated
companies partly or wholly owned by INA) employs approximately 10,000
people. MOL and the Republic of Croatia are the largest shareholders with a
minority held by private and institutional investors.

2.3. INA currently has three main governing levels:

(1) the Supervisory Board (headed by a President, Damir Vanđelić);

(2) the Management Board (headed by a President, Sándor Fasimon); and

(3) the Executive Directors.

MOL

2.4. MOL (also known as the MOL Group) is the national oil and gas company of
Hungary. It was established in 1991 through a merger of the companies making
up the Hungarian National Oil and Gas Trust, and subsequently began a
process of privatisation, although the Hungarian Government remains the
largest single shareholder with just under 25% of its shares. It is headquartered
in Budapest and listed on the Budapest, Luxembourg and Warsaw Stock
Exchanges. With a market capitalisation of over €5 billion it is the largest
company in Hungary by far and the second-largest company in Central and
Eastern Europe.

2.5. MOL is currently governed by three main boards:

(1) the Supervisory Board (headed by a Chairman, Zoltán Aldott);

(2) the Board of Directors (headed by the Chairman-Chief Executive Officer,


Zsolt Hernádi); and

1 Independent Report on allegations of corruption against Dr Ivo Sanader (former Prime Minister of the
Republic of Croatia) and Zsolt Hernádi (Chairman-Chief Executive Officer of the MOL Group), by
Lord Blair of Boughton QPM, Sir David Calvert-Smith and Robert Quick QPM, November 2013.
5
(3) the Executive Board.

2.6. In 2002, the Croatian Parliament (also known by its Croatian name as the
Hrvatski Sabor) passed a law allowing INA to be privatised. The Croatian
Government appointed the international accountancy firm PwC, Deutsche Bank
and the United States law firm Baker Botts to advise on this issue, and they
developed various structuring and privatisation options. Once a transaction
structure had been selected, a sales process was run. MOL won this process,
bidding US$505 million for 25%+1 share of INA. The acquisition process
concluded in November 2003, at which point MOL became the Croatian
Government’s “strategic partner” in the ownership of INA.

2.7. The SHA (dated 17.7.2003) granted a shareholder with more than 25% but not
more than 50% of the shares (i.e. MOL) the right to appoint two of the seven
members of each of INA’s Management Board and Supervisory Board. It
granted a shareholder with more than 50% of the shares (i.e. the Croatian
Government) the right to appoint four of the seven members of each of those
boards. Certain matters were listed as “Reserved Matters”, and any resolution
on such a matter required approval by the Supervisory Board by a majority of
six to one. Accordingly, the Croatian Government could outvote MOL on both
boards, but MOL effectively had a veto in respect of Reserved Matters.

Dr Sanader

2.8. Around the same time that MOL acquired a stake in INA, the HDZ party of Dr
Ivo Sanader came to power and he became Prime Minister. The HDZ was the
party founded by Croatia’s first President, Franjo Tuđman, who dominated
Croatian politics throughout the 1990s.

2.9. After the HDZ’s defeat at the Croatian general election in January 2000
following the death of Mr Tuđman late the previous year, Dr Sanader was
elected its leader in April 2000, and by virtue of that position became Leader of
the Opposition. An HDZ-led coalition won the Croatian general election in
November 2003, as a result of which Dr Sanader became Prime Minister of
Croatia. The coalition went on also to win the general election in November
2007.

MOL’s acquisition of a controlling share in INA (FASHA and GMA)

2.10. Following its acquisition of 25%+1 of INA’s shares, MOL tried to open
negotiations with the Croatian Government with the aim of acquiring a larger
stake. These attempts bore fruit in 2008, after the Croatian Government’s share
in INA had fallen to less than 50% due to its implementation of the INA
Privatisation Act. In February 2008, the Croatian Government appointed a
Committee to conduct negotiations with MOL over the future of INA. This
Committee, which first met in March 2008, was led by Damir Polančec, a deputy
Prime Minister and Minister of the Economy, Labour and Entrepreneurship, the
other members being:

(1) Ivan Šuker, Minister of Finance;

6
(2) Dražen Bošnjaković, an official in the Ministry of Justice (who later
became Minister of Justice);

(3) Igor Lučić, an official in the Central State Administrative Office for e-
Croatia; and

(4) Vedran Duvnjak, President of the Croatian Privatisation Fund (HFP).

2.11. In July 2008, MOL started the process of making a public offer for INA shares
and by later that year had acquired 47% of shares in INA, making its stake
larger than that of the Croatian Government (although neither had an absolute
majority of shares). Following further negotiations between September 2008
and January 2009, the FASHA was agreed, as was the GMA, which provided
for the separation of INA’s gas storage business and its loss-making gas trading
business.

2.12. These were agreed by the Presidency of the HDZ, by the Croatian Inner
Cabinet and, on 24.12.2008 and 29.1.2009, by the Croatian Government, and
were signed by both parties on 30.1.2009. The FASHA was approved by the
European Commission in May 2009 and the Croatian Competition Agency in
June 2009 and was implemented by an INA AGM also in June 2009.

2.13. Under the FASHA, both MOL and the Croatian Government were entitled to
appoint three of the six members of INA’s Management Board, but MOL was
entitled to appoint its President, who had the casting vote in the event of a tie.
MOL was entitled to appoint five of the nine members of INA’s Supervisory
Board, and the Croatian Government was entitled to appoint three. In addition,
Reserved Matters (the list of which was amended) now required approval by
the Supervisory Board by a majority of seven to two. Accordingly, MOL could
outvote the Croatian Government on both boards, but the Croatian Government
effectively had a veto on Reserved Matters.

2.14. In accordance with this arrangement, at the INA AGM held on 10.6.2009, five
MOL executives and three Croatian politicians were elected to INA’s
Supervisory Board. A new Management Board was elected on the same day.

2.15. Under the GMA, INA’s newly separated gas storage business, PSP, was sold
to the Croatian state gas transmission company, Plinacro, for 514 million
Croatian kuna (circa €67.5 million) on 30.1.2009. The GMA provided for INA’s
gas trading business, PP, to be sold by 1.7.2009.

Subsequent developments

2.16. Dr Sanader unexpectedly resigned as Prime Minister and announced his


withdrawal from politics on 1.7.2009. He was succeeded by Jadranka Kosor,
who had been a deputy Prime Minister since Dr Sanader had come to power in
2003.

2.17. In November 2009, it was reported that the Croatian Government was putting
pressure on INA and was to recall Mr Polančec and another Croatian official
from the Supervisory Board. This replacement took place at an EGM held on
7
28.12.2009. In December 2009, the Croatian President, Stjepan Mesić, stated
on public radio that he would welcome an investigation into the terms on which
Dr Sanader and Mr Polančec had reached agreement with MOL concerning
INA, on the basis that the public had not been told why the deal was beneficial
for Croatia or how much money had changed hands. He noted in particular that
the agreement had removed the Croatian Government’s management rights
over INA. The State Attorney’s Office DORH announced the next day that it had
asked to see the contracts and other documents in order to determine if they
were detrimental to Croatia on 20.11.2009.

2.18. Negotiations continued between MOL and the Croatian Government (initially
led by Mr Polančec, and then, after Mr Polančec’s resignation as a deputy
Prime Minister on 30.10.2009, by Mr Šuker) as to the gas trading aspect of the
GMA, since the deadline for the sale of PP (1.7.2009) had passed without a
sale being concluded. This resulted in the signing, on 16.12.2009, of an
amendment to the GMA, which extended the deadline until 1.12.2010.

2.19. In January 2010, following the HDZ’s poor performance in the first round of the
ongoing presidential election, Dr Sanader announced his return to politics and
criticised the HDZ leadership, for which he was expelled from the party. The
HDZ candidate, Andrija Hebrang, went on to come third in the election, and the
candidate of the SDP, Ivo Josipović, was elected President.

2.20. It was subsequently reported, in October 2010, that a Committee of the


Croatian Parliament was scrutinising the FASHA, and that Prime Minister Kosor
had commented that she would revisit every official decision in relation to it.
The Committee’s report, adopted by the Croatian Parliament on 21.10.2010,
concluded that:

“[The FASHA] also defined reserved rights and clearly prescribed how the
Supervisory Board makes decisions about these issues: it was clearly defined
that decisions cannot be adopted without joint actions, thus the Republic of
Croatia was not put into a more unequal position compared to the one defined
by the [SHA].

For the most part, the provisions of the [FASHA] preserved the rights that
determined Croatia’s rights like in the [SHA], thus the amendments did not put
Croatia in an unequal position – instead, Croatia kept nearly the same position
that it had when it owned nearly 75% of INA. In accordance with that, it is
important to point out that the provisions of these amendments protected the
interests of the Republic of Croatia to the highest possible degree”.

2.21. In December 2010, the deadline for the sale of PP again passed, with
negotiations still taking place. PP remained under INA ownership and towards
the end of 2014 it formally merged with INA.

Mr Fazakas and Mr Hürlimann

2.22. Meanwhile, in May 2009 (i.e. five months after the FASHA had been agreed by
the Croatian Parliament, but before Dr Sanader resigned), contact took place
between a Swiss tax adviser, Stephan Hürlimann, and a Hungarian
businessman, Imre Fazakas.
8
2.23. Mr Hürlimann represented a Switzerland-based company, Xenoplast &
Shipping AG, which was either in part or wholly owned by a Croatian
businessman, Robert Ježić, who was also the owner of Dioki, a Croatian
petrochemical and polymer company which was throughout this period heavily
indebted to INA.

2.24. Dioki, itself a privatised company, owned and operated, amongst other things,
a polyethylene plant in Omišalj, a port on the island of Krk on Croatia’s Adriatic
coast. Omišalj is the terminus of the Adria oil pipeline, which connects Croatia
with several surrounding countries, and thus an important strategic location for
the Croatian and regional oil industry. It is also eight miles south-east of Rijeka,
Croatia’s third-largest city, and forms part of the Port of Rijeka, Croatia’s largest
port and home to an INA oil refinery.

2.25. Mr Fazakas works for and is a close associate of Mikhail Gutseriev, a Russian
businessman and oil and property entrepreneur who has a personal fortune in
excess of €2 billion. Amongst Mr Gutseriev’s companies, he is most significantly
the majority shareholder (and President) of RussNeft, one of Russia’s largest
oil companies. Mr Fazakas himself manages two Cypriot companies: Ceroma
Holdings Ltd, at the time jointly owned by Mr Fazakas and Mr Gutseriev; and
Hangarn Oil Products Trading Ltd, owned by Mr Gutseriev. Having spent most
of his professional life in Russia, he had previously worked for Yukos, a large
Russian oil company controlled by the Russian businessman Mikhail
Khodorkovsky. Mr Fazakas had managed Hangarn from its establishment as a
Yukos subsidiary in 2001, continuing in that role after it was bought by Mr
Gutseriev. He is also the Chairman of the Russian company ZMB, originally a
joint-venture between Yukos and MOL, subsequently a joint-venture between
RussNeft and MOL, and now owned by RussNeft, again retaining his position
when Mr Gutseriev’s company acquired its share. Amongst other things, at the
relevant time he also had a consultancy contract with MOL (subsequently
terminated).

2.26. As a result of the contact between Mr Fazakas and Mr Hürlimann, Mr Fazakas


flew to Zürich where he met Mr Hürlimann. Subsequent to this meeting, two
contracts were agreed between Ceroma (on 3.6.2009) and Hangarn (on
4.6.2009), on the one hand, and Xenoplast, on the other. These provided for
undefined consultancy services to be provided by Xenoplast to Ceroma and
Hangarn, stated in Ceroma’s case to be connected to the delivery of a
substantial quantity of “raw materials and related products” and in Hangarn’s
case to the development of the business activities in Croatia and the
neighbouring countries of an unspecified “large Russian company”.

2.27. They also provided for payments of €4.8 million by Ceroma to Xenoplast and
€5.2 million by Hangarn to Xenoplast, each payable in two equal instalments
(one on signing and the other on 31.12.2009). Further to those contracts, two
payments were made to Xenoplast by the two Cypriot companies: €2.6 million
was transferred by Hangarn on 17.6.2009 and €2.4 million by Ceroma on
18.6.2009.

9
2.28. Less than a fortnight later, on or about 29.6.2009, Xenoplast was recapitalised
with the sum of 1 million Swiss francs (circa €800,000), and Dioki Holding
(Dioki’s parent company, owned by Mr Ježić) was recapitalised with the sum of
2.5 million Swiss francs (circa €2 million). At some point prior to 28.9.20092,
Xenoplast issued a ‘subordinated’ loan (whereby all other creditors had priority)
to Dioki Holding of €4,567,608. The contracts were terminated by letters dated
14.12.2009 from Ceroma and Hangarn, both addressed to Mr Hürlimann at
Xenoplast. These terminations were accepted by Mr Hürlimann on 7.6.2010.
No further payments were made under the contracts by either Ceroma or
Hangarn. On 31.12.2010 Xenoplast loaned Dioki Holding a further €4.4m.
Xenoplast was subsequently merged into Dioki Holding in June 2011,
backdated to take effect from 1.1.2011.

Investigation by USKOK

2.29. On 9.12.2010, the Credentials and Privileges Commission of the Croatian


Parliament revoked Dr Sanader’s immunity, and on the same day he left
Croatia. The next day, the Croatian authorities issued an arrest warrant and
requested the assistance of INTERPOL, and Dr Sanader was arrested in
Austria. In July 2011, he was extradited back to Croatia.

2.30. It was reported that he was involved in several corruption investigations,


including an allegation that he had created ‘slush funds’ for the HDZ during his
tenure as Prime Minister. Some background to the issue of corruption in Croatia
and the Croatian Government’s anti-corruption efforts in the lead-up to Croatia’s
accession to the EU on 1.7. is set out in the Blair/Calvert-Smith report (at
Appendix II at pp. 119ff).

2.31. On the same day that Dr Sanader fled the country, Mr Ježić was arrested, and
was held in investigative detention until 19.4.2011. It was reported that he was
a suspect in another corruption investigation, also involving Dr Sanader,
concerning unlawful payments between HEP, the Croatian national power
company, and Dioki. These investigations were conducted by USKOK.

2.32. On 20.5.2011, it was reported that Davor Štern, a former INA executive and
politician who, earlier that year, had been appointed Mr Šuker’s replacement as
the Chairman of INA’s Supervisory Board in a “dispute over control”, had filed
a request with the Ministry of the Economy that a committee be formed to
investigate the SHA Amendment, and that he had privately hired a law firm to
probe MOL’s management practices.

2.33. On 25.5.2011, shortly after his release from detention and five days after Mr
Štern’s complaint was reported, Mr Ježić made an initial deposition to USKOK.
Mr Hürlimann did the same on the same day. This evidence appears to have

2
The exact date in 2009 on which the loan was made is unknown. It was subordinated in line with a
'confirmation' dated 28.9.2009, see page 000671 of the Croatian case file.

10
formed the basis of an additional investigation into Dr Sanader (see further
paragraph 4.25 below regarding the timing of these statements).

The allegation against the Defendants

2.34. The allegation against Dr Sanader in relation to this investigation was that the
FASHA had been allowed by the Croatian Government, contrary to the national
interests of Croatia, as a result of Dr Sanader having agreed to receive a bribe
of €10 million from Mr Hernádi of behalf of MOL. This agreement was alleged
to have been reached between them in early 2008. The principal witness on
whose evidence the allegation was based was Mr Ježić.

2.35. More specifically, Mr Ježić alleged that he had been asked by Dr Sanader in
late 2008 to make arrangements to receive this payment, and that he had then
involved Mr Hürlimann in these arrangements. He further alleged that Mr
Hürlimann had made arrangements with Mr Fazakas, who was alleged to have
been acting on behalf of MOL, to receive these payments. He said that the
contracts between Xenoplast, Ceroma and Hangarn were merely a sham, and
that the payments subsequently made under those contracts (a total of €5
million) were the manifestation of the arrangements that had been put in place
to receive the payment of the bribe from Mr Hernádi/MOL. Initially, it seems to
have been claimed or assumed by USKOK that Ceroma and Hangarn were
owned by MOL (rather than by Mr Fazakas and Mr Gutseriev).

Questioning of Dr Sanader

2.36. Dr Sanader gave a full account during pre-trial questioning by USKOK on


30.8.2011. That account, as recorded in the indictment, can be summarised as
follows:

(1) Dr Sanader denied committing the offence of bribery.

(2) He explained that his Government had inherited the relationship with INA
and MOL from the previous Government. This relationship was
established by the INA Privatisation Act and the SHA. All processes
linked to INA were derived from those documents and conducted in
accordance with the usual procedure of the Croatian Government.

(3) His deputy, Mr Polančec, oversaw the process. The aim was to establish
a political consensus. As such, the key political topics, including the new
shareholder agreement, were discussed in meetings of the leadership of
the HDZ party and the coalition partners and the Croatian President were
kept informed.

(4) Dr Sanader said that he trusted the Committee and the ministers
appointed to deal with the matter and that the opinions of all relevant
parties were taken into account before decisions were made. He insisted
on the application of the correct procedure. He said that everything that
needed to be done was done; and that the agreement with MOL was
beneficial for Croatia.

11
(5) He denied that the agreement granted management rights in INA to
MOL, and also denied that he had been paid a bribe. At the relevant
time, the government held a share in the ownership structure that was
3% less than that held by MOL. Accordingly, it was not logical for there
to be, and MOL would not have agreed to, a position where MOL held a
smaller number of members on the Management or Supervisory Boards.
He said that if there was any surrender of management rights, it actually
took place in 2003 when MOL had, proportionate to its shareholding,
greater management rights than were granted subsequently.

(6) Dr Sanader said that he needed to ensure the energy independence of


Croatia following winter gas shortages. The Croatian Government had
debated whether the gas business should be separated from INA to
allow Government control.

(7) He denied that he had taken a bribe. He said it was not his role to
persuade the Croatian Government. He said that all voting ministers
were included in the process before decisions were made and issues
were debated by the leadership of the HDZ party, coalition partners and
in the narrower Cabinet. He stated that he never exerted any pressure
on Mr Polančec but that he was instructed to conduct negotiations with
MOL, along with the Committee, on behalf of the Croatian Government.

(8) Dr Sanader stated that Mr Ježić was attempting to help his own position
in the proceedings. He said he knew Mr Ježić in the same way as he
knew many other members of the party and that it was logical to meet
him as an entrepreneur and business owner, to encourage the
development of the business climate. However, he denied that he and
Mr Ježić were friends.

(9) He denied that he had agreed any payment with Mr Ježić or Mr Hernádi
nor was he aware of any payments being made or that were yet to be
made.

Other evidence

2.37. The other evidence gathered by USKOK prior to charge fell broadly into four
categories:

(i) minutes taken by USKOK of the pre-trial questioning of 13 witnesses;

(ii) documentary evidence relating to the payment of money to Xenoplast;

(iii) documentary evidence said to support the evidence of Mr Ježić; and

(iv) documentary evidence relating to the FASHA.

12
3. LEGAL BACKGROUND

Dr Sanader’s first trial

3.1. Dr Sanader stood trial between 17.11.2011 and 15.11.2012 at the Zagreb
County Court. Although the trial lasted nearly a year, it only took place on a
small minority of days during that period. At the same trial, he stood accused of
a separate offence of abuse of position, contrary to Article 337(1) and (4) of the
CC, in relation to the Hypo Bank allegation.

3.2. The trial was heard by a Panel comprising three judges. Judge Ivan Turudić
was its President. His two fellow judges were Judge Ivana Čalić and Judge
Dušanka Zastavniković Duplančić. Judge Turudić, as President of the Panel,
was responsible for appointing the two other judges.

3.3. On 20.11.2012, Judge Turudić delivered an initial oral judgment (on behalf of
the Court) finding Dr Sanader guilty in respect of both the MOL/INA allegation
and the Hypo Bank allegation. He sentenced Dr Sanader to a total of 10 years’
imprisonment: 7 years 6 months for the bribery offence and 3 years 6 months
for the Hypo Bank offence of abuse of authority. These sentences were reduced
on appeal, to 6 years 6 months and 3 years respectively3. Dr Sanader was also
ordered to pay a total of 36,698.07 Croatian kuna (circa €5,000) in costs and
ordered Dioki Holding (as the successor of Xenoplast) to pay €5 million to the
Court. The Court issued a final written judgment confirming this ruling on
1.7.2013 (the day that Croatia became a Member State of the EU). Shortly
thereafter, Dr Sanader lodged an appeal to the Supreme Court of Croatia.

3.4. Dr Sanader has been detained in prison custody in relation to three sets of
proceedings. He was detained for, approximately: 16 months in the Fimi-Media
case4, 32 months in the Hypo Bank and INA-MOL joint case5 and 12 months to
date in the Planinska case6. On 4.4.2019, during the course of the current trial,
the Supreme Court increased his sentence for the offence of ‘abuse of authority’
(in the Planinska case) from 4.5 years to 6 years and Dr Sanader was returned
to custody.

3 Supreme Court decision 3.4.2015, pg. 42.


4 Fimi-Media case: USKOK charged Dr Sanader with extracting 70 million kuna from state institutions
and companies; this is one of the biggest corruption affairs in Croatian politics with both Dr Sanader
and the HDZ party being accused, and which has thus become the first party in Croatia to be charged
with corruption. Dr Sanader was sentenced for 9 years but the Supreme Court ordered a retrial which
is currently ongoing. He was detained from 10.12.2010 to 18.7.2011 in Austria, then from 18.7.2011
to 16.12.2011 and from 4.8.2015 to 23.11.2015 in Croatia.
5 From 20.11.2012 to 24.7.2015.
6 Planinska case: Dr Sanader was found guilty of helping former HDZ MP Stjepan Fiolić and his

companies to sell a building in Zagreb’s Planinska Street to the Ministry of Regional Development in
2009 at a significantly higher price than the market price. According to the verdict, the state budget
lost 15 million kuna due to the inflated price, while Dr Sanader received a commission of 17.45 million
kuna from Mr Fiolić. Dr Sanader was orginally sentenced to 4.5 years but the Supreme Court
increased the sentence to 6 years. He was detained from 4.8.2015 to 24.11.2015 and from 4.4.2019
onwards.
13
3.5. As to the €5 million, Mr Ježić had earlier stated that it was by then held by Dioki
Holding and he had agreed to pay it into the Court. However, after the written
judgment was issued, he instead explained that he had deposited €5 million in
shares with a law firm as a guarantee, it being pointed out that he did not have
to pay the money until the Court’s judgment became final (which would only
occur once the appeal had been resolved). He also pursued an unsuccessful
appeal against the order which was deemed out of time.

3.6. At the time of the writing of this Report, the amount remains outstanding. Dioki
Holding was re-capitalised very shortly after the initial transfers to Xenoplast,
and funds used to repay its debt to Hypo Bank and potentially used to pay the
huge loan to Mr Ježić personally: although the exact timeline in respect of the
loan is unclear, Ježić claimed it was paid over many years. The companies
subsequently merged, and the funds are seemingly no longer available. Mr
Ježić’s evidence at trial is that he currently does not have the means to repay
any of the money 7.

Supreme Court decision 3.4.2015

3.7. Dr Sanader’s appeal against his conviction was dismissed by the Supreme
Court on 4.3.2015, although his appeal against sentence was partially
successful and the aggregate sentence for the two offences was reduced from
10 years to 8 years 6 months (subsequently re-increased: see paragraph 3.4
above).

3.8. The Supreme Court upheld Judge Turudić’s analysis of the elements of the
offence as including a detriment to the “interests of the Republic of Croatia”:

“The defendant was found guilty of the actions he committed, as described in


the operative part of the first-instance judgment, in order to make the Croatian
Government take a decision that was contrary to the interests of the Republic
of Croatia”8.

3.9. It also upheld the County Court’s capacity to decide whether the political
decisions concerning amendments to the SHA and the separation of the gas
business (FASHA and GMA) were in the “interests of the Republic of Croatia”,
and its analysis of that issue:

“The allegations in the appeal that all interests of the Republic of Croatia are
protected by the contractual [lock up period] provisions … did not call into
question the conclusion of the first-instance court that the amended
Shareholders’ Contract is not in the interest of the Republic of Croatia”9.

3.10. The Supreme Court endorsed Judge Turudić’s view of witnesses that gave
evidence in relation to the strategic interests of Croatia, describing MOL
witnesses as “not unbiased” and preferring the evidence of INA witnesses who,
the Court considered, were by the nature of their appointments tasked with

7 See MHUT 12.12.2019, pp. 155-156.


8 Supreme Court decision 3.4.2015, pg. 19.
9 Supreme Court decision 3.4.2015, pg. 31.

14
protecting Croatia’s interests 10 . It upheld Judge Turudić’s dismissal of the
evidence of Luka Bebić, who had sought to contradict the narrative that Dr
Sanader imposed the decision on an unwilling Parliament11.

3.11. The Court upheld Judge Turudić’s acceptance of the evidence of Mr Ježić in its
“entirety” and rejected any suggestion that he might have benefited from any
arrangement with USKOK because:

“Ježić was examined for the first time at USKOK Office more than a month after
being released from pre-trial detention, which makes it difficult to establish a
causal relationship between the testimony and his release from pre-trial
detention. It is really unconvincing that the State Attorney would consent to his
release just based on the prisoner’s agreement or promise that he would testify
in the specific case, before obtaining such witness statement and before finding
out the content of the witness statement. Equally unconvincing is the fact that
with the provided witness statement Ježić would improve his position in the
proceedings conducted against him on the basis of “an informal agreement with
the State Attorney’s Office” and their “benevolence”, which would imply the
existence of irregularities and illegalities in the practice, given the fact that “an
informal arrangement” is not an operational tool of the State Attorney’s Office,
contained in the regulations governing the practice of the State Attorney’s
Office”12.

3.12. The Supreme Court noted, however, that “[t]he fact that the money paid into the
account of trading company Xenoplast was manipulated is not in dispute
because witnesses Ježić and Hürlimann confirmed it” 13 although it did not
consider whether the commission of any criminal offences flowed from this
conclusion.

3.13. The suggestions that the “procedure is a politically orchestrated persecution


with a media hunt and lynching and with his defence lawyers being spied and
eavesdropped” and the objections “to the treatment by USKOK, especially in
respect of the disclosure of information during the investigation stages” were
deemed not to have “substantiated any ground of appeal” and thus were not
considered further14.

Constitutional Court decision 24.7.2015

General considerations

3.14. On 24.7.2015, the Constitutional Court overturned Judge Turudić’s decision


convicting Dr Sanader on the basis that his rights had been constitutionally
violated in four respects. The Court held that the decision was flawed in
fundamental respects in relation to proof of the elements of the offence.

10 Supreme Court decision 3.4.2015, pp. 27-28.


11 Supreme Court decision 3.4.2015, pg. 24.
12 Supreme Court decision 3.4.2015, pg. 40.
13 Supreme Court decision 3.4.2015, pg. 5.
14 Supreme Court decision 3.4.2015, pg. 41.

15
3.15. In relation to the definition of “official person”, a constituent element of the
offence, the Court at first instance had erred in holding that Dr Sanader satisfied
the definition both by his office of Prime Minster and also as the Chairman of a
political party. The impact of the doctrine of the separation of powers required
that Dr Sanader’s “influence as party chairman will not be taken into account”15.

3.16. The Constitutional Court held that the “central question in the entire case”,
which the first instance Court should have determined “with certainty” but had
failed to do so, is “when and how the corruption agreement was executed”.

“The Constitutional Court also noticed that the time (early 2008) and place
(Zagreb) at which such agreement was reached are not mentioned anywhere
in the explanation of the first instance judgment…. The explanation of the first
instance judgment also says nothing about the way in which the incriminating
agreement was reached”.16

3.17. The Constitutional Court held that the essential feature of the criminal offence
referred to in Article 343(2) of the CC of an “official act” is made out "if an official
person, within the scope of such person’s authority, based on the public
authority, executes an agreement in the name and on behalf of a government
institution headed by such person"17. It noted that the ‘official act’ performed by
Dr Sanader was described in the County Court judgment as “the applicant
would, in return for an amount of €10m ‘do everything’ (to conclude legal
transactions)”18.

3.18. However, the Court noted that Dr Sanader was not authorised to perform such
an official act as the execution of contested agreements in his capacity as Prime
Minister since they did not belong to the “independent work functions entitling
the applicant to direct decision-making”19. Only the Government as a collective
body was authorised to pass such a decision 20. The Trial Court identified Dr
Sanader’s influence as Prime Minister on members of the coalition Government
to grant their consent to the agreements as the “official act” of the applicant.21
Consequently, the Constitutional Court noted that the criminal offence of
accepting a bribe “would be completed merely by the execution of a corruption
agreement between the applicant and the alleged briber, by which the applicant
would ensure by his influence the consent of the Government with respect to
the conclusion of legal transactions with MOL on behalf of the Republic of
Croatia [the FASHA and the GMA] in return for the promised amount”22.

15 Constitutional Court decision 24.7.2015, para. 339.


16 Constitutional Court decision 24.7.2015, para. 345; see further paras. 415-416.
17 Constitutional Court decision 24.7.2015, para. 351, quoting the Supreme Court judgment No. I Kž

43/05-10, 14.7. 2005.


18
Constitutional Court decision 24.7.2015, para. 350.
19 As “official person” is defined by the Supreme Court in judgment No. I Kž-Us 91/10-6, 8.2.2011.
20 Constitutional Court decision 24.7.2015, para. 351.
21 Constitutional Court decision 24.7.2015, para. 353.
22 Constitutional Court decision 24.7.2015, para. 354.

16
“Interests of the Republic of Croatia”

3.19. The Constitutional Court observed that “it seem[ed] that the ‘contrariness to the
interests of the Republic of Croatia’ of the agreements executed between the
Government and MOL [FASHA and GMA] was identified as the major crime in
the entire INA-MOL case”. 23 The Court noted how the County Court had
specified Dr Sanader’s culpability:

“In this specific case, the conduct of the defendant did not only manifest the
features of a criminal offence of accepting a bribe which are reflected in his
very readiness to endanger the protected values, but he also abused his official
capacity, for which he eventually received a gift and therewith made a company
of special interest to the Republic of Croatia dependant on a foreign legal
entity”24.

3.20. The Constitutional Court emphasised with respect to the criminal offence in
Article 347 of the CC that “only the bribe agreement matters, whereas
everything else from the aspect of the commitment of the criminal offence is no
longer relevant”25. It held that the references in the trial judgment to a factual
description of Dr Sanader’s acts after the completion of the formal criminal
offence of accepting a bribe amounted to “excess”26.

3.21. The Court noted that although the County Court judgment commenced with the
bribe agreement, it “also included the way in which the applicant influenced the
members of the Government to provide for the execution of contested
agreements, the conclusion of the agreements and, subsequently, the
execution of fictitious agreements between foreign companies for the purpose
of payment of the agreed bribe to the applicant in two instalments (one of which
was paid and the other one was not), as well as the acceptance of a bribe”27.

3.22. The Constitutional Court set out the (flawed) reasoning by which the County
Court had concluded that it had authority to judge that the contested
agreements were “contrary to the interests of the Republic of Croatia”28. On the
basis of that reasoning, the County Court determined in the criminal
proceedings that the Government’s decision in concluding the FASHA and
GMA with MOL was indeed contrary to the interests of the Republic of Croatia29.

3.23. The Constitutional Court found that Judge Turudić’s assumption of capacity to
make such a determination involved a number of constitutional illegalities:

“[this approach], with respect to the prime minister, could lead to a violation of
guarantee of the legal predictability of the criminal offence arising for such
defendant from Article 31(1) of the Constitution. Second, with respect to the

23 Constitutional Court decision 24.7.2015, para. 376.


24 Pg. 191 of the first instance written judgment, cited by the Constitutional Court, 24.7.2015 at para.
376 (emphasis added).
25 Constitutional Court decision 24.7.2015, para. 355.
26 Constitutional Court decision 24.7.2015, para. 357.
27 Constitutional Court decision 24.7.2015, para. 373.
28 Constitutional Court decision 24.7.2015, para. 380.
29 Constitutional Court decision 24.7.2015, cited para. 381.

17
objective constitutional order, the court could, in such (lawful) legal situation
interfere without grounds with the constitutional authority of the Government
that is entitled to conclude legal transactions within the scope of the law (by
which the court would violate the constitutional principle of separation of powers
specified in Article 4 of the Constitution) for which the Government is
accountable pursuant to the specific rules of political accountability (by which
the court would violate Article 112 of the Constitution)”30.

3.24. The Constitutional Court held that by his assumption of jurisdiction, Judge
Turudić “took over the authority of the 'democratic Croatian state' to determine
whether the agreements were 'prejudicial to its economic interests'31. Moreover,
the demonstration that such agreements were contrary to the interests of the
Republic of Croatia was not based on the public interest test or on the protected
area of interests of the Republic of Croatia specified by the Act on Privatisation
of INA”32 (issues on which the Court did have jurisdiction).

3.25. The Constitutional Court concluded that this erroneous approach was not only
constitutionally impermissible but created a false circular logic leading to a
conviction: “the basic problem in the INA-MOL case arises from the way in
which the court approached the hearing of evidence with respect to the
acceptance of a bribe in the applicant’s case33 … one cannot help but conclude
that the respective court used an inadmissible method for proving [the bribe
agreement]” – as evidenced by the following reasoning from the first instance
judgment:

“Had these concluded agreements not been contrary to the interests of the
Republic of Croatia, and in favour of MOL, there would have been no reason
for giving any promise, i.e., offering a bribe to the defendant Ivo Sanader”34.

3.26. The Constitutional Court concluded that the County Court had approached the
“interests of Croatia” issue as an independent and separate (“contested”) issue,
before the consideration of the very act of accepting a bribe. Consequently, the
County Court first asked whether the executed agreements were “contrary to
the interests of the Republic of Croatia”, and after that (as the second contested
issue) whether the applicant accepted as a Prime Minister a bribe in order to
influence the Government to grant consent for the execution of the respective
agreements 35 . The County Court then used its own conclusion that the
execution of the agreements was “contrary to the interests of the Republic of
Croatia” as evidence that Dr Sanader had accepted a bribe36.

3.27. The Constitutional Court further concluded that in criminal proceedings in which
the Prime Minister is tried for a corruptive criminal offence of accepting a bribe
for the purpose of influencing the conclusion of a legal transaction within the

30 Constitutional Court decision 24.7.2015, cited para. 397.


31 Quoting the ECtHR in Stran Greek Refineries and Stratis Andreadis v Greece, see para. 412 of
Constitutional Court decision.
32 Constitutional Court decision 24.7.2015, para. 419.
33 Constitutional Court decision 24.7.2015, para. 413.
34 Constitutional Court decision 24.7.2015, para. 414, citing pg. 191 of first instance judgment
35 Constitutional Court decision 24.7.2015, para. 415, citing pg. 68 of first instance judgment.
36 Constitutional Court decision 24.7.2015, para. 416.

18
competence of the Government, the question of whether such legal transaction
was “contrary to the interests of the Republic of Croatia” or whether the
“protection of (strategic) interests of the Republic of Croatia” was the motive
behind the conclusion of such transaction could never be contested37.

3.28. The Constitutional Court further held that:

(1) “due to the very fact that a person performing the duty of a prime minister
solicited or accepted a bribe in order to influence within the scope of his
authority the conclusion of a legal transaction within the competence of
the Government, such legal transaction becomes a priori corrupt in the
substantive meaning, whereas the corruptness thereof is prima facie
proven;

(2) therefore, any such transaction is per definitionem contrary to the


interests of the Republic of Croatia, regardless of whether it is
favourable, less favourable, unfavourable, extremely unfavourable,
detrimental or neutral to the Republic of Croatia, strategically or
otherwise, according to its actual effects or dominant political
assessments”38.

3.29. The Constitutional Court held that in the INA-MOL case, it was “sufficient to
prove the very existence of the corruption agreement, that is to prove that the
prime minister accepted a promise to be given a bribe in order to influence the
execution of the agreements between the Government and MOL … After the
existence of such corruption agreement was proven, the very practical
'exercise' of such influence of the prime minister on the Government (for the
purpose of execution of the contested agreements) would no longer be relevant
from the aspect of criminal responsibility of the applicant with respect to the
acceptance of a bribe”39.

3.30. In addition, the Constitutional Court considered a number of further grounds of


appeal which were not upheld:

(i) presumption of Innocence: public statements of state officials


(paragraph 457) and of media (paragraph 465)/USKOK providing
confidential information to media (paragraph 470);

(ii) independent and impartial tribunal (paragraph 488);

(iii) breach of privileged communications – monitoring and following defence


attorneys (paragraph 497); and

(iv) breach of adequate time and facilities for defence (paragraph 504).

37 Constitutional Court decision 24.7.2015, para. 417.


38 Constitutional Court decision 24.7.2015, para. 417.
39 Constitutional Court decision 24.7.2015, para. 418.

19
These matters will be revisited in chapter 5 of this Interim Report (Independent
and Impartial Tribunal) and/or in our Final Report, as appropriate.

Supreme Court decision 24.9.2015

3.31. On 24.9.2015, the Supreme Court disqualified both Judge Turudić and his
deputy President, Dražen Jakovina, from sitting as the Trial Chamber and also
from sitting as President of the Zagreb County Court in these proceedings.

Summary of proceedings against Mr Hernádi

3.32. On 27.10.2010, USKOK requested that the Hungarian authorities interview Mr


Hernádi regarding the FASHA and GMA40. In December 2011, USKOK sent a
request for Mutual Legal Assistance to the competent judicial authorities in
Hungary concerning Mr Hernádi as a suspect. Co-operation was refused on the
grounds it would be injurious to Hungarian national interests and the
investigation was suspended.

3.33. USKOK resumed its investigation into Mr Hernádi on 4.7.2013, once Croatia
had joined the EU. On 27.9.2013, the Zagreb County Court ordered Mr
Hernádi’s pre-trial detention and on 1.10.2013 USKOK issued the First EAW
against Mr Hernádi. On 7.10.2013, the Budapest Metropolitan Court refused to
execute the warrant on the grounds that criminal proceedings had already been
brought in Hungary in respect of the same acts as those on which the First EAW
was based and those proceedings had been halted.

3.34. Mr Hernádi was indicted by USKOK on corruption charges on 31.3.2014 and


the indictment was confirmed by the Zagreb County Court on 10.6.2014. A
preliminary hearing took place in his case on 24.11.2014.

3.35. In October and November 2015, Austria and Germany informed Croatia that
they would not execute the First EAW on the principle of ne bis in idem. In total,
at least 13 Member States indicated that they would not execute the First EAW.

3.36. On 4.12.2015, the Zagreb County Court rejected Mr Hernádi’s motion to


dismiss the proceedings on application of the principle of ne bis in idem and on
15.12.2015, the Court, of its own motion – unusually, not at USKOK’s request
– issued a Second EAW in respect of Mr Hernádi. The Second EAW was not
executed by Hungary.

3.37. On 21.12.2015, the Zagreb County Court joined the Sanader and Hernádi
cases.

3.38. In November 2016, INTERPOL’s decision to delete the Red Notice in respect
of the EAW issued against Mr Hernádi was communicated to the Zagreb
County Court. On 23.12.2016, the UNCITRAL Final Award was handed down

40 Joint chronology submitted by both parties to the UNCITRAL proceedings, cited UNCITRAL Final
Award, para. 303.
20
in Republic of Croatia v MOL Hungarian Oil and Gas plc41 dismissing Croatia’s
allegation of bribery.

3.39. On 27.1.2017, the Zagreb County Court re-submitted the Second EAW to
Hungary on the basis of a change of circumstances (namely that criminal
proceedings had been commenced against Mr Hernádi). The competent
Hungarian authority’s opinion rejecting the Second EAW was forwarded to the
Zagreb County Court on 4.4.2017.

3.40. On 16.5.2017, the Extra-Trial Chamber of the Zagreb County Court (presided
over by Judge Turudić; see further chapter 5 below) requested a preliminary
ruling under Article 267 TFEU from the CJEU relating to the issuing of the
Second EAW against Mr Hernádi; contrary to the requirements of Croatian law,
Mr Hernádi’s Croatian legal team was not notified of the decision of the referring
Court to submit the reference42.

3.41. On 30.5.2017, the Trial Chamber of the Zagreb County Court suspended the
proceedings against Mr Hernádi and Dr Sanader pending the outcome of the
preliminary reference procedure; this suspension was successfully appealed by
USKOK and Mr Hernádi’s Croatian lawyers at the Supreme Court which
overturned the suspension on 19.9.2017 – the County Court re-imposed the
suspension on 19.12.2017, citing a change of circumstances (see paragraph
5.65 below). This second suspension was also overturned by the Supreme
Court, on 22.5.2018.

3.42. A preliminary hearing took place in Mr Hernádi’s case on 18.7.2018. On


25.7.2018, the CJEU delivered its ruling on the EAW reference43. Mr Hernádi
had been detained in Budapest but was released on 23.8.2018 when the
Budapest Metropolitan Court issued a judgment refusing to execute the Second
EAW on application of the ne bis in idem principle and violation of his fair trial
rights to an independent and impartial tribunal.

3.43. A further preliminary hearing in Mr Hernádi’s case took place on 17.9.2018 at


which Mr Hernádi’s Croatian lawyers requested the recusal of the Trial Judge,
Maja Štampar Stipić. This request was refused by Judge Turudić (see
paragraph 5.73 below). Another preliminary hearing took place on 4.10.2018
when Hernádi’s application to dismiss the proceedings on the grounds of ne bis
in idem was rejected.

3.44. On 23.10.2018, Dr Sanader and Mr Hernádi’s trial formally commenced in the


Zagreb County Court. The main evidentiary hearing began on 4.2.2019 before
a three-member panel of the Zagreb Court chaired by Judge Štampar Stipić.
The two other judges are Judge Sanja Mazalin and Judge Martina Maršić.

41 PCA Case No. 2014-15.


42 See CPC/09 Art. 18(3).
43 Case C‑268/17 AY.

21
4. USKOK’S CONDUCT OF THE PROSECUTION

4.1 Further to our remit of monitoring and auditing USKOK’s conduct of the
prosecution, we comment below on the competence of the investigation by
which the integrity of the evidence underpinning the prosecution case must be
assessed. We have identified substantial investigative failures in respect of a
number of areas (see paragraphs 4.12 to 4.49 below), specifically:

(1) Mr Ježić’s financial and corporate dealings with Xenoplast and the
possible impact on his credibility and reliability as a witness;

(2) reliance on the evidence of Mr Hürlimann; and

(3) a failure to interview relevant witnesses, trace the payments and seek
out other corroborative evidence.

4.2 We then comment on the issue of whether USKOK has fulfilled its obligation to
disclose or give access to all relevant material, specifically in relation to Mr Ježić
(see paragraphs 4.50 to 4.89 below). We have identified significant lacunas in
the disclosed case file in respect of information which goes directly to the
central issue in the case: Mr Ježić’s credibility.

Applicable international standards

4.3 Article 6 ECHR generally requires a prosecution service to act with fairness,
impartiality and neutrality. This follows from the ECtHR Article 6 case law which
recognises that the distinct role of the prosecutor gives rise to these obligations.
Thus, in Ferreira Alves v Portugal (No. 3)44, the Court held that the applicant’s
Article 6 rights were violated by non-disclosure by the prosecutor in family
proceedings, notwithstanding it was not a ‘party’, as “by virtue of the authority
conferred on him by his functions, to influence the court’s decision in a manner
that may be unfavourable to the person concerned” 45 . Similarly, in
Menchinskaya v Russia 46 , a violation of Article 6 was inferred from undue
prosecutorial intervention for the benefit of the state.

4.4 These duties were further emphasised by the Council of Ministers of the Council
of Europe in its Recommendation 19 of 2000 on the Role of Public Prosecution
in the Criminal Justice System 47 , which requires public prosecutors to “be
objective and fair during court proceedings” and in particular, to “ensure that
the court is provided with all relevant facts and legal arguments necessary for
the fair administration of justice”48, to “carry out their functions fairly, impartially

44 Application no. 25053/05, 2.6.2007.


45 Ferreira Alves v Portugal (No. 3), above, at para. 38 – see also Martinie v France [GC], no. 58675/00,
12.4.2006, § 50.
46 Application no. 42454/02, 15.1.2009.
47 See also European Guidelines on ethics and conduct for public prosecutors “The Budapest

Guidelines”, adopted by the Conference of Prosecutors General in Europe on 31.5.2005.


48 CoE Council of Ministers Recommendation on the Role of Public Prosecution in the Criminal Justice

System of 2000 (19), Principle 20.


22
and objectively” 49 and to “respect and seek to protect human rights, as laid
down in the Convention”50.

4.5 The Recommendation recognises that the “primary function” of the prosecutor
is “as a custodian of the law: this means that it must behave impartially” 51 – and
specifically, “public prosecutors should ensure equality before the law, and
make themselves aware of all relevant circumstances including those affecting
the suspect, irrespective of whether they are to the latter’s advantage or
disadvantage”52.

4.6 The UN Guidelines on the Role of Prosecutors53 equally require prosecutors to


“perform their duties fairly” and “respect and protect human dignity and uphold
human rights, thus contributing to ensuring due process”54. They are explicitly
required to “carry out their functions impartially” 55 and “with objectivity, tak[ing]
proper account of the position of the suspect and the victim, and pay[ing]
attention to all relevant circumstances, irrespective of whether they are to the
advantage or disadvantage of the suspect”56.

4.7 The obligation to protect a defendant’s fair trial (and other) rights is enshrined
within the International Association of Prosecutors’ definition of professional
conduct as set out in their Statement of standards of professional conduct for
all prosecutors and of their essential duties and rights (adopted in April 1999):
prosecutors are obliged to “always protect an accused person’s right to a fair
trial 57 , and in particular ensure that evidence favourable to the accused is
disclosed in accordance with the law or the requirements of a fair trial” 58; they
shall “carry out their functions impartially” and “always search for the truth and
assist the court to arrive at the truth and to do justice between the community,
the victim and the accused according to law and the dictates of fairness”59; and
they shall perform their duties “fairly”60.

49 CoE Council of Ministers Recommendation of 2000 (19), Principle 24(a).


50 CoE Council of Ministers Recommendation of 2000 (19), Principle 24(b).
51 Commentary on Principle 29 of Recommendation 2000 (19), at pg. 31.
52 CoE Council of Ministers Recommendation of 2000 (19), Principle 26.
53 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of

Offenders, Havana, Cuba, 27.8.1990 to 7.9.1990.


54 UN Guidelines on the Role of Prosecutors, Principle 12.
55 UN Guidelines, ibid, Principle 13(a).
56 UN Guidelines, ibid, Principle 13(b).
57 E.g. prosecutors are specifically required to “examine all evidence to see that it has been lawfully

obtained” under the Budapest Guidelines, cited above, at Article III(i).


58 International Association of Prosecutors Statement of standards of professional conduct for all

prosecutors and of their essential duties and rights (adopted April 1999), Principle 1(f).
59 IAP, Statement of standards for prosecutors, ibid, Principle 3.
60 IAP, Statement of standards for prosecutors, ibid, Principle 4.

23
4.8 Competence is a basic requirement of international standards of prosecutorial
conduct61 and prosecutors are required to make “all necessary and reasonable
investigations and enquiries”62.

4.9 Disclosure by the prosecutor (the corollary of the duty to be objective and fair
in their dealings with judges) is required to safeguard the principle of equality
of arms, which it is prosecutors’ duty to uphold63. Equality of arms requires that
the defence is given access to those documents in the investigation file which
are essential both at the pre-trial stage in order effectively to challenge the
detention and at trial to comply with the requirements of an adversarial trial as
laid down in Article 6: “which means, in a criminal case, that both the
prosecution and the defence must be given the opportunity to have knowledge
of and comment on the observations filed and the evidence adduced by the
other party”64.

4.10 The right of access to information in criminal proceedings is further protected in


EU Directive 2012/13. Article 7 provides that

“Member States shall ensure that documents related to the specific case in the
possession of the competent authorities which are essential to challenging
effectively, in accordance with national law, the lawfulness of the arrest or
detention, are made available to arrested persons or to their lawyers”65.

Access must be granted to “at least to all material evidence in the possession
of the competent authorities, whether for or against suspects or accused
persons, to those persons or their lawyers in order to safeguard the fairness of
the proceedings and to prepare the defence”66. Access must be granted “in due
time to allow the effective exercise of the rights of the defence and at the latest
upon submission of the merits of the accusation to the judgment of a court”67.
Article 8(2) provides that the defence must have the means to challenge the
possible failure or refusal of the competent authorities to provide information in
accordance with the Directive.

4.11 Disclosure of any formal or de facto grant of immunity from prosecution (or other
inducement) to witnesses falls into a distinct category of importance, given its
central role in the determination of credibility. The ECtHR has emphasised the
need for full disclosure of any agreement between the prosecution and the

61 See e.g. International Criminal Court Regulations of the Office of Prosecutor, Regulation 17 “highest
standards of efficiency, competence and integrity”; UN Guidelines on the Role of Prosecutors,
Regulation 1.
62 See e.g. Article III (e) of the The Budapest Guidelines.
63 CoE Council of Ministers Recommendation of 2000 (19), Principle 29 – see also Article III (l) of the

Budapest Guidelines, cited above, which requires that prosecutors “safeguard the principle of
equality of arms, in particular by disclosing information to the accused and his or her counsel in
accordance with the law and principle of fair trial” – see also Foucher v France, no. 22209/93,
13.3.1997, confirming access to the case file at an early stage in proceedings as a component of
equality of arms.
64 Garcia Alva v Germany, no. 23541/94, 13.2.2001, at para. 39.
65 Art. 7(1) 2012/13/EU.
66 Art. 7(2) 2012/13/EU.
67 Art. 7(3) 2012/13/EU.

24
witness as an essential component of a fair trial reliant on the evidence of an
accomplice68. The domestic courts must adopt a “critical approach” to such
evidence – in Baragiola v Switzerland 69, the fact that the conviction was not
solely based on the accomplice’s evidence was crucial to the Commission’s
determination that there had been no violation of Article 6.

USKOK’s investigative failures

4.12 The traditional role of judicial investigation was replaced in Croatia with the
State Attorney’s investigations by the wide-ranging reform of criminal procedure
introduced by the CPC/09. Given the importance of a conviction to Croatia’s
interests, including the perceived importance of the Sanader prosecution to
Croatia within the international context 70 , an independent, impartial and
competent prosecution service is a vital protection for the fair trial rights of the
Defendants.

4.13 The evidence presented by the prosecution is inevitably determined by the


quality of the investigation, which, as noted at paragraph 4.5 above, should
encompass all that is reasonable and necessary, whether it assists the
prosecution case or that of the defendant71. USKOK, however, has failed to
investigate pertinent areas of enquiry regarding Mr Ježić’s credibility. His
credibility was clearly put in issue by the matters dealt with by virtue of his status
as an accomplice, discussed further below, and by his benefit of €5 million. He
also had a personal motive in that he held MOL responsible for “destroying
Dioki due to its overpriced natural gas”72 (the evidence given in Court is that
INA had kept the price of gas below that of market prices for “social reasons”,
to which MOL objected73).

Mr Ježić’s financial and corporate dealings with Xenoplast

4.14 One notable area in respect of which USKOK has seemingly failed to conduct
an effective and necessary investigation is into Mr Ježić’s financial and
corporate dealings with Xenoplast, the integrity of which must be considered
key to the assessment of his credibility. The structure of Xenoplast, the
company through which Mr Ježić chose to launder what he alleged to be bribe
money, was according to Mr Ježić owned 10% by him and 90% owned by
absent shareholders at the time the €5 million was received. The identity of the
other purported shareholders or shareholder, on his account, remains a source
of mystery. Mr Hürlimann, however, was adamant that Mr Ježić had always

68 X v UK (1976) 7 DR 115.
69 (1993) 75 DR 76.
70 Documents published by the whistleblower website WikiLeaks suggest that Mr Bajić [State Attorney

identified as “chief force behind the anti-corruption efforts”] regularly reported on the progress of the
Sanader case to the local United States embassy: see Freedom House Report 2013.
71 CoE Council of Ministers Recommendation of 2000 (19), Principle 26.
72 Jutarnji List, 3.8.2013.
73 Evidence of Mr Polančec, MHUT 24.9.2019 (part 1) pp. 5-6.

25
wholly owned the company since he provided the initial share capital and that
ownership structure had never changed74.

4.15 Mr Ježić told USKOK in his statement that he was “planning on contacting [his]
Swiss colleagues with whom [he was] the co-owner of [Xenoplast]”75; however,
he stated in evidence that at that time he had not known who the other 90%
shareholders were76. At the hearing on 4.2.2019, he said that he knew who “he”
(the co-owner) was but did not want to name him77. On being questioned by Mr
Boyce QC on 10.5.2019, he refused to identify him78. The Judge instructed him
that he must answer the question and rejected Mr Ježić’s suggestion that it had
been agreed for him “not to say” at the time of his first deposition. Mr Ježić
insisted that he would be exposed to material damage by being sued by the
deceased foreign co-owner’s relative for “bringing [him] into this situation”. Mr
Ježić further stated that the co-owner’s data was not public and that he had
been listed as the owner of 100% of the company on the Swiss company
register and he would be subject to having to pay “couple of hundreds upwards
thousand Swiss francs”79 for breaching a confidentiality agreement.

4.16 The Judge asked him to bring the confidentiality agreement to Court, and he
said he would ask Mr Hürlimann. Mr Ježić said Mr Hürlimann had drafted it; Mr
Hürlimann however denied in evidence at this trial that there had ever been a
confidentiality agreement80 (and when he last gave evidence, on 7.11.2019,
stated that Mr Ježić had not asked him to look for any documents in the last six
months81). Mr Ježić agreed that he had “possibly” acquired the other 90% of
Xenoplast’s shares while he was in custody but he had not known the identity
of the shareholder from whom he obtained these shares – without payment –
until some significant time later82.

4.17 The Judge reminded Mr Ježić that he said on 25.5.2011, that there were several
shareholders, and on 8.3.2012 that Hürlimann had paid off the “retreating”
shareholders (this was denied by Mr Hürlimann83). On 2.3.2012 he said again
that there were several shareholders, but that they did not know about the
transaction. On 10.5.2019, he said, “the shareholder ran away in panic from
such company” and that they had not been paid any compensation 84. When
asked to explain the differences between these statements, Mr Ježić answered
that “He had a few partners, that is why I mentioned several shareholders.
However, it was always one person in the relation to myself and the company...

74 MHUT 2.9.2019, pg. 11; MHUT 14.11.2019, pg. 114.


75 See MHUT 10.5.2019 (part 2), pg. 33.
76 MHT 4.2.2019, pg. 9.
77 MHUT 4.2.2019, pp. 6-7.
78 MHT 10.5.2019 , pg. 39.
79 MHUT 10.5.2019, pg. 44; the meaning is ambiguous, cf. MHT pg. 41.
80 MHUT 2.9.2019, pg. 12.
81 MHUT 7.11.2019, pg. 103.
82 MHT 5.10.2019, pg. 46.
83 MHUT 2.9.2019, pg. 19.
84
MHT 10.5.2019, pp. 46-47.
26
with regard to the payment, I was assuming that when they went away, Stephan
Hürlimann handled the situation, and that they were paid”85.

4.18 At the hearing on 12.12.2019, at which Mr Ježić was required to return to


explain the many inconsistencies between his and Mr Hürlimann’s evidence,
he stated that Hürlimann "made all of the decisions on his own" in respect of
Xenoplast86 and that the shareholder’s identity was not revealed on the books
of the company, although Mr Hürlimann was well aware of it, and was lying in
order to cover up his own wrongdoing to protect his own position87. However,
he also said that the purpose of the shareholder (who had not contributed any
capital and received 90% because he had asked for it) “gave power and
recognition to the company” and “those who had to know – knew, banks and
certain business partners – it facilitates access …. It is important because he
operates like a guarantor” – thus there was no issue with confidentiality in
respect of these people, only the Court88.

4.19 Mr Ježić also maintained that he did not know the identity of the 90% owner
until Mr Hürlimann told him later on, notwithstanding that the banks and
business partners knew, stating, seemingly by way of explanation, that at the
time, he “was seldom there" and he went only five or six times a year89. At the
hearing on 10.5.2019, he had given evidence that he had not known the identity
of the secret shareholder, or whether there was more than one in 2009, nor at
the time of Dr Sanader’s trial in 201290. Mr Ježić gave no explanation as to why
he himself invested in – and used to launder a criminal payment through – a
company of whose owners he was unaware (but in respect of whom he had
signed a confidentiality agreement in “2006 or 2007”91). He gave no explanation
as to why the co-owner relinquished the 90% share without payment, given
Xenoplast was asserted to be a company of substance with significant assets.
Nor did he explain the odd role Mr Hürlimann played within this structure
whereby as the manager of the company (“the chief” who was the “director …
responsible for the complete functioning of the company” 92) he was relieved of
any reporting obligations – involving a multimillion-euro payment for no
identified services – to the 90% owners of the company.

4.20 Mr Ježić asserted, in direct conflict with Mr Hürlimann, that Mr Hürlimann paid
this shareholder after he left (although not apparently for relinquishing his 90%
shareholding, which he did for free), with money that he did not know the source
of, but suggested “it was possibly from the company”. He asserted the secret
shareholder was paid for “his support”, by which he meant his “silent existence,
a phone call for ... If you are friends with the [Managing Director] of a large
bank, it is easier when he calls someone”. When it was suggested to him that
this procedure appeared to look like a criminal offence, Mr Ježić responded,

85
MHT 28.5.2019, pg. 4.
86 MHUT 12.12.2019, pg. 13.
87
MHUT 12.12.2019, pp. 24, 33.
88
MHUT 12.12.2019, pp. 40-42.
89
MHUT 12.12.2019, pg. 43.
90 MHUT 10.5.2019 (part 2), pp. 27, 31.
91 MHT 10.5.2019, pg. 52.
92 MHT 13.6.2019, pg. 2.

27
“We seem to be living in two different worlds, as if none of you ever did this”.
When asked why this supportive role could not be performed by a friend, rather
than a secret 90% owner, Mr Ježić accused counsel of “splitting hairs – I think
you know what I am talking about”93.

4.21 In respect of the confidentiality agreement, Mr Ježić maintained that he had


asked Mr Hürlimann to look for it (it was “not true” what Mr Hürlimann had said)
and referred to an e-mail from Mr Hürlimann which he said would confirm it. On
being required to produce the e-mail (dated 30.10.2019) it was in fact seemingly
a response to a question from Mr Ježić about how long documents were
retained in the company archive. In it, Mr Hürlimann stated that “[t]he company
must keep documents for 10 years. I am cleaning the archives, I intend to erase
everything older than this, if you agree”. Mr Ježić stated that he responded by
phone and agreed94.

4.22 We note that far from being a request to look for the confidentiality agreement,
in fact the ten-year time period would appear to explicitly cover the destruction
of it (signed in 2006 or 2007) and indeed all documents relating to the time
period when the offence was alleged to have taken place. The fact that relevant
documents can even now be destroyed is indicative of USKOK’s failure to
acquire all relevant evidence at the time of their investigation.

Reliance on Mr Hürlimann’s evidence

4.23 USKOK’s reliance on Mr Hürlimann’s evidence as a witness of truth who


corroborates Mr Ježić, without further investigation, fails to acknowledge (or
appreciate) the inconsistencies between his evidence and key aspects of Mr
Ježić’s testimony. According to Mr Hürlimann, he had been taken to USKOK
without his knowledge by either Mr Ježić or his driver (having been collected
from the airport when he believed he was attending Zagreb in connection with
Dioki95), and Mr Ježić was "present", with an unnamed “Croatian lawyer” when
he gave his statement to USKOK96. It is not clear whether Mr Hürlimann was
referring to Mr Ježić's presence in the interview room or just the building. If it
was the latter, then we consider that such a procedure, whereby a witness is
present when another witness provides a corroborating statement, does not
safeguard the integrity of witness testimony. In any event, there are significant
inconsistencies between these two witnesses. For example, Mr Ježić denied
that he had taken Mr Hürlimann to USKOK to give his statement or indeed that
he had seen him at all on the day they gave their statements, or even knew that
he was there 97 (he explained Mr Hürlimann’s attendance as due to Mr
Hanžeković98). Mr Ježić asserted that Mr Hürlimann would never have come to
Zagreb on Dioki business as he had nothing to do with “Zagreb’s Dioki, taxes,…
it was never his job, he never discussed those matters”99 (he said Mr Hürlimann

93
MHUT 12.12.2019, pp. 45-47.
94
MHUT 12.12.2019, pp. 51-53, 151-153.
95 MHUT 14.10.2019, pp. 174, 186.
96 MHUT 14.10.2019, pp. 179-180.
97 MHUT 14.6.2019 (part 1), pg. 40.
98 MHUT 14.6.2019 (part 2), pg. 22.
99
MHUT 12.12.2019, pg. 116.
28
was “mixed up because of the pasing of time”100). Notwithstanding this, he also
asserted in his testimony that Mr Hürlimann had approved the huge personal
loan of 12.3 million Swiss francs from Dioki Holding to Mr Ježić101 (denied by
Mr Hürlimann).

4.24 Under Croatian law, the record must contain the names and roles performed of
all persons present during the performance of any procedural act 102 (a record
of the identities of anyone present during an interview is also required by law in
the UK103 and now also in Germany104). Such a record is necessary in cases
where the presence or absence of persons is challenged and/or this affects the
integrity of the statement, and in the interests of transparency. The requirement
is purportedly recognised by USKOK in that the name of two investigators, an
interpreter and a “record keeper” are recorded as present on the face of the
statement. However, if Mr Hürlimann is correct that Mr Ježić and (presumably)
Mr Hanžeković were present, not only are they not recorded as being present,
but the record appears be inaccurate in other ways. Thus, Mr Hürlimann said
that he was questioned by a man and that there were “certainly men in the
room”105. However, no men other than Mr Hürlimann are recorded as present
in the room: the interview was conducted by two women and the interpreter and
the “record keeper” were also female. There has been no explanation as to why
these inaccuracies occurred. The Trial Judge prohibited Mr Boyce QC from
asking Mr Ježić questions concerning Mr Hanžeković’s attendance at USKOK
on the day or the circumstances in which the statements were taken106.

4.25 It is not clear where USKOK had obtained the Xenoplast documents that were
put to Mr Hürlimann in interview107; Mr Ježić gave his initial statement the same
day but it is recorded as commencing after Mr Hürlimann’s (at 17.47 and 16.00
hrs respectively). Mr Hürlimann confirmed that he had not brought any
documents with him to USKOK (which he had not been expecting to attend108).
Mr Ježić gave evidence on two occasions that Mr Hürlimann had brought the
documents that Mr Hanžeković instructed him to109. When he was confronted
with Mr Hürlimann’s denial at the hearing on 12.12.2019 however, he first
denied ever having said that Mr Hürlimann had brought the documents and

100
MHUT 12.12.2019, pg. 118.
101 MHUT 12.12.2019, pg. 145.
102 CPA/08, Art. 83(1). We note also in this context the involvement of the State Attorney (Mr Bajić) in

the seizing of the Marcellino CCTV evidence, see evidence of Mario Čerhak MHUT 17.10.2019, pp.
30-31.
103 The Police and Criminal Evidence Act 1984, Code C 11.7.
104 The recently (27.8.2017) amended § 168b Strafprozessordnung (implementing Directive

2013/48/EU) provides in its para. 1 for the documentation of investigative measures of the
prosecuting authorities (“… Ergebnis der Untersuchungshandlungen …. aktenkundig zu
machen…”).
105 MHUT 14.10.2019, pg. 190.
106 MHUT 14.6.2019 (part 1), pp. 39-40.
107 The agreements between Hangarn and Xenoplast dated 4.6.2009, and between Ceroma and

Xenoplast dated 3.6.2009, and the memos terminating the agreements addressed to him dated
14.12.2009 – see statement of Mr Hürlimann to USKOK 25.5.2011.
108 MHUT 14.10.2019, pg. 201.
109 MHUT 14.6.2019 (part 2), pp. 17-18.

29
when it was shown that he had, suggested “maybe these were delivered to
Hanžeković in another manner”. This reflects on his reliability generally.

4.26 We had understood that it was Mr Ježić’s initial statement to UKSOK that had
led to the allegations against Dr Sanader being widened to include the subject
of these proceedings110. It is unclear, therefore, where USKOK obtained the
pertinent details that they were able to put to Mr Hürlimann before the recorded
questioning that took place of Mr Ježić. We can only assume they must have
had a private undisclosed discussion with Mr Ježić and/or Mr Hanžeković at
which documents were provided, prior to them formally questioning Mr Ježić
‘on the record’111. At the hearing on 12.12.2019, Mr Ježić suggested for the first
time that he may have provided some of the documents. He stated that he did
“not know” whether he had had a private meeting with USKOK before he gave
his statement. Surprisingly, the Panel Chair did not appear to grasp the
significance of this issue and ruled further questions “irrelevant”.

4.27 Further, Mr Hürlimann’s role in the laundering of the alleged bribe proceeds is
one that ought properly to have been subject to close scrutiny. Mr Ježić gave
evidence that he did not tell Mr Hürlimann what the purpose of the consultancy
contracts was – “He was not aware of the borderline part of the agreement” –
as he did not want to “drag him into it” or give him “unnecessary headaches”112.
However, he later described Mr Hürlimann as “the chief” who was the “director
… responsible for the complete functioning of the company”113. Mr Ježić also
said that Mr Hürlimann did not act on his (Mr Ježić’s) instructions – “I wasn’t his
superior. He had, as the CEO, he had complete freedom of action”114 – and that
he was free to draw up the consultancy agreements. Such was his autonomy
apparently that Mr Hürlimann did not consider it necessary to inform Mr Ježić
that he had received the draft contract for the transfer of €5 million on
21.5.2009, so that at Mr Ježić’s meeting with Dr Sanader five days later at his
office he informed him that “nothing [had] happened”115.

4.28 This is in sharp contrast to Mr Hürlimann’s own description of his role within the
company, which was of a “managing advisor” and he “was not involved with the
business of the company in any way”116. He stated that the business was run
by two employees who had been hired by Mr Ježić (whose names he could not
remember). He said his role was “tax advisor and [he] occasionally signed
agreements between Xenoplast and other companies”. He was the only person
authorised to act and he acted “at Ježić’s order” and described him as a

110 Mr Ježić confirmed that he had gone to USKOK to report the allegation of his own volition, MHUT
14.6.2019 (part 2), pg. 15.
111 Mr Ježić stated, in relation to the documents, that “we delivered everything we were asked to”, MHUT

14.6.2019 (part 2), pg. 42.


112 MHUT 10.5.2019 (part 1), pg. 25.
113 MHT 13.6.2019, pg. 2.
114 MHUT 10.5.2019 (part 2), pg. 21.
115 MHT 28.5.2019, pg. 19.
116 MHUT, 2.9.2019, pg. 14.

30
“client”117; the contract negotiations, he said, were conducted by Mr Ježić and
the “content of the contract was specified by Ježić”118.

4.29 However, Mr Ježić was clear that the purpose of the contracts was a sham and
that no services were to be provided, as evidenced by the statement he gave
to USKOK in May 2011:

“However, the one thing I did know was that these were agreements on the basis
of which no activities were going to be performed; instead the same were going to
be a front for the payment of the fee, as it had been agreed upon with Ivo
Sanader119”.

4.30 Mr Hürlimann in evidence “could not remember” why he signed the Ceroma
contract (along with many other issues120) when it contained an assertion he
knew to be untrue (the contract stated it was on behalf of a “large Russian
company”) 121 . Both Mr Hürlimann and Mr Ježić were clearly implicated in
laundering what Mr Ježić alleged to be the proceeds of crime. According to Mr
Ježić, it was Mr Hürlimann’s decision for Xenoplast to loan €4,567,608 to Dioki
Holding – “I suppose that Mr Hürlimann judged that it was necessary to do that
and so he, so he did that, and I accepted that”122 – a company over which he
exercised responsibility for its “complete functioning” 123 : “In Dioki I was [in
charge]. But again, above everything again there was Hürlimann, as concerns
these procedures and these actions”124 (cf. Mr Hürlimann, above, who explicitly
stated that the loan was Mr Ježić’s decision125). Mr Ježić further asserted that it
was Mr Hürlimann’s decision to retrospectively merge Xenoplast and Dioki
Holding after Mr Ježić informed him that the €5 million was the proceeds of
crime126 – Mr Ježić stated that he had no knowledge as to why the merger was
given retrospective effect because he “had absolute trust in Mr Hürlimann and
Mr Hausheer as the legal controller of all procedures”127.

4.31 Mr Hürlimann undermines Mr Ježić’s credibility in fundamental ways. Not only


does he contradict Mr Ježić’s description of him as exercising any independent
decision-making role in the running of the company128, but also in the specific
detail, for instance, stating that Mr Ježić was the sole beneficial owner of
Xenoplast129 and he “had never heard of a shareholder or owner who had ‘run
away from the company’”, in contrast to Mr Ježić’s lengthy description given to

117 MHUT, 2.9.2019, pg. 5.


118 MHUT 14.10.2019, pg. 21.
119 Mr Ježić’s statement to USKOK 25.5.2011, pg. 3.
120 See, e.g., MHUT 7.11.2019 pp. 6-8, 11, 23, 25, 66, 84, 119, 121.
121 MHUT 14.10.2019, pp. 30-32.
122 MHT 8.4.2019, pg. 26.
123 MHT 13.6.2019, pg. 2.
124 MHT 8.4.2019, pg. 47.
125 MHUT 14.10.2019, pg. 101.
126 MHT 8.4.2019 pg. 43.
127 MHT 8.4.2019, pg. 21.
128 MHUT 14.10.2019, pg. 54.
129 MHUT 14.10.2019, pg. 73.

31
the Court as to why he could not name the 90% shareholder(s), referred to at
paragraphs 4.13 to 4.19 above.

4.32 The fact that an entire evidence session was required to deal with the
contradictions between Mr Ježić’s and Mr Hürlimann’s sworn testimony,
witnesses who on the prosecution case are supposed to corroborate each
other, clearly demonstrates the very significant issues with reliance on Mr
Ježić’s reliability as the foundation of the prosecution case. On multiple
occasions during the hearing on 12.12.2019, Mr Ježić’s only explanation for
inconsistencies was either that Mr Hürlimann had lied to the Court (in respect
of the role he played in the company; the existence of the other shareholder(s);
payment of money to the 90% owner; whether there was a confidentiality
agreement and whether he was asked to look for it by Mr Ježić) or that he
“became mixed up in his mind through the passage of time” (regarding matters
on which Mr Hürlimann displayed an uncharacteristic recall of detail, such as
that Mr Ježić had told him that contracts with Ceroma and Hangarn related to
prefinancing of raw materials which Dioki needed to continue production and
reflected future business deals between MOL and Dioki, with no mention of
“consultancy services” – information he had also conveyed to Credit Suisse
when they conducted their anti-money laundering checks).

4.33 There are significant and unexplained inconsistencies between Mr Ježić and
Mr Hürlimann that go to the heart of the prosecution case. In relation to the
contracts themselves, these include what Mr Ježić told Mr Hürlimann their
purpose was, what he said in respect of their termination130, and whether any
draft contracts ever existed. Mr Ježić claimed for the first time at the hearing on
12.12.2019 that the draft contract which Mr Hürlimann gave evidence he had
shown Mr Ježić (one of several drafts, the content of which had been
predetermined by Mr Ježić) had in fact been sent after the event to create a
false impression (he had previously asserted that he had never seen the draft
contract before, but now suggested it had later appeared, he attempted to
explain on 12.12.2019 that he had meant that it “had not officially formed part
of our records” and ”maybe I forgot about this detail when I said I did not see
it”). He said that he communicated his suspicions to his lawyer at the time, but
not to USKOK.

4.34 It is surprising that Mr Ježić (or his lawyer) did not consider that the existence
of a suspicious draft contract was a relevant matter to relay to USKOK, or to
refer to it at Dr Sanader’s first trial: a false draft contract sent after the event
may be considered to be good evidence that that contract did not have a
legitimate function. It is exactly this type of issue that could be proved either
way if fax and computer records had been seized by USKOK as they should
have been.

4.35 Mr Ježić and Mr Hürlimann were also inconsistent in relation to who had
informed whom that Mr Fazakas represented MOL: the only link on the

130 Mr Hürlimann gave evidence that Mr Ježić told him the contracts were terminated because Dioki did
not meet its obligations (5.7.2019); Mr Ježić gave evidence that he only told him that “the second
part of the payment would not happen”.
32
prosecution case between the payments and MOL. Mr Hürlimann stated that
Mr Ježić told him that Mr Fazakas would contact him on behalf of MOL, whereas
Mr Ježić testifed that Mr Hürlimann told him that Mr Fazakas had presented on
behalf of MOL131.

4.36 It is clear that both witnesses cannot be accepted as reliable: both have
accused the other of lying to the Court on key issues at the heart of the
prosecution case. One or other of these ‘corroborative’ witnesses has perjured
himself before the Trial Court. On Mr Ježić’s account, Mr Hürlimann has done
so in order to cover up his own wrongdoing in deliberately filing inaccurate
company documents and he has supplied false information to money
laundering enquiries by their bankers. Mr Hürlimann on the other hand
confirmed that Mr Ježić had knowingly submitted false information on Court
documents connected with these proceedings, when it was asserted in Dioki
Holding’s appeal against the order to pay €5 million into the Croatian state
budget that Mr Ježić had not been the majority owner of Xenoplast at the time
of the commission of the alleged offence. Surprisingly, the Panel Chair did not
consider that Mr Ježić needed to be questioned in detail about this alleged
attempt to pervert the Court’s process, and she pressed Mr Boyce QC to move
on.

4.37 We are concerned that apparent failures by USKOK to investigate the corporate
dealings of Mr Ježić, through a detailed examination of the accounts and
business documents132 that would corroborate or otherwise the various issues
which have been raised by which Mr Ježić’s credibility must be assessed, have
been compounded by the Court’s refusal to order the production of such
evidence (Court order of 30.9.2019; see paragraph 5.100 below).

Failure to seek out/consider other relevant evidence

4.38 A witness who could be instrumental in understanding the legality of Mr Ježić’s


opaque corporate dealings is Urs Hausheer, the lawyer Mr Ježić said still today
“manages everything concerned with the functioning of [Ježić’s] companies
from the legal aspect” from his law offices which are registered at the same
address as Dioki Holdings. Mr Ježić described him as “responsible for the
complete legality of the functioning both of Dioki Holding and of Xenoplast while
it was operating”133 (it has been suggested in the press that the secret co-owner
of Xenoplast is in fact Mr Hausheer 134 ). In fact, Mr Ježić thought that Mr
Hürlimann had sought legal advice from Mr Hausheer as to the viability of the
(sham) contracts and evidently received approval 135. Indeed, according to Mr
Ježić, Mr Hausheer had gone with him to meet Mr Fazakas and Mr Hausheer
had communicated with Mr Fazakas regarding the return of the money136. Mr
Hausheer however did not appear as a witness at the trial, nor does he ever

131 See hearing 12.12.2019.


132 Mr Ježić stated that USKOK did not ask him for bank statements for Xenoplast or Dioki Holding,
MHUT 10.5.2019 (part 1), pg. 12.
133 MHT 13.6.2019, pg. 3.
134 Article by Vojislav Mazzocco, www.index.hr, 31.5.2019.
135 MHT 13.6.2019, pg. 5.
136 MHUT 14.6.2019 (part 2), pg. 29.

33
appear to have been interviewed by USKOK as a witness or in relation to his
complicity in a money laundering offence committed through the sham
contracts which he apparently approved. The defence application to have
submitted into evidence his communications relating to the €5 million
transaction were refused by the Trial Court (order of 30.9.2019, discussed in
chapter 5 below).

4.39 Further, as the prosecution case rests entirely on proving the link between the
companies that made the allegedly corrupt payments to Xenoplast and the
second Defendant, we would have expected the tracing of these payments to
have played a central role in USKOK’s investigation. We note, however, the
absence of any adequate attempt to trace the payments – or of any evidence
to prove that Mr Hernádi paid, or caused to be paid, any bribe, in respect of the
first Sanader trial or in the current proceedings. These were also the subject of
criticism in the report of Sir David Calvert-Smith 137 , who further noted the
absence of any independent evidence introduced as part of the prosecution
case as to how it was that Mr Hürlimann advised Mr Ježić that the €5 million
had arrived in the Xenoplast account and that there was no indication that e-
mails, faxes or other communications data were searched in order to
corroborate Mr Ježić’s claims: “This seriously undermine[d] [the investigative
author’s] confidence in the thoroughness, reliability and safety of the
investigation processes adopted by USKOK”.

4.40 The investigative author of the report expressed further concern about
USKOK’s failure to investigate the evidence given by Mr Fazakas and Mr
Gutseriev on this point, noting that there was no indication of any attempt by
USKOK to seek to establish whether what Mr Fazakas said about the money
could be proved or disproved138:

“In the opinion of the Investigative Author, the evidence provided by Fazakas
and Gutseriev in relation to their account as to the Druzhba-Adria Project is
credible, and a significantly more reasonable and likely explanation for the
payments from Ceroma and Hangarn to Xenoplast than that put forward by
Ježić and Hürlimann. However, like other exculpatory evidence, it was not
explored or corroborated effectively by the USKOK investigation139”.

4.41 In the current proceedings, the witness Vesna Trnokop Tanta confirmed that
she had worked as part of the Croatian delegation on the Družba Adria project
until she moved jobs in 2004. She confirmed that Krk (where Mr Ježić/Dioki
owned facilities) was foreseen to be the export port and that Mr Fazakas had
attended as a representative of Yukos and was present with the MOL
delegation which was also involved in the project140. Although it appears that
the prosecution case must be that Ms Trnokop Tanta’s role coincided with the
end of the interest in the project, and that Družba Adria was not something that
Mr Gutseriev and Mr Fazakas could credibly be exploring in 2009, Mr Hernádi’s
defence team presented documents produced by the Croatian state which

137 DC-S report, para. 159 et seq.


138 DC-S report, paras. 161 and 165.
139 DC-S report, para. 199.
140 MHUT 27.9.2019, pp. 6-9, 16.

34
showed that the Družba Adria project was still part of its formal Energy Strategy
in 2008 and 2009141.

4.42 Mr Polančec gave evidence that the Družba Adria project had been active until
2005, and in 2007 and 2008 he was personally involved with the relaunch of
“negotiations with Russians about revitalizing the project”. He stated that the
Russians proposed re-initiating it142. He confirmed that some of the models for
the project would provide Mr Ježić with the possibility of selling his land on
Krk143. He stated that the discussions about the project came to an end when
Dr Sanader left office. Mr Šuker gave evidence the purpose of the project was
the energy stability of Croatia and positioning on the energy map of Europe and
that the project had been active from 2007 to 2009144. This evidence would
appear to be consistent with that of Mr Fazakas in providing a credible
explanation as to why payments may have been made by Russian oil interests
to Mr Ježić’s company in order to progress the project.

4.43 This demonstrates the inadequacy of the investigation by USKOK on this issue,
whereby crucial government documents confirming that the disputed project
was part of their official energy strategy were produced by the defence, as
opposed to having become available as a result of USKOK’s investigation into
whether that the explanation for the funds as relating to the Družba Adria project
was not credible. It appears that Mr Polančec was not even asked to look for
any documents in relation to the re-vitalised negotiations145.

4.44 Subject to similar criticism in the report of Sir David Calvert-Smith was
USKOK’s apparent failure to consider the conclusions of MOL’s internal
inquiry 146 which assessed whether, in the course of MOL’s business
relationship with Hangarn, there was any possibility that payments could have
been manipulated above market price in order to fund a bribe. A detailed
analysis concluded that there was not. MOL did not have any business
relationship with Ceroma and in the view of the investigative author, there did
not seem to have been any mechanism by which MOL could have covertly paid
Ceroma, which was confirmed by Ceroma’s bank statements, which he had
seen147.

4.45 As set out above, we consider that the matters identified in the report of Sir
David Calvert-Smith remain the subject of valid criticism in relation to the
current trial. We note that the Court refused to permit Mr Hernádi's defence
team to call the evidence of Mr Dearman, discussed at 12.3 below, and thereby
excluded from its consideration evidence which would have remedied USKOK's
investigative failure in this regard.

141 Energy Development Strategy (code 8312), pg. 25 and Adjustments and Amendments to the
Croatian Strategy of Energy Development dated 17.7.2008, pg. 67.
142 MHUT 24.9.2019 (part 2), pg. 59.
143 MHUT 24.9.2019 (part 2), pg. 54.
144 MHUT 24.9.2019 (Mr Šuker), pg. 29.
145 MHUT 24.9.2019 (part 2), pg. 61.
146 DC-S report at paras. 184 et seq.
147 DC-S, para. 186.

35
Video from the Marcellino restaurant

4.46 No events that go to the existence of the bribe agreement are said to have
occurred at the meeting at the Marcellino restaurant between Dr Sanader, Mr
Ježić and Mr Hernádi. Nonetheless it is considered relevant because the video
footage that exists in respect of it was described by Judge Turudić as “material
evidence” which (along with the exit and entry logs for the meeting at the Prime
Minister’s office), provided “a proof that actually backs and strengthens the
statement of Robert Ježić”; and along with the “partial confirmation” of the
statement of Mr Fazakas and the statement of Mr Hürlimann persuaded him to
“fully accept” the statement of Mr Ježić148.

4.47 The defence have challenged the integrity of the video footage from the
restaurant which demonstrably does not correspond to events as described by
Mr Ježić on that day (and as agreed by all parties). Mr Ježić’s account was that
he and Dr Sanader arrived first, had lunch, and then were later joined by Mr
Hernádi: the only time when Dr Sanader and Mr Hernádi were alone together
was far later in the afternoon (after Mr Ježić had paid the bill and left, over 1.5
hours after the time stamp on the video) and at a table which had already been
used for lunch. Mr Ježić could not explain why the footage showed Mr Hernádi
sitting at a table that was unused and still set for four people – Ježić was
adamant they had had lunch by the time Mr Hernádi arrived and suggested that
the (sole) table in the private room must have been cleared away 149 (and
presumably re-laid, for four, while they were sitting there).

4.48 We note that USKOK’s case must be that the time stamp at least on the
videotape is inaccurate (in order to correspond with Mr Ježić’s testimony) but
the restaurant owner, Mario Čerhak, asserted that the time clock on the footage
was accurate150. Mr Čerhak asserted that he had partially deleted the rest of
the footage from that day and previous days, for various reasons151 – with only
the four minutes which USKOK seized two years later, remaining by chance;
he stated that after USKOK had visited him he deleted all other existing footage
so he “would not end up being in this situation where [he is] explaining all of
this”152. However, Dr Sanader’s lawyer’s application for an IT expert to examine
the footage was rejected153.

148 Turudić first instance oral judgment, pg. 9.


149 Mr Ježić said that he was there when Mr Hernádi arrived and stayed for about 30 minutes after his
arrival. He said he paid the bill at 15.39. He was shown the video timed at 13.56 in which he was
not present but Mr Hernádi was and claimed the timing on the footage could not be right as he was
definitely at lunch at that time, MHT 28.5.2019, pg. 32.
150 Čerhak, MHUT 17.10.2019, pg. 91.
151 Čerhak, MHUT 17.10.2019: he asserted the deletions had been made to “protect” his customers

(pg. 7); but also randomly to free up memory space (pg. 36); he asserted that the remaining 4-minute
sequence was retained by chance (pp. 43, 46), but also that he kept footage in case he needed
some of Dr Sanader to show it to the Security and Intelligence Agency (pg. 55). He asserted for the
first time at this trial that his waiters had told him that Dr Sanader was seen “switching batteries” (pg.
83), but the footage purporting to show this did not show the waiters who had purportedly witnessed
it, pg. 77ff (cf minutes of evidence at the first Sanader trial, 11.01.2012).
152 e.g. Čerhak, MHUT 17.10.2019, pg. 103 (also pp. 90, 99).
153 Application, MHUT (Čerhak) 17.10.2019, pg. 111ff, Decision MHM, pg. 3.

36
4.49 Despite the assessment of Judge Turudić (see paragraph 4.46 above), the
evidence relating to this day generally would appear to be of no more than
tangential relevance, given that no incriminating discussions or other evidential
events are alleged to have occurred154; this is recognised in the Trial Chamber’s
decision refusing the defence application for the footage to be examined by an
expert “on the ground that the recording does not in itself have any probative
value for establishing the facts relevant in the present proceedings”155. This
raises the issue of why the evidence was heard at all. However, to the extent
that the video may be considered relevant by the Court, the evidence of its
integrity that is currently before the Court, that of Mr Čerhak, is plainly
insufficient. The Trial Chamber would have been assisted in determining its
integrity by expert evidence, and by evidence of the chain of custody of the
video footage.

Failure to give access to relevant material

4.50 As recognised at paragraphs 4.9 to 4.11 above, being given access to relevant
information by the prosecutor is a key aspect of ensuring equality of arms.
There are substantial issues which arise concerning Mr Ježić’s status: as an
accomplice, the potential inducements that may have been provided to him by
way of the absence of prosecution against him in these proceedings; the
resolution of other criminal proceedings that he faced and the absence of
concerted efforts by the prosecution to compel the return of the €5 million which
they assert to be the proceeds of crime. These serious issues have notably not
been the subject of any disclosure by USKOK.

Mr Ježić’s status as an accomplice

4.51 As discussed at paragraph 4.11 above, any formal or de facto grant of immunity
to any accomplice witness must be disclosed by the prosecution. USKOK deny
that any deal has been reached with Mr Ježić: at the commencement of Mr
Ježić’s evidence on 4.2.2019, Dr Sanader personally requested that the Court
investigate whether any deal had been made between USKOK and him
regarding immunity from prosecution 156 . The USKOK representative orally
denied there was any deal:

“MARUŠIĆ: I’ll be very brief, there is no agreement with the witness Ježić,
there’s nothing; neither in regard to this specific case ... I think it was clear from
previous evidence presented also in previous proceedings, as well is in today’s
proceedings, the nature of Mr Ježić’s appearance before the Court and the
reason why he is a witness and not the defendant157”.

154 Save that in his first statement to USKOK Ježić stated “the bribe was not discussed until the lunch
at the Marcellino”, but this was later retracted.
155 MHT 17.10.2019, pg. 57.
156 Dr Sanader’s defence team had submitted in 2014 a written ‘Request for formal statement on Ježić’s

status’, the Court at the preliminary hearing ruled that a decision would be made after Mr Ježić had
been interrogated at the evidentiary hearing, PHM, 8.12.2014, pg. 8; see further detail of defence
submissions re. Mr Ježić as an accomplice, MHUT 14.6.2019 (part 1), pg. 23.
157 MHM 4.2.2019 pg. 4.

37
However, no formal statement has yet been provided or required by the Court.

4.52 In 2014, the Supreme Court, in its appellate decision in the first Sanader trial,
had confirmed that money had been “manipulated” by Mr Ježić: “The fact that
the money paid into the account of trading company Xenoplast & Shipping was
manipulated is not in dispute because witnesses Ježić and Hürlimann
confirmed it”.158 This finding in itself gives rise to the potential commission of
money laundering offences. In addition, on Mr Ježić’s account, the commission
he was proposing to take on the allegedly corrupt monies by way of up to 20%
costs, some €2 million159, raises further issues of money laundering160.

4.53 Mr Ježić’s potential implication in money laundering offences was explicitly


recognised by Judge Turudić in his first instance oral judgment. This did not
however cause the Judge to consider why Mr Ježić was not being prosecuted
for this matter alongside Dr Sanader, rather he considered that the
“persuasiveness of the testimony of witness Robert Ježić is especially backed
by the fact that he exposed himself to the criminal prosecution in a very visible
manner”:

“He said he knew he was doing things bordering on the law, but he still did
them under the influence of your great authority and the fact that you were the
PM. Thus, he exposed himself to the risk of the criminal prosecution, presenting
himself as a person that helped you to take the bribe and later, by manipulating
the money, which was agreed with you, he entered very dangerous and
criminal zones very close to activities of hiding illegally obtained money, that is,
money laundering161” (emphasis added).

4.54 If the witness was ‘exposed’ to criminal prosecution it can self-evidently only be
because he could have properly faced a criminal charge. The fact that Mr Ježić
was not so charged therefore requires a convincing explanation.

4.55 Mr Ježić himself considered that he was potentially implicated – and stated that
he had made his statement to USKOK in these proceedings because he
“thought it would be better to apologize than in any other way become public” 162.
At the hearing on 8.4.2019, Mr Ježić accepted that he knew that the money was
the “proceeds of crime” by the “middle of 2010” 163 . He stated that had
proceedings not been initiated by USKOK, he would have passed on the money
to Dr Sanader, even though he knew it was “bribe money” 164 . He said the
reason that he did not transfer the money to Dr Sanader immediately on receipt
was because it would have alerted the Swiss tax authorities and “caused many
problems”165. He further stated that he did not discuss with Mr Hürlimann that
the funds were the proceeds of crime because he did not “want to involve [his]

158 Supreme Court Croatia v Sanader, 3.4.2014, pg. 6.


159 See MHT 4.2.2019 at pg. 42, although Ježić denied that this sum represented a fee for him
personally and asserted that this sum was composed of taxes etc.
160 See also report of Sir David Calvert-Smith at para. 183.
161 First instance oral judgment pg. 9.
162 MHUT 4.2.2019, pg. 65.
163 MHT 8.4.2019, pg. 39.
164 MHT 8.4.2019, pg. 55.
165 MHT 11.4.2019, pg. 7.

38
tax consultant [in] it”: – “Precisely because he was not informed and because
he believed that those were proceeds of a normal business relationship, he
could, how to say, carry out his work more easily”166.

4.56 According to his evidence, Mr Ježić was held in custody in the HEP-Dioki
proceedings prior to giving his statement (see below). He stated that his lawyer,
Mr Hanžeković (who was a “friend” of Davor Štern, prosecution witness, see
below), told him that he would be released after “other witnesses were heard”
in April 2011. He stated that then articles started appearing in the press about
Cypriot companies that MOL had a connection with possibly buying up and
redeeming INA shares. He stated that he became concerned that if those
companies were further investigated, a link would be found to him, so his lawyer
advised him to make a statement before he was detected.

“JEŽIĆ: And so I decided, no, and then I had a discussion with Mr Hanžeković
and I explained all of this to him and his suggestion was that it would be much
better to, well, to say to release this rather than to wait and see what
happens167”.

4.57 Mr Ježić said that he agreed with his lawyer that he would give a statement on
his release from custody168. We have noted at paragraph 4.26 above that it
appears that undisclosed conversations were held with Mr Ježić before he gave
his official statement: but there has been no disclosure of any relevant material
concerning the circumstances in which Mr Ježić came to give his statement.

4.58 Furthermore, there has been no official statement regarding Mr Ježić’s status,
or explanation as to why he was not indicted in these proceedings alongside
the Defendants. It is difficult to imagine that some discussion regarding the
implications of making what was recognised to be an incriminating statement
would not have been had by a competent lawyer with USKOK before he
advised his client to make such a statement: Mr Ježić accepted that Mr
Hanžeković was in contact with USKOK after his release from custody (see
below).

4.59 The Panel Chair prohibited Mr Boyce QC from questioning Mr Ježić as to why
he had not been charged in these proceedings, on the grounds that the Director
of USKOK and Mr Ježić had already "testified" (“It was a long time ago, but it
has been asked”169).

4.60 At the hearing of 12.12.2019, the defence proposed to ask USKOK for official
data as to whether there is any agreement between USKOK and Mr Ježić. That
request was rejected by the Court as “irrelevant” (along with all the other
defence proposals for further evidence; see chapter 12 below), on the basis
that “it has also been established that Ježić does not have the status of an
immunised witness according to Article 289” [paragraph 4 of the CPC/09]170

166 MHT 11.4.2019, pg. 12.


167 MHUT 4.2.2019, pg. 64.
168 MHUT 4.2.2019, pg. 65.
169 MHUT 14.6.2019 (part 1), pg. 26.
170 Report of Davor Lazić 12.12.2019, Appendix 6.

39
(emphasis added). We are extremely concerned that this apparent
determination of a key issue took place before the defence case was presented
to the Court.

Mr Ježić’s other criminal proceedings

4.61 Further, at that time, Mr Ježić was facing on-going serious criminal
proceedings. On 9.12.2010, the same day that Dr Sanader fled the country, Mr
Ježić was arrested as a suspect in another corruption investigation conducted
by USKOK, also involving Dr Sanader, concerning unlawful payments between
HEP, the Croatian national power company, and Dioki. Mr Ježić was held in
investigative detention until 21.4.2011, on which date USKOK applied for his
release171.

4.62 According to his evidence in this trial, Mr Ježić’s passport was not returned to
him until after he was first interviewed by USKOK172. However, his evidence
before the UNCITRAL tribunal was that it had been returned prior to him giving
his statement. This was relied on by Croatia as enhancing his credibility
(“Moreover, Mr Ježić was released and authorized to leave the country before
he gave his testimony to USKOK …” 173 ). In the current proceedings, Mr
Hernádi’s lawyers were prevented from adducing the UNCITRAL transcript in
evidence174. The Court minutes record that the defence application for return of
Mr Ježić’s passport – to which USKOK consented – was granted on
21.4.2011175. Presumably there is an official record of when USKOK in fact
released Mr Ježić’s passport to him and as such this matter should be capable
of verification through access to the relevant file.

4.63 The HEP-Dioki investigation was still live when Mr Ježić gave evidence at Dr
Sanader’s first trial176, yet had not been resolved by the time he gave evidence
before the UNCITRAL Tribunal in 2016 (the Tribunal noted the proceedings had
“not progressed for some time”177). In fact, the HEP-Dioki proceedings were
only concluded in October 2018 when Mr Ježić and Dr Sanader were both
formally acquitted following the death of the third defendant, Ivan Mravak, who
in his role as the Chairman of HEP’s Management Board is alleged to have
granted Dioki/Mr Ježić a lower price for electricity, with Dr Sanader alleged to
have made the request on Mr Ježić’s behalf.

4.64 Indeed, the prosecution conceded that Mr Ježić “had been indicted by the State
Attorney for many criminal deeds ... and accused the entire time he was
interrogated by the court”178. Contrary to the prosecution’s assertion that this

171 Minutes of the hearing on investigative detention of Robert Ježić, 21.4.2011, pg. 1.
172 MHT 10.5.2019, pg. 10.
173 UNCITRAL Final Award, para. 300.
174 MHUT 14.6.2019 (part 1), pg. 2.
175 Minutes of the hearing on investigative detention of Robert Ježić, 21.4.2011, pg. 1…
176 The indictment against Mr Ježić, Dr Sanader and Mr Mravak was issued on 30.4.2013, no. KDO-

143/12.
177 UNCITRAL Final Award, para. 300.
178 MHUT 14.6.2019 (part 1), pg. 24.

40
made it “obvious that no agreement was made with him” 179 , criminal
proceedings that are live, that are not being progressed but that could be
resurrected at any time provide a clear inducement to give testimony that
favours the prosecution. It is noted that Mr Ježić was not prosecuted to a full
trial in respect of any of these “many criminal deeds”.

4.65 In addition to being arrested in relation to the HEP-Dioki matter, Mr Ježić was
also arrested in relation to the sale of land by Dioki to JANAF and in relation to
a case involving the purchase of a BMW car 180 . He was, however, never
indicted in relation to these. Judge Štampar Stipić did not permit Mr Boyce QC
to question Mr Ježić regarding whether this was part of a ‘deal’181.

4.66 The conviction of Mr Ježić himself for a serious corruption offence would
significantly reduce his value as a prosecution witness in these proceedings
and thus both parties had an interest in resolving the HEP-Dioki proceedings in
Mr Ježić’s favour – or at least not pursuing them with any vigour.

Link between Mr Ježić’s lawyer and a prosecution witness

4.67 On 20.5.2011, it was reported that Davor Štern, a former INA executive and
politician who, earlier that year, had been appointed Mr Šuker’s replacement as
the Chairman of INA’s Supervisory Board, in a “dispute over control” had filed
a request with the Ministry of the Economy that a committee be formed to
investigate the FASHA, and that he had privately hired a law firm to probe
MOL’s management practices, using the same lawyer, Mr Hanžeković (who he
described as a “friend” in court182), as was instructed by Mr Ježić. We note that
Mr Ježić’s other lawyer, Mr Pavasović, was Mr Štern’s son in law183.

4.68 On 25.5.2011, shortly after his release from detention and five days after Mr
Štern’s complaint was reported, Mr Ježić made an initial deposition to USKOK
on the advice of Mr Hanžeković. Mr Hürlimann made a statement on the same
day, during which Mr Ježić and, presumably, Mr Hanžeković were present (see
paragraphs 4.23 to 4.24 above).

4.69 Mr Hanžeković had a direct link with the substantive subject matter of these
criminal proceedings. He was instructed by Mr Štern (a prosecution witness) to
provide an opinion regarding whether INA’s corporate management post
FASHA was in compliance with Croatian company law (he advised it was
not)184. That opinion has formed part of the case file. He was reported to have
been instructed on 20.5.2011 and he provided the opinion on 26.5.2011, the
day Mr Ježić gave his first statement to USKOK.

179 MHUT 14.6.2019 (part 1), pg. 24.


180 MHUT 14.6.2019 (part 1), pg. 19.
181 MHUT 14.6.2019 (part 1), pp. 26-27.
182 MHUT 18.2.2019, pg. 3.
183 MHUT 14.6.2019 (part 1), pg. 38.
184 He had previously been Mr Marković’s unsuccessful rival in bidding for the Government contract to

advise in respect of the FASHA/GMA negotiations (Mr Dragić, MHUT 3.10.2019, pg. 5).
41
4.70 Seemingly, Mr Hanžeković (who is now deceased) did not disclose to his friend
Mr Štern his conflict of interest in simultaneously representing Mr Ježić, with
whom he had been discussing providing a statement to USKOK, as Mr Štern
gave evidence that he would not have instructed Mr Hanžeković to prepare an
opinion if he had known he was also instructed by Mr Ježić185.

Failure to recoup the €5 million

4.71 On 29.6.2009, Mr Ježić re-capitalised Dioki Holding using a loan from


Xenoplast of approximately €2 million (2.5 million Swiss francs), and re-
capitalised Xenoplast in the amount of 1 million Swiss francs (from initial capital
of 100,000 Swiss francs), a few weeks after the €5 million had been transferred
by Ceroma and Hangarn – Mr Ježić accepted that the re-capitalisation was
effected using “probably the same money”; Xenoplast loaned Dioki Holding a
further €4,567,608 by way of a subordinated loan (confirmation issued
28.9.2009)186. The loan to Dioki Holding was used to partially pay off its debts
to Hypo Bank “very shortly” after the re-capitalisation 187 . Following the
retrospective merger in June 2011 (and another loan from Xenoplast of €4.4
million on 31.12.2010), Dioki Holding assumed the assets of Xenoplast, thereby
cancelling its liability to Xenoplast for the €9 million loans. In June 2011, Dioki
Holding started to default on its payments to Hypo Bank, to which it owed
several millions of euros188.

4.72 It transpired when Mr Ježić was being questioned in this trial that documents
which he had omitted from a bundle of documents previously provided to the
Court showed that Dioki Holding had in fact loaned Mr Ježić personally
approximately €10 million (12.3 million Swiss francs) in 2009189. Mr Ježić said
Mr Hürlimann had made the decision to grant the loan or loans from Dioki
Holding190. Mr Hürlimann, however, was clear that he had no function within
Dioki Holding other than being its tax consultant, and that the “company” (of
which Mr Ježić was in “sole control” 191 ) had decided to grant the loan or
loans192. He confirmed that Mr Ježić had not returned any of the loan(s) to Dioki
Holding to date193.

4.73 At the time that Mr Ježić gave his statement to USKOK, Dioki Holding was in
considerable financial difficulty, as Mr Ježić was no longer able to benefit from
his connections within the Croatian government which prior to 2009 had
enabled the company to enjoy a certain flexibility regarding gas prices and

185 Davor Štern MHT 19.2.2016, pp. 3, 6.


186
The exact date in 2009 on which the loan was made is unknown. It was subordinated in line with a
'confirmation' dated 28.9.2009, see pg. 000671 of the Croatian case file.
187 MHT 11.4.2019, pg. 2.
188 MHT 11.4.2019, pg. 33.
189 MHT 13.6.2019, pg. 14 and see Share Purchase Agreement concluded between Robert Ježić and

FINCO SUISSE AG dated 2.6.2012 (case file pg. 11038ff), date of loan in 2009 not specified. Mr
Hürlimann stated that the loan had been made up of a number of payments over several years,
MHUT 14.11.2019, pg. 76.
190 MHUT 13.6.2019 (part 1), pg. 34.
191 MHUT 14.11.2019, pp. 17-18.
192 MHUT 14.11.2019, pp. 70-72.
193 MHUT 14.11.2019, pg. 77.

42
payment terms194. By late 2009, Dioki’s debt to INA amounted to approximately
$12 million and continued growing, reaching $18 million by May 2010. INA
started implementing measures to recover the debt and the matter became a
public dispute ventilated in the local press in which Mr Ježić accused INA’s new
management, i.e. MOL and Mr Hernádi, of protecting its Hungarian subsidiaries
and abusing its monopolistic position in Croatia195.

4.74 In July 2010, the two companies reached an agreement by which INA would
recover $14 million from Dioki and the remaining debt would be paid in several
instalments. Despite this agreement, Dioki failed to pay its debt to INA. Mr Ježić
tried to meet Mr Hernádi in Budapest in late September 2010 to discuss the
issue, but to no avail.

4.75 On 27.10.2010, USKOK requested that the Hungarian authorities interview Mr


Hernádi regarding the FASHA and GMA196.

4.76 On 27.6.2011, the month after Mr Ježić had given his statement to USKOK,
Xenoplast was retrospectively merged with Dioki Holding, with effect from
January 2011. INA tried again to obtain payment from Dioki in July 2011 and
continued to attempt to collect the debt until Dioki entered into bankruptcy
proceedings in November 2013197.

4.77 Mr Ježić was asked why he or Mr Hürlimann did not return the money in the
weeks that followed his realisation that it was bribe money:

“Well, the money is in the balance sheet and on the account of the company. To
return the money, there must be a suitable, formal, formal reason, a document,
which would justify the return of that money. And that was, and so it was agreed
with Mr Hanžeković, who was then the attorney and who how would I put it,
advised in relation to actions in that part198”.

4.78 Mr Ježić believed that his lawyer, Mr Hanžeković, had discussions with USKOK
with regard to returning the money (“Well Mr Hanžeković had as far as I know,
had some communication and I proceeded as he saw fit”) and asserted that his
intention was “absolutely” to return the money in April 2011199.

4.79 Asked what he did to return the money, Ježić said:

“Well all right, the legal team had communications where it was supposed to,
and on the other side I definitely organised within the framework of the
company also actions which were further, to definitely how should I say, put
together that am, that amount”.

194 See evidence of Mr Áldott, President of the Management Board of INA, given at the UNCITRAL
proceedings, cited in the UNCITRAL Final Award, para. 201 et seq.
195 R-087, R-088, R-089 in UNCITRAL proceedings, cited in the UNCITRAL Final Award at para. 202.
196 Joint chronology submitted by both parties to the UNCITRAL proceedings, cited in the UNCITRAL

Final Award at para. 303.


197 UNCITRAL Final Award, para. 204.
198 MHT 8.4.2019, pg. 44.
199 MHT 8.4.2019, pg. 44.

43
When asked to clarify, he continued:

“In which way, I meant I don’t know, pressure was put on some payments which
were due, something was being sold, some things were being concluded,
collected, I mean there was always some money on the account. And they
even, but of course they were, that’s the answer. And there was also, also there
was even talk of perhaps part of it also being paid before, before, before this”.

But he confirmed that he paid nothing, not even a partial re-payment, apparently
on the advice of Mr Hanžeković “who was obviously in conversation with I don’t
know who” and “said better not, it would be better to [pay] everything at once”200.
Mr Hürlimann had however petitioned the Swiss tax authorities on Mr Ježić’s
behalf for a tax refund of 500,000 Swiss francs once he had entered the liability
to Croatia of €5 million (he could not remember the outcome)201.

4.80 As noted at paragraph 4.76 above, on 27.6.2011, Xenoplast and Dioki Holding
signed a merger agreement, backdated to 1.1.2011. Mr Ježić asserted that Mr
Hürlimann was responsible for the decision to backdate the merger and that he
had no knowledge as to why it had been done retroactively, but he “had
absolute trust in Mr Hürlimann and Mr Hausheer as the legal controller of all
procedures” 202 . Mr Hürlimann gave evidence that Mr Ježić had made the
decision to effect the merger because “Xenoplast was not needed anymore” as
it had “ceased its business activities” and as Mr Ježić was the sole shareholder
in both companies it was “a simple solution to merge the two”203. At the hearing
on 12.12.2019, Mr Ježić insisted that he “really did not know” the reason for the
merger204.

4.81 Mr Ježić stated that he did not inform anyone at USKOK of the merger between
Xenoplast and Dioki Holding, and that their assets would be combined,
notwithstanding that the effect was that the company that USKOK had been told
the €5 million remained in the account of only a month previously would no longer
exist. He said it was his “supposition” that Mr Hanžeković had informed
USKOK205. Notwithstanding that the money was by now clearly alleged by Mr
Ježić to be the proceeds of crime, he proceeded with the merger, and three days
later granted Hypo Bank a priority claim over the assets 206 (although the €5
million had already been dissipated through transfer to the bank and in the huge
personal loan or loans to Mr Ježić himself; see paragraph 4.72 above).

4.82 Mr Ježić confirmed that he still had paid nothing207 and was currently unable to
do so, although he stated that he would have been able to pay most of it back
in March 2012 and all of it back in October 2012208. After the written judgment

200 MHT 8.4.2019, pg. 45.


201 MHUT 14.11.2019, pp. 78, 83.
202 MHT 8.4.2019, pg. 21.
203 MHUT 14.11.2019, pp. 30-33.
204 MHUT 12.12.2019, pg.133.
205 MHT 8.4.2019, pg. 47.
206 Through a subordination loan agreement dated 30.6.2011, see e.g. MHUT 14.11.2019, pp. 45-46.
207 MHT 8.4.2019, pg. 45.
208 MHT 11.4.2019, pp. 16-17.

44
in the first Sanader trial was issued on 20.11.2012, Mr Ježić publicly asserted
that he had deposited €5 million in shares with a law firm as a guarantee 209.

4.83 However, Mr Boyce QC demonstrated through analysis of Mr Ježić’s business


records that when he told the Court in October 2012 that he was “ready to pay
that amount within thirty days”, he already knew then that his plan for securing
those funds had fallen through – to which Mr Ježić was unable to offer an
answer210. He accepted that it was “possible” that some of €5 million “was used
in order to pay out parts or some part of, or rather secure this amount which
was given to [him] by Dioki Holding as a personal loan” 211 (referred to at
paragraph 4.72 above).

4.84 Mr Ježić asserted that he would be in a position to pay the money through
“receivables” – he stated that a company owed Dioki Holding €2 million but
refused to name it212. On being pressed, he said the “Italian company Adria Oil”
was in debt to Dioki – the company, when it was trading, was wholly owned by
Dioki d.d. (now bankrupt – formerly 76% owned by Dioki Holding) and it was
now in bankruptcy proceedings itself but Dioki Holding was the first creditor213.

4.85 At the hearing on 12.12.2019, the Panel Chair questioned Mr Ježić regarding
the current prospects of returning the €5 million to Croatia. Mr Ježić stated that
they were “undertaking all efforts to ensure this” (although production of his
bank accounts had earlier been refused). He elaborated that “last week we tried
to agree on this with the accounting, it is a matter of taxes”, the Panel Chair
asked what amount of taxes but Mr Ježić stated it was “hard to say. We are
discussing how to solve any remaining issues. We are trying to come up with a
decrease in taxes”214.

4.86 We note that Dioki Holding submitted an appeal against the order of Judge
Turudić in the first instance proceedings that it (as the successor of Xenoplast)
pay €5 million to the Court on the grounds that “at the time of the crime Ježić
was not authorised to represent Xenoplast a legal pre-decessor to Dioki
[Holding], nor was he the majority shareholder”. Mr Hürlimann confirmed that
this latter assertion, made in formal legal documents, was false215.

4.87 Mr Ježić’s benefit to the extent of €5 million of what USKOK assert is the
proceeds of crime raises a significant issue. When he gave his statement, Mr
Ježić told USKOK that the funds that he had been paid remained in Xenoplast’s
account. In fact, they had been loaned to his company, Dioki Holding, and paid
on to Hypo Bank and indeed to himself personally by the end of 2009. Dioki’s
debt to Xenoplast was transferred to Dioki Holding when Mr Ježić
retrospectively signed the merger of Xenoplast and Dioki Holding on 27.6.2011,

209 Vecernji list, “Ježić’s Guarantee in Shares Means Nothing to the Court”, 28.11.2012.
210 MHT 13.6.2019, pg. 9.
211 MHT 13.6.2019, pg. 15.
212 MHT 13.6.2019, pg. 24.
213 MHT 13.6.2019, pg. 26.
214 MHUT 12.12.2019, pp. 155-157.
215 MHUT 14.11.2019, pp. 12-14.

45
a month after he had given his statement to USKOK identifying it explicitly as
the proceeds of crime.

4.88 The failure of USKOK to take immediate steps to freeze assets asserted to be
the proceeds of the crime is surprising. Dioki Holding (and its predecessor
Xenoplast) is a Swiss-registered company but no request appears to have been
made to the competent Swiss authorities to ascertain and freeze the company’s
assets pending the outcome of the criminal proceedings. A belated request for
Mutual Legal Assistance was made by the public prosecutor to the Swiss
authorities in October 2014, in respect of freezing Dioki Holding’s assets to
enforce the order of the Zagreb County Court to pay €5 million, but it was
rejected by the Swiss authorities for reasons of formal non-compliance216. They
noted in their response that "[t]he assets have so far not been seized during the
judicial assistance process and no request was made to publish the related
bank documents which could serve as evidence in the requesting state. The
question thus arises as to what was used as a basis when preparing the paper
trail in order to find the assets.” We are unaware of any compliant request being
re-submitted.

4.89 In a recent interview, Judge Turudić suggested that the failure to obtain the
return of the money after his verdict convicting Dr Sanader was the
responsibility of USKOK:

“Within that year, the State Attorney’s Office was required to ensure the
enforcement of such EUR 5 million …. They failed to conduct it. Within that one
year, such five million were not returned to the state budget. Those are the
facts … There were difficulties because the money was in the Swiss accounts,
and they simply failed to do it. They failed … I do not know [why they failed], I
think the concrete question should be actually put to them”217.

Conclusion

4.90 We consider that it follows from the above that Mr Ježić (and Mr Hürlimann)
have been granted de facto immunity in these proceedings, in that they have
not been prosecuted but on their own account are guilty of serious offences.
Disclosure of contact between Mr Hanžeković (who acted on behalf of both
potential accomplices) and USKOK is essential for the Court to understand the
nature of the de facto immunity. The coincidence in timing of Mr Ježić’s release
from custody and the provision of his and Mr Hürlimann’s statements
implicating the Defendants (and the odd circumstances of the statements
themselves), and the unusual circumstances in which Mr Ježić had his passport
returned following his release from pre-trial detention, ought to have put any fair
tribunal on notice that full access to the case file was required.

4.91 The Court and defence needed access to the full facts, beyond a bare denial of
any deal and encompassing a detailed formal explanation of the reasons why
the HEP-Dioki proceedings were not progressed in eight years; why Mr Ježić
was released from custody; why his passport was returned to him when the

216 27.11.2014.
217 Transcript of N1 TV interview with Judge Turudić 4.3.2019, pp. 1-2.
46
proceedings were ongoing; what was the nature and source of the information
received by USKOK before they interviewed Mr Hürlimann; why he was present
during Mr Hürlimann’s statement but his and others’ presence is not recorded;
and the nature of all contact with Mr Hanžeković. Instead, the Panel Chair
prohibited Mr Hernádi’s counsel from questioning Mr Ježić as to whether there
had been any form of ‘deal’ (see paragraphs 4.59 and 4.60 above). Thus, the
Panel Chair appears to have pre-determined his status before even considering
the defence case or closing submissions on this key issue 218 (see further 12.5
below).

4.92 USKOK’s various failings appear to have allowed Mr Ježić to profit by €5 million.
The circumstances behind those failings ought to have been the subject of full
access to the case file (in the sense of disclosure of all relevant information)
and a statement of explanation provided by the responsible senior State
Attorney, so as to exclude any inference that USKOK’s failings were part of
some agreement with Mr Ježić in connection with the provision of his testimony.

4.93 We note that the Court neither had the benefit of any evidence219 regarding
USKOK’s internal decision-making, nor initiated further enquiry as to, for
example, the decision to treat Mr Ježić and Mr Hürlimann as witnesses and not
suspects, as discussed above, or decisions to seek some evidence (for
example, the Marcellino CCTV, discussed above) but not other evidence (for
example, financial documentation from Switzerland); early stage investigations
have not been recorded/disclosed, such as material revealing how USKOK first
came into possession of documents put to Mr Hürlimann. We consider that such
material would be relevant to an effective assessment of Mr Ježić’s credibility
as the key witness in the prosecution case.

4.94 We note and agree with the conclusion set out at paragraph 318 (see also
paragraphs 120 to 125) of the report of Sir David Calvert-Smith:

“In this case, there is no indication that there was any disclosure at all regarding
the status of Ježić and his contact with USKOK or any disclosure with regard
to the nature of the relationship between Ježić and Hürliman”.

4.95 We consider that that the investigative and disclosure failures identified above
would cause a reasonable person to have doubts as to whether USKOK has
discharged its prosecutorial duties of competence and impartiality in these
proceedings. The duty of disclosure of all relevant information must be adhered
to and if no disclosure has occurred in circumstances in which such material
clearly must have existed, then the safety of any conviction based on the
witness’s evidence must be in doubt. It is equally important that the prosecution
fully investigate all other lines of enquiry.

218 MHUT 12.12.2019, pg.171.


219 In the United Kingdom, this role is performed by the ‘Officer in the case’ who can be cross-examined
on prosecution decisions and actions. In Germany, the prosecutor/police can be called as witness,
proprio motu by the judge or at the request of the defence, and examined.

47
4.96 We do not have sufficient information to evaluate whether these failures are
due to a deliberate policy of partiality or to incompetence. However, on any
view, we are compelled to conclude that the conduct of the proceedings by
USKOK, based on inadequate investigation and inadequate access to the case
file, falls below the applicable standards set out at paragraphs 4.3 to 4.11
above.

48
5 INDEPENDENT AND IMPARTIAL TRIBUNAL

5.1 We consider at this interim stage that the requirement of an independent and
impartial tribunal is not satisfied by the Zagreb County Court, having regard to:

 Judge Turudić’s continued involvement in the proceedings,


notwithstanding the order of the Supreme Court, as President of the
County Court of Zagreb; and

 the conduct of the Trial Chamber itself.

5.2 We first recall the applicable international standards (paragraphs 5.3f), then set
out our interim conclusions in relation to Judge Turudić (paragraphs 5.12f) and
the Trial Chamber (paragraphs 5.66f).

Applicable international standards

5.3 All general universal and regional human rights instruments guarantee the right
to a fair hearing in judicial proceedings (criminal, civil, disciplinary and
administrative matters) before an independent and impartial court or tribunal220.
The UN Human Rights Committee has unequivocally stated that the right to be
tried by an independent and impartial tribunal “is an absolute right that may
suffer no exception”221.

UN Basic Principles and Bangalore Principles

5.4 The norms of international law are identified in the UN Basic Principles on the
Independence of the Judiciary (and further elucidated in various regional
instruments222), which require, at Principle 2, that “[t]he judiciary shall decide
matters before them impartially, on the basis of facts and in accordance with
the law, without any restrictions, improper influences, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or for any reason”.

5.5 The UN Principles are further strengthened by the Bangalore Principles of


Judicial Conduct, which themselves have been endorsed by several other
bodies223 and have been used as the basis for the national judicial conduct

220 e.g. The International Covenant on Civil and Political Rights (ICCPR) Art. 14(1); Art. 18(1)
International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families; Art. 8(1) American Convention on Human Rights; Art. 7(1) African Charter on Human
and Peoples’ Rights; Art. 75(4) of the First Protocol to the Geneva Conventions. See further ICJ
Practitioner Guide to Independence and Impartiality of Judges, Lawyers and Prosecutors, 2007, pg.
5ff.
221 M. Gonzalez del Río v Peru HRC Communication No. 263/1987 (views adopted 28.10.1992), para.

5.2.
222 See also: Council of Europe, Recommendation No. R (94) 12 of the Committee of Ministers to

Member States on the Independence, Efficiency and Role of Judges, 13.10.1994: Resolution on
Respect and strengthening Independence of the Judiciary adopted in April 1996 at 19 th session of
the African Commission on Human and People’s Rights; the Beijing Statement of Principles of the
Independence of the Judiciary in the LAWASIA Region (the Beijing Principles) and the Universal
Charter of the Judge, approved by the International Association of Judges (IAJ) on 17.11.1999.
223 The Bangalore Principles have been endorsed by the UN Human Rights Commission (59th session,

April 2003), the UN Social and Economic Council (Resolution 2006/23: ‘Strengthening Basic
49
guidance of many countries. The Principles require (inter alia) that judges be
free, and appear to a reasonable observer to be free, from inappropriate
connections with, and influence by, the executive and legislative branches of
government (paragraph 1.3) and exhibit and promote high standards of judicial
conduct in order to reinforce public confidence in the judiciary, which is
fundamental to the maintenance of judicial independence (paragraph 1.6).

5.6 The Bangalore Principles also emphasise that impartiality “is essential to the
proper discharge of the judicial office” and that it “applies not only to the decision
itself but also to the process by which the decision is made”. They state that a
judge must perform his or her judicial duties without favour, bias or prejudice
(paragraph 2.1); ensure that his or her conduct, both in and out of court,
maintains and enhances the confidence of the public, the legal profession and
litigants in the impartiality of the judge and of the judiciary (paragraph 2.2); and
disqualify himself or herself from participating in any proceedings in which he
or she is unable to decide the matter impartially or in which it may appear to a
reasonable observer that he or she is unable to decide the matter impartially
(paragraph 2.5).

ECtHR jurisprudence

5.7 The ECtHR has observed that “first and foremost, it is of fundamental
importance in a democratic society that the courts inspire confidence in the
public and above all, as far as criminal proceedings are concerned, in the
accused”224. To that end, Article 6 requires that a tribunal falling within its scope
be impartial. Impartiality normally denotes absence of prejudice or bias 225.

5.8 The Court has distinguished between a subjective approach, that is


endeavouring to ascertain the personal conviction or interest of a given judge
in a particular case, and an objective approach, that is determining whether he
or she offered sufficient guarantees to exclude any legitimate doubt in this
respect 226 . Misgivings regarding both aspects may be present in any given
case, since the conduct of a judge may not only prompt objectively held
misgivings as to impartiality from the point of view of the external observer
(objective test), but may also go to the issue of his or her personal conviction
(subjective test) (see Kyprianou v Cyprus [GC]). A key principle of the
requirement of independence and impartiality is not only that the tribunal has
those qualities, but that it also gives the appearance of having those qualities.

“Under the principle of equality of arms … each party must be afforded a


reasonable opportunity to present his case under conditions that do not place
him at a disadvantage vis-à-vis his opponent. ... In this context, importance is

Principles of Judicial Conduct’) and the UN Office on Drugs and Crime (‘Commentary on the
Bangalore Principles of Judicial Conduct’, September 2007) and numerous other international
bodies.
224 Padovani v Italy, 26 February 1993, Series A no. 257, § 27.
225 See e.g. Schwarzenberger v Germany, 10 August 2006, no. 75737/01, para. 38.
226
See Piersack v Belgium, 1 October 1982, § 30, Series A no. 53, and Grieves v the United Kingdom
[GC], no. 57067/00, § 69, ECHR 2003-XII.
50
attached to appearances as well as to the increased sensitivity to the fair
administration of justice ...”227.

5.9 The ECtHR has held that “judicial authorities are required to exercise maximum
discretion with regard to the cases with which they deal in order to preserve
their image as impartial judges. That discretion should dissuade them from
making use of the press, even when provoked. It is the higher demands of
justice and the elevated nature of judicial office which impose that duty” 228.
Thus, where a court president publicly used expressions which implied that he
had already formed an unfavourable view of the applicant’s case before
presiding over the court that had to decide it, his statements were such as to
justify objectively the accused’s fears as to his impartiality 229. In another case,
public criticism of the defence by the judge was considered by the Court to be
a violation of the subjective requirement of impartiality230.

5.10 The jurisprudence of the ECtHR identifies that in order to establish whether a
body can be considered independent, regard must be had, inter alia, to the
manner of appointment of its members and to their term of office, to the
existence of guarantees against outside pressures and to the question whether
the body presents an appearance of independence 231 . In the view of the
UNHRC, it is the obligation of the court to consider of its own initiative whether
grounds for the disqualification of a judge have been made out pursuant to
domestic law and to replace members of the court falling under the
disqualification criteria232.

5.11 The ECtHR has further held that a judge arranging to have a case assigned to
himself or herself for personal reasons would be capable of amounting to a
breach of the subjective requirement of impartiality 233 . Furthermore, the
impartiality of the tribunal must be assessed by the extent to which it has
ensured the defendant’s fair trial rights are observed. Thus the court, by its
conduct, must ensure that that the guarantee in Article 6(3)(b) of “adequate time
and facilities for the preparation of [an accused’s] defence” provides the
accused with the opportunity to “organise his defence in an appropriate way
and without restriction as to the ability to put all relevant defence arguments
before the trial court and thus to influence the outcome of the proceedings”.
Substantive defence activity on the defendant’s behalf may comprise
everything which is “necessary” to prepare the main trial (Gregačević v
Croatia234).

227 No. 73797/01, ECtHR 15.12.2005, § 119.


228 see Buscemi v Italy, no. 29569/95, § 67, ECHR 1999-VI, cited in Olujic v Croatia at [59]
229 Buscemi v Italy, above, § 68.
230 Lavents v Latvia, no. 58442/00, 28.11.2002, §§ 118 and 119.
231 See, inter alia, Langborger v Sweden, 22.6.1989, § 32, Series A no. 155, and Bryan v the United

Kingdom, 22.11.1995, § 37, Series A no. 335.


232 HRC, Arvo O. Karttunen v Finland, Communication 387/1989, para. 7.2.
233 See De Cubber v Belgium, 26 October 1984, § 25.
234 Application no. 58331/09 10.7.2012, para. 51. See also Mayzit v Russia, no. 63378/00, § 78,

20.1.2005; Connolly v UK (dec.), no. 27245/95, 26.6.1996; Can v Austria, no. 9300/81,
Commission’s report of 12.7.1984, Series A no. 96, § 53 (judg. of 30.9.1985); and Moiseyev v
Russia, no. 62936/00, 9.10.2008, § 220.
51
Role of Judge Turudić: general

Political context of the case

5.12 The subject matter of the alleged bribery agreement was a highly political issue
involving the transfer of ownership of Croatia’s most important company and a
“vital economic interest” to a foreign entity. This is well illustrated by the
comments made by Judge Turudić in the judgment at first instance, and by the
judgment of the Constitutional Court235.

5.13 The conviction of the Defendants is closely allied to the national interests of the
Croatian state. Croatia had sought to argue in the UNCITRAL proceedings that
the bribery agreement vitiated the transfer of ownership of INA and enabled
them to regain control of the €4.4 billion company. This was rejected by the
Tribunal, which cleared MOL of Croatia’s bribery allegations and dismissed all
claims brought against it. During the first trial, its outcome was recognised in
the press as central to the Croatian Government’s prospects of succeeding in
the highly charged political negotiations with Hungary over control of INA236.

5.14 The importance of INA to Croatian national interests was the subject of
evidence before the current Trial Panel (see evidence of Davor Štern in
response to a question from the Court that “INA is most important business in
Croatia”237; and the evidence of Davor Mayer that “INA is a strategic business
for Croatia as energy is the only industry Croatia has left, apart from possibly
food”238; “our opinion is that interests of the Republic of Croatia do not deviate
from the interests of INA”239).

5.15 The outcome of the trial remains an issue of the highest public and political
importance – see for instance the relevance identified in the press to the 2020
presidential elections240.

5.16 Given the impact that a conviction of these Defendants would have on the
national interests of the Republic of Croatia economically and upon the internal
political environment, it was incumbent on the Croatian judicial system to
ensure that the requirements of an independent and impartial tribunal were
scrupulously observed. In order to fulfil this obligation, particular consideration
should have been given as to how the requirement of ‘independence’ would be
protected in the circumstances and great care taken in the selection of tribunal
members; in particular ensuring that the tribunal conducting the retrial was not

235 Examples cited by the Constitutional Court at paras. 376 and 381.
236 Jutarnji List, 3.8.2013.
237 MHUT, 19.2.19, pg. 7.
238 MHUT 19.2.19, pg. 11
239 MHUT 19.2.19, pg. 10.
240 Nacional 19.3.2019. See also report of Sir David Calvert-Smith at para. 278 and Appendix II

regarding internal political benefit (paras. 123, 146); Freedom House report 2013 “EU pressure to
prosecute high level corruption has been notable”; and reference to WikiLeaks documents that
suggest State Prosecutor Bajić regularly reported on the progress of the Sanader case to the local
United States embassy (2013 Freedom House Report, pg. 182, cited DC-S, App II, para. 153) – see
also 2017 US State Department Croatia Human Rights Report which makes specific reference to
commencement of Sanader retrial under ‘corruption’ section.
52
tainted by any allegations of bias arising from Judge Turudić’s conduct of the
first trial.

Criticisms of Judge Turudić

5.17 The Constitutional Court found that Judge Turudić had constitutionally usurped
the role of the executive (“the democratic Croatian State”) by purporting to
determine what was in the Croatian national interest241.

5.18 Judge Turudić publicly identified that he disagreed with the decision of the
Constitutional Court (see statements to the press on 29.7.2015 and 2.8.2015,
also more recently on 4.3.2019) – and publicly disparaged the Constitutional
Court generally (“The Constitutional Court is by definition a court that is not a
court. It is an inter-power. They sometimes leave the impression that they are
a super-power, that they are above the power … It is clearly evident [they have
acted beyond their powers in some cases]. They are indeed a political court”)
and specifically in respect to the Sanader judgment, accusing the Constitutional
Court of having acted as a trial court242.

5.19 Further, Judge Turudić accused the Constitutional Court of having improperly
leaked its decision to quash the verdict to German MEPs and the media a
month before it was made public, and shortly after the hearing had taken place
(“That is scandalous, if it happened to the County Court they would have
ordered us to self-immolate ourselves on the main square”243).

5.20 The Judge gave the appearance of being personally and publicly allied with the
correctness of the original conviction, and repeatedly asserted that he intended
to preside over the re-trial244.

5.21 In its decision quashing Dr Sanader’s conviction, the Constitutional Court


identified the need for the proceedings “to be repeated before a different court
chamber” 245 . Notwithstanding this, in the subsequent weeks Judge Turudić
continued to assert publicly that he intended to preside over the retrial
(dismissing the order of the Constitutional Court by stating “we are still not
required to read the hidden thoughts and suggestions of the Constitutional
Court”246). He claimed, however, that he personally had not made the decision
that he would conduct the retrial: “it was a normal decision made according to
the law”247.

5.22 The UNCITRAL Tribunal noted that it was a “fair inference from what the Judge
said in his interview that he was minded to make the same decision as before

241 Constitutional Court judgment 24.7.2015, para. 380.


242 Interview of Ivan Turudić by Marinko Jurasić, Vecernji List 29.7.2015, pg. 1 of translation.
243 Interview of Ivan Turudić by Marinko Jurasić, Vecernji List 29.7.2015, pg. 2 of translation.
244 See e.g. interview on Dnevnik evening news on national TV, 2.8.2015, pg. 2 of translation of

transcript and interview by Marinko Jurasić, Vecernji List 29.7.2015, pg. 1 of translation.
245 At para. 449.
246 Interview by Marinko Jurasić, Vecernji List 29.7.2015, pg. 2 of translation.
247 “Asked whether he was the one who made the decision that he will personally preside over the

retrial, Turudić answered that he did not and that it was a normal decision made according to the
law”. (Total Croatia News 25.8.2015).
53
if he presided over the retrial”. The Tribunal considered Judge Turudić’s
conduct in the context of his “obvious bias at the trial”. It noted that in these
press interviews he made it quite clear that he disagreed with the decision of
the Constitutional Court and intended to hear the retrial himself, and indicated
that if he was the Chairman of a Tribunal “then transcripts on the presentation
of evidence may be read out without the consent of parties”. The Tribunal found
it was “regrettable that the Judge decided to discuss these issues in the public
domain”248.

5.23 Bias on the part of Judge Turudić was also found to have been evident by Sir
David Calvert-Smith in his report on the first trial. He identified the conflation by
the Judge of the prosecution and defence with the two main national groups
involved (Croatian and Hungarian). The Judge’s dismissal of Dr Sanader’s
claim that it is better for INA to be run by competent Hungarian managers than
incompetent Croatian ones as “truly blasphemous” due to the implications for
his “patriotism”, and his view that INA had been “reduced to a subsidiary” of
MOL, were, in the view of Sir David, “more suggestive of an assessment based
on a personal view of national considerations than an unbiased and judicious
assessment of commercial benefit”249. He further noted that comments within
the sentencing remarks and derisory comments made about Dr Sanader’s
defence throughout the oral judgment “create the impression of an emotional
response to the case motivated by political and national considerations rather
than a forensic analysis of the evidence”250.

5.24 Professor Eeckhout also considered that it was “clear and established that the
Croatian criminal prosecution involving former Prime Minister Dr Sanader, and
by implication Mr Hernádi, has been characterised by serious judicial bias”251.

5.25 At a preliminary hearing on 7.9.2015, Dr Sanader’s lawyers requested the


recusal of Judge Turudić as President of the Trial Chamber and as President
of the County Court and of his deputy in these proceedings.

5.26 A week later, Judge Turudić asserted on national television that he intended to
conduct the preliminary hearing of the retrial that would start the following
month. It was put to him during this interview that the journalist knew that the
reason why he was so confident that he would preside over the retrial
notwithstanding the motion to recuse him was because he would choose the
judge that would decide the motion – somewhat surprisingly, Judge Turudić did
not take the opportunity to refute this accusation, merely responding “I am not
certain of anything, but I have the right to believe there is no reason for this” 252.

248 UNCITRAL Final Award 23.12.2016 para. 138, pg. 47.


249 At para. 281.
250 At para. 282.
251 Second report of Professor Eeckhout, 11.1.2019, para. 99.
252 Interview of Judge Turudić on Dnevnik, National Television Evening News, 2.8.2015, pg. 2 of

translation of transcript.
54
5.27 As noted at paragraph 5.11 above, the ECtHR has held that a judge arranging
to have a case assigned to himself or herself for personal reasons would be
capable of amounting to a breach of the subjective requirement of impartiality.

5.28 Judge Turudić contested the defence application for his recusal from the trial
as “unfounded” at the Supreme Court. On 24.9.2015, the Supreme Court
disqualified both Judge Turudić and his deputy President, Dražen Jakovina,
from sitting as the Trial Chamber and also from sitting as President of the
Zagreb County Court in these proceedings253.

5.29 Even before the first trial, Judge Turudić issued a public statement on behalf of
the Croatian Judges Association impugning the integrity of statements made by
Dr Sanader, while a sitting politician, concerning political motivations of judicial
actions:

“[T]his is not the first time that Sanader had linked the work of courts and judges
in concrete cases with political consequences of certain judicial decision,
criticising the judicial authority of taking political sides and making decisions
following political orders”254.

5.30 The importance of such a high profile and politically important case to Judge
Turudić’s professional ambitions have been noted255. Judge Turudić confirmed
that he would “apply to be President of the High Criminal Court if the State
Judicial Council elect [him] to that court”256 and it appears from recent press
coverage257 that he has now been elected to the Court. We had understood
that the newly created High Criminal Court would be the appeal court in these
proceedings. However on 17.12.2019 the Constitutional Court suspended the
introduction of the Court (which was to have commenced operation in January
next year) in order to analyse its constitutionality258. It is currently unclear which
court will have appellate jurisdiction following delivery of the written judgment.

5.31 The significance of a conviction in this trial and Judge Turudić’s association with
that conviction259 is amply demonstrated by the serious recent findings made
by the Supreme Court in respect of Judge Turudić’s influence over the entirety
of judiciary sitting at the Zagreb County Court. Apparent hostility generated
between Judge Turudić and the President of the Constitutional Court as a result
of the Constitutional Court overturning the Sanader verdict led to accusations
of bias against Judge Turudić from the President, in his capacity as a private
litigant, in respect of a matter that had been before the Zagreb County Court.

253 Supreme Court decision IV-373/15-6, 24.9.2015.


254 https://www.tportal.hr/vijesti/clanak/judges-association-condemn-sanader-s-accusations-against-
judge-turudic-20101106/print 6.11.2010.
255 Jutarnji list, 3.8.2013.
256 Jutarnji list, 7.4.2019, pg. 7.
257 https://dnevnik.hr/vijesti/hrvatska/ustavni-sud-stopirao-je-pocetak-rada-visokog-kaznenog-suda---
587367.html.
258 https://dnevnik.hr/vijesti/hrvatska/ustavni-sud-stopirao-je-pocetak-rada-visokog-kaznenog-suda---
587367.html
259 Total Croatia News, 25.8.2015.

55
5.32 In current private litigation, the President of the highest Croatian Court, Miroslav
Šeparović, instructed his lawyers to argue that Judge Turudić’s personal
animosity towards him arising from him performing his work as President of the
Constitutional Court resulted in Judge Turudić manipulating judicial outcomes
in the Zagreb County Court (in respect of decision which he did not sit) for
personal ends. This is an accusation of the highest seriousness, amounting to
what in UK and German260 law would be considered the criminal offence of
perverting the course of justice, and under Croatian law, potentially the offence
of ‘Abuse of office and Official authority’ contrary to Article 291 of the CC.

5.33 In a decision reported by the press on 23.3.2019 (see Appendix 7; at the time
of writing the judgment had yet to be made publicly available), the Supreme
Court agreed to Mr Šeparović’s request to transfer the case outside the Zagreb
County Court’s jurisdiction. His lawyer was reported as stating that the reasons
for the application were “a matter of personal relations between the private
plaintiff Miroslav Šeparović and president of the Zagreb County Court Ivan
Turudić, whose court is competent for making a decision on the appeal”. The
lawyer was asked to explain which personal relations she was referring to, but
she refused to answer, adding that she “[did] not want to open Pandora’s
box”261.

5.34 Judge Turudić himself recently attributed the personal animosity between the
judges to the Constitutional Court’s decision in respect of the Sanader
proceedings: “For years we have cherished very good relationships. First
cracks therein started appearing with the decision of the Constitutional court in
the matter of the former prime minister Mr Ivo Sanader concerning the INA-
MOL case”. In the same interview, he explicitly maintained that the decision of
the Constitutional Court was flawed: “… also today I claim that that decision is
flawed, what is easy to demonstrate. This has recently been demonstrated by
professor Zlata Đurđević262 and professor Ivo Josipović in their scientific papers
for a seminar in Opatija … The Constitutional Court acted contrary to the
Constitutional Act on the Constitutional Court so as to have gone to such great
lengths in elaborating, whether a prime minister is an official or maybe not.
Furthermore, the then judge of the Constitutional Court and the current
president of the Constitutional Court … was Mr Ivo Sanader’s attorney”263.

5.35 It is of particular significance that Judge Turudić did not sit on the previous
appeal which had been allowed by the Zagreb County Court. However, by its
decision the Supreme Court has seemingly accepted that Judge Turudić’s
influence over the whole of the Zagreb County Court is such that any bias on
his behalf potentially contaminates all the judicial members of the Court over
which he presides.

260 ‘Rechtsbeugung’, sect. 339 StGB.


261 Jutarnji List, 23.3.2019.
262 Professor Đurđević was one of Croatia's expert witnesses in both the ICSID and the UNCITRAL

arbitrations.
263 Jutarnji list, 7.4.2019, pp. 2-3.

56
5.36 Given this judicial recognition, which must apply in even greater strength to the
retrial itself, the fact that these defendants were tried at the Court over which
Judge Turudić presides raises serious questions as to whether the Defendants
could ever have been tried, in Zagreb, by a tribunal which satisfied international
standards of independence and impartiality.

5.37 Other proceedings have also been transferred from Zagreb County Court due
to Judge Turudić’s perceived influence on the entirety of the Court: all cases
(and recent investigations) against Judge Turudić’s close associate Zdravko
Mamić (sentenced for 6.5 years’ imprisonment in Croatia, now a fugitive in
Bosnia and Herzegovina) were tried before the Osijek County Court “in order
to strengthen confidence in the judiciary and avoid any possible suspicion of
bias in the treatment of the judges of the Zagreb County Court”, according to
the Supreme Court order 264 . Subsequently, according to the letter sent by
Judge Turudić to Croatian President Kolinda Grabar-Kitarović, Judge Turudić
withdrew his candidacy for the position of the President of the Supreme Court
because of the pressure he has been exposed to by his acquaintance with
Zdravko Mamić265.

5.38 There appears to be a significant breakdown in mutual respect and trust within
the senior levels of the Croatian judiciary and multiple allegations have been
levelled against Judge Turudić by his fellow judges – and by him at them, much
of which he chooses to communicate through interviews with the press. The
serious allegations against the Zagreb County Court and Judge Turudić made
by the President of the Constitutional Court, and seemingly accepted by the
Supreme Court, are outlined above. Judge Turudić responded to the Supreme
Court’s judgment by publicly accusing the President of the highest Court in the
Croatia of having used his influence to obtain a favourable verdict as a private
litigant266.

5.39 Judge Turudić publicly accused the President of the Constitutional Court of
lying, and the Supreme Court of “condoning untruths” (“the President of the
Constitutional Court, Mr Miroslav Šeparović, whom I had considered a friend,

264 https://www.tportal.hr/vijesti/clanak/mamic-zbog-turudica-i-treci-put-dobio-pravosudni-progon-u-
osijek-foto-2018012;
https://www.scribd.com/doc/310489296/310483409-Rje%C5%A1enje-Vrhovnog-
Suda#fullscreen&from_embed.
265 https://lider.media/aktualno/biznis-i-politika/hrvatska/turudic-odustao-od-kandidature-zbog-hajke-
poznanstva-s-notornim-mamicem/.
266 “‘This is, in fact, a request for my removal and not a delegation of jurisdiction due to alleged cost-

effectiveness of the criminal procedure. The applicant obviously thinks that it is more cost-effective
to conduct the procedure in a way in which a verdict he desires is handed out. This proposal is based
on untruth because I have not ordered to anyone to make a certain decision, but colleagues who
worked on the case spotted a series of substantial violations of the law and annulled the verdict of
the court of first instance. But, ask Separovic whether he called someone at the County Court and
requested something relating to the case,’ Turudić said. ‘Question is whether such a proposal would
have been accepted if someone else and not the mighty head of the Constitutional Court of the
Republic of Croatia had requested the delegation. Not very likely’” (Jutarnji List, 23.3.2019).
57
lied in to my face. I don’t talk to him anymore”; “The Supreme Court condoned
untruths which were stated in the application by Mr Šeparović”267).

5.40 Accusations involving Judge Turudić concerning procedural irregularities,


nepotism, bias, politicisation and lack of transparency appear frequently in the
local press268, and in private litigation between judges269. Judge Turudić himself
has regularly made public statements criticising the motivation of Government
actions and suggesting high-ranking misconduct270.

5.41 Such statements raise issues of bias, given the heavily political context of the
proceedings and issues about the separation of powers. This is also evident in
Judge Turudić’s constitutional error, identified by the Constitutional Court, in
purporting to determine political issues. We note that the public perception in
Croatia of the independence of the judiciary was recently surveyed as the
lowest among EU Member States, with the highest percentage who consider
that independence is compromised by political pressure from government
(60%) and by pressure from economic interests (55%)271.

5.42 Criticism in the press of Judge Turudić’s public statements concerning high-
ranking state officials have resulted in harsh outcomes for the journalists
involved, which may be experienced as a deterrent to the proper functioning of
a free press, recognised as the cornerstone of democracy. As a result of an
article that was critical of Judge Turudić, published on 27.11.2014, he
successfully sued journalist Dražen Ciglenacki and Novi List newspaper for libel
and received 90,000 kuna (approximately €12,000) (see second-degree
judgment of the Varazdin County Court) 272 . The criminal proceedings for
defamation against the same journalist regarding this article continue at the
time of writing273.

5.43 Judge Turudić has resisted his recusal from other cases where his impartiality
has been challenged, for example because he was a participant in the specific
military conflict that formed the subject matter of the indictment.274 As noted

267 Jutarnji list, 7.4.2019, pg. 1.


268 See e.g. Hrvatski Laburisti, 7.2.2011 https://laburisti.com/news-in-english/are-the-new-judges-in-
croatia-appointed-against-the-law/ and Jutarnji.eu, 14.1.2019.
269 Litigation of Judge Mittermayer, as reported in Objektiv (“Lens”), 16.7.2012 (Appendix 7).
270 https://balkaninsight.com/2015/12/03/judge-s-libel-victory-shocks-croatian-journalists-12-02-
2015/?nocache=1.
271 2018 ‘EU Justice Scoreboard’ pp. 41-42 – Croatia was also amongst the worst rating for perception

by businesses. See also DC-S report regarding quality of Croatian judiciary generally, paras. 271ff
and Appendix II; US Country Report 2017 regarding corruption of judges in the Commercial Court
272 Reported Novi list, 3.12.2015.
273 Before the Rijeka Municipal Court.
274 “Veljko Stjepanović, a former policeman in the breakaway Serbian statelet, the RSK, who asked for

Turudić to be recused from presiding over his case as he lacked impartiality. As he had fought in
Croatian army during the war of 1991-5 between Croatian forces and rebel Croatian Serbs and JNA
and had been a member of the 127th brigade from Virovitica, which fought in the region of Djulovac,
where the war crimes of which Stjepanović is accused took place – cannot be impartial [sic] about
the crimes committed in that area. “During these operations, the 127th brigade lost 17 members,”
VS’s lawyer noted that Turudić had previously supported protests staged by Croatian war veterans
in front of the War Veterans’ Ministry in Zagreb. Additionally, in 2015 Turudić proposed that the new
criminal code should penalise anyone denying the defensive character of Croatia’s war of
58
above at paragraph 5.10, it is incumbent on the Court to act of its own motion
if there are grounds for disqualification.

5.44 We further note by way of context that challenges to Judge Turudić’s suitability
to sit as a judge were also made by MPs in the Croatian Parliament and in the
press275 following his recent conviction for speeding276, his failure to respond to
four summonses from the Court to attend the trial (which he claimed not to have
received)277, and the earlier conclusion of the Court “that the defendant was
clearly avoiding the receipt of the subpoena”278.

Role of Judge Turudić: these proceedings

5.45 In addition to the concerns outlined above about Judge Turudić’s handling of
the first trial and his role more generally in the Zagreb County Court, Judge
Turudić has, notwithstanding the clear ruling of the Supreme Court in 2015,
continued to play a formal and informal role in the proceedings that are the
subject of this Interim Report.

5.46 Since the public statements that Judge Turudić made at the time of
Constitutional Court’s decision, undermining the decision and implying it was
wrong (referred to at paragraphs 5.18 to 5.19 above), he has continued to make
statements to the press during the currency of these trial proceedings that
undermine the decision and has expressed views on substantive trial
decisions 279 . There has been no public acknowledgement by him that his
approach to the offence and the evidence was held to be fundamentally wrong,
nor to the criticism made by the Constitutional Court of the fact he failed to refer
in his judgment to any evidence as to how, when or where the bribe agreement
had been made. There is therefore no reason to believe that the issue of bias
through his involvement in the proceedings remains anything but live.

Substantive trial issues

5.47 In Judge Turudić’s statements to the press, he has expressed views on


substantive trial issues, which given his hierarchically superior position to the

independence, including the 1995 operation “Storm” that terminated the Serb mini-state, the RSK”.
(Balkan Insight.com, Sven Milekić, Zagreb, 26.5.2017) https://balkaninsight.com/2017/05/26/serb-
paramilitary-claims-zagreb-judge-not-impartial-05-26-2017/.
275 See e.g. telegram.hr “Can Judge Turudić remain a judge after this?”, 28.8.2019
https://www.telegram.hr/politika-kriminal/moze-li-sudac-turudic-nakon-ovoga-ostati-sudac-vozio-je-
prebrzo-nije-se-zaustavio-policiji-i-nije-dolazio-na-rocista/ and index.hr article above.
276 Bjelovar Municipal Court judgment P-123112019-28, 20.8.2019.
277 “Turudić claimed that the Post Office had not delivered any of the four summonses to attend court:

‘There were no announcements in the mailbox’. The Croatian Post Office responded by claiming
that Turudić did not pick up the shipments even though the notice was left in the mailbox. The
postman tried to bring it to the address and, after the recipient had not been found there, a notification
of the arrival of the shipment was left. ‘The consignee did not pick up the shipment at the post office
within five business days, and it was returned to the sender’, the Croatian Post explained – reported
by index.hr, “Should Ivan Turudić remain a judge after all?”, 27.8.2019
https://www.index.hr/vijesti/clanak/treba-li-ivan-turudic-nakon-svega-ostati-sudac/2119628.aspx
278 Bjelovar Municipal Court judgment P-123112019-28, 20.8.2019, pg. 1.
279 See recent press comments 4.3.2019 implying that the Constitutional Court’s approach to the issue

of an ‘official person’ was absurd.


59
trial judge, is improper. In an interview with the press on 4.3.2019, Judge
Turudić stated:

“[The limitation period] is not so close, as can be heard in some media. Such
period is significantly longer because the case was in Luxembourg on the basis
of the reference for a preliminary ruling. During the time the case had been
there, the proceedings had been suspended and the limitation period had not
been running. Moreover, if a final judgment of first instance will be rendered,
the limitation period will be extended by two additional years. Therefore, there
are still several years before the case becomes barred by the statute of
limitations”280.

5.48 The issue of when the limitation period expires will need to be adjudicated upon
by the Trial Court if it is raised by the defence – and it formed the justification
for the Trial Court’s decision to impose an ex officio lawyer (see below). Judge
Turudić also considered it appropriate to comment on that decision,
notwithstanding that the defence had yet to be provided with any opportunity to
address the Court on why such a lawyer ought not to be appointed. He
observed “I reckon there is no risk of this particular case being statute-barred,
but we shall see what will come out of it. Everything has to be done in order to
prevent the case from being statute-barred”281.

5.49 Judge Turudić’s comments regarding limitation represent a particular


interference with the remit of the Trial Court given that it was he who initiated
the reference to the CJEU, discussed below, triggering a suspension of
proceedings that was twice held to be unlawful, which he asserts stops the
limitation period from running.

5.50 The issuing of public statements to the press concerning current trial
proceedings by the President of the Court of the Trial Chamber represents a
serious interference with fundamental fair trial rights. In 2014, the Croatian Bar
Association HOK publicly condemned any commentary on first instance court
decisions, stressing that it can be interpreted as a pressure on the Trial Court,
and further that it is contrary to the Croatian Constitution282. The view of the
HOK reflects the jurisprudence of the ECtHR summarised at paragraphs 5.8 to
5.9 above.

Procedural and trial management decisions

5.51 Further, Judge Turudić has continued to involve himself formally and informally
with procedural and trial management decisions. On 16.10.2017, he presided
over the three-member Panel of Zagreb County Court which took the decision
to separate these proceedings from the Hypo B.ank indictment faced by Dr

280 Transcript of N1 TV interview with Judge Turudić, 4.3.2019, pg. 2.


281 Judge Turudić interview with Express magazine 15.3.2019 – see also recent comments on N1 TV
(on “Novi Dan”/“New Day” daily morning show), 15.7.2019.
282 “No one, neither executive or legislative authority nor attorneys, should publicly comment on

unenforceable judicial decisions”, https://dnevnik.hr/vijesti/hrvatska/hok-osudio-komentiranje-


nepravomocnih-sudskih-odluka-o-eun-u---319387.html.
60
Sanader (so as not to violate Dr Sanader’s right to a speedy trial in those
proceedings).

5.52 Judge Turudić, acting as President of the County Court, also dismissed Dr
Sanader’s counsel’s application for recusal of Judge Štampar Stipić at the
outset of the trial on the grounds of lack of impartiality 283 . This led to Mr
Hernádi’s counsel requesting Judge Turudić’s recusal at a hearing before the
Trial Chamber on the day the decision was given 284 . This application was
rejected by the Supreme Court two days later on the ground that the power to
recuse only applied to future proceedings285, discussed further below.

5.53 Judge Turudić also took the decisions refusing Mr Hernádi’s team access to the
case file on 16.2.2017 and during the trial phase of the proceedings on
19.1.2019.

5.54 On 25.2.2019, our Croatian colleague was informed by Judge Štampar Stipić
that the decision prohibiting the Monitoring Team (see below at paragraph
7.10ff) having access to mobile phones in Court had been taken pursuant to an
order handed down by the President of the Court, Judge Turudić. The next day
she informed our colleague that the decision had in fact been taken by her 286.

5.55 On 7.3.2019, following submission of a letter to the Court concerning access to


translation facilities for the Monitoring Team’s intended visit, Judge Turudić
informed our colleague that the decision should be taken by the Trial Chamber
but then cited a number of reasons why the Team should not be permitted
access to mobile phones for translation purposes. He told Mr Lazić that he
considered that the letter sent by the Team “can represent some attempt to put
pressure on the Court”287.

5.56 Judge Turudić has been involved in the following decisions since the decision
of the Supreme Court prohibiting his involvement in the case as Trial Judge or
President:

 Decision of the President of the Zagreb County Court on recusal of the


judge Zdravko Majerović, 23.12.2015288;

 Decision of the Zagreb County Court on separation of criminal trials


against Mr Sanader and Mr Hernádi, 16.10.2017 (Judge Turudić presiding
over a three-member panel)289;

283 Decision no. 29Su-R04/18-2, 17.9.2018.


284 See PHM 17.9.2018, pg. 2.
285 Decision no. SU-IV359 2018-2, 19.9.2018.
286 See report of Davor Lazić on mobile phone issues, 15.3.2019, Appendix 6.
287 See report of Davor Lazić on mobile phone issues, 15.3.2019, Appendix 6.
288 23.12.2015 / Rješenje o izuzimanju suca Zdravka Majerovića od 23. prosinca 2015. godine (case

file pp. 9790-9792), concerning Judge Turudić allowing an application for recusal on the basis that
the judge had sat on Mr Hernádi’s indictment confirmation panel.
289 Reference no. Kv I-Us-50/2017 16.10.2017 / Rješenje o razdvajanju postupka (pp. 1-2).

61
 Decision of the Zagreb County Court on separation of the proceedings
against defendant Ivo Sanader, 16.10.2017290;

 Order appointing the judges in charge in proceedings against Dr Sanader,


7.12.2017291;

 Decision accepting the request from Judge Kvaternik, 8.12.2017292; and

 Decision of the Zagreb County Court rejecting the request of the defendant
Mr Hernádi to dismiss Judge Štampar Stipić, 17.9.2018293.

Preliminary reference to the CJEU

5.57 We note that Judge Turudić played a proactive role in the reference to the CJEU
which twice led to the imposition of the (twice overturned) suspension of the
criminal proceedings leading to a stay on the limitation period.

5.58 On 16.5.2017, the Extra-Trial Chamber of Zagreb County Court made a


reference for a preliminary ruling to the CJEU. Contrary to the requirements of
Croatian law, Mr Hernádi’s legal team was not notified of the decision of the
referring Court to submit the reference294.

5.59 The judge who took the lead in respect of the preliminary ruling request was
Judge Turudić295. He formally requested various preliminary matters from the
Hungarian authorities in respect of the reference, including a Croatian
translation of the Hungarian Criminal Code (2.1.2019) and information
concerning the actions of other EU Member States in respect of executing the
EAW against Mr Hernádi (10.1.2017).

5.60 At the same time, Judge Turudić took the lead role in the activation of the
Second EAW296: on 27.12.2016, Judge Turudić, as President of the Extra-Trial
Chamber, sent a request to the Croatian Ministry of Interior, asking for details
of what steps had been taken in respect of the EAW. He requested a response
“URGENTLY” (capitals in original) and stated that the request was “[f]or the

290 Reference nos. Kv-1-Us-50/2017 and K-Us-29/15 16.10.2017 / Rješenje o razdvajanju od kaznenog
postupka od 16. listopada 2017. godine (case file pp. 4178-4179 and 9940-9941).
291 Order no. 40 Su-30/17-172, 7.12.2017 / Naredba od 7. prosinca 2017. godine (case file pg. 9960a).
292 8.12.2017 / Rješenje o otklonu sutkinje Irene Kvaternik od 8 prosinca 2017. godine (case file pp.

9959-9960) – concerning Judge Turudić recusing another judge upon her request as she was
already trying another case involving Dr Sanader.
293 Reference no. 29 Su-1204/18-2, 17.9.2018 / Rješenje o otklonu sutkinje Maje Štampar Stipić od 17.

rujna 2018. godine (case file pp. 10139-10140).


294 Article 18.3 of the CPC/09, also see Professor Eeckhout’s second report 11.1.2019, para. 73; para.

66.
295 Supreme Court decision regarding second suspension 22.5.2018, pg. 2.
296 On 13.12.2016, Judge Šćekić, the new presiding judge in the (by now) joint proceedings against Dr

Sanader and Mr Hernádi, forwarded the case file to the Extra-Trial Chamber, “in order for you to
decide on the issue of the European arrest warrant with respect to the previously issued EAW,
having in mind the received letter of the Ministry of Justice of the Republic of Croatia dated 25
November 2016”. On 15.12.2016, ‘senior court consultant’ Ivana Bujas in the Extra-Trial Chamber
sent a request to USKOK for the MLA requests that had been sent to Hungary “for the purpose of
the respective proceedings”. These were promptly provided, albeit missing some pages.
62
purpose of initiating the preliminary ruling procedure before the Court of Justice
of the European Union”.

5.61 On 29.12.2016, the Ministry responded saying that no actions had been taken
because Croatia was not yet connected to the Schengen Information System,
and noting that the INTERPOL Red Notice had been deleted. Judge Turudić
responded on 2.1.2017, asking for “the data on actions undertaken by the EU
Member States in relation to the issued European arrest warrant against
Hernádi (in particular Germany and Austria, together with the reasons specified
by them for refusing to act in compliance with the above arrest warrant), as well
as the responses of other EU Member States”, again stating that this was “for
the purpose of initiating the preliminary ruling procedure before the Court of
Justice of the European Union”, and again asking for an urgent response297.

5.62 On 10.1.2017, Judge Turudić chased the Ministry of Interior for an urgent
response to his letter of 2.1.2017, and the Ministry responded the same day,
setting out the responses from various EU Member States to the EAW. On
23.1.2017, a statement from Judge Turudić was placed on the website of the
Zagreb County Court 298 . On 27.1.2017, the Zagreb County Court sent the
Second EAW to Hungary, first (unsuccessfully) by fax and then by e-mail. On
the same day, a further statement was placed on the Court’s website. This
warrant had been issued by the Zagreb County Court of its own motion and not
at the request of USKOK, who refused the Court’s request to revoke the First
EAW on the grounds that the statutory conditions had not been met.

5.63 On 16.5.2017, Judge Turudić, as President of the three-member EAW Panel,


made the reference for a preliminary ruling before the CJEU299. It is notable that
the facts given by the Croatian referring Court (Judge Turudić) to the CJEU only
referred to the 2012 Hungarian investigation that was terminated in their
question to the Court, and made no reference to the Bánhegyi private
prosecution (which was a full evidentiary examination resulting in acquittal at
the Budapest Metropolitan Court on 26.5.2014, for fraud and misrepresentation
based on the bribery facts300), which was one of two grounds relied upon by the
Budapest Metropolitan Court in refusing to extradite Mr Hernádi in August 2018;
this again raises the issue of bias considered at length above.

5.64 The reference to the CJEU led to the Zagreb County Court initiating a stay of
the criminal proceedings against Dr Sanader and Mr Hernádi, which had a

297 On the same day, Judge Turudić sent a request to the Croatian Ministry of Justice, asking for a
Croatian translation of “the relevant provisions of the Hungarian Code of Criminal Procedure that
was in force on 20 January 2012, which indicate when the criminal proceedings begin and which
judicial body issues the act pursuant to which the proceedings begin, as well as whether the
investigation can be conducted against an unknown perpetrator”. Again, he stated that this was “[f]or
the purpose of initiating the preliminary ruling procedure before the Court of Justice of the European
Union”.
298 https://sudovi.pravosudje.hr/zszg/.
299 Reference no. Kv-EUN-25/16, decision reference C-268/17-1 PPU.
300 Bánhegyi v Hernádi Metropolitan Court of Budapest, ref. no. 10.B.2044/2013/17, (26.5.2014), see

also decision on appeal, Budapest Tribunal of Justice, ref. no. 3.Bf.275/2014/7 (3.12.2014).
63
substantive effect on the proceedings with respect to limitation 301 . The
suspension of the proceedings was objected to by both USKOK and Mr
Hernádi’s lawyers and it was overturned by the Supreme Court on 19.9.2017,
as the requirements for the stay had not been met.

5.65 However, the County Court re-suspended the proceedings of its own motion on
19.12.2017 as it held that “circumstances have changed” (the circumstances
relied upon were that the indictment had been “disjoined” from the Hypo Bank
indictment, and that the CJEU had said the case would be considered a priority
– although the latter decision had been made in June, before the Supreme
Court’s decision in September). On 22.5.2018, the Supreme Court allowed
UKSOK’s and Hernádi’s appeal against the second suspension decision.

The Trial Chamber

5.66 We turn to the respects in which the Trial Chamber itself may be said to have
lacked the requisite independence and impartiality.

5.67 The applicable international standards are those set out at paragraphs 5.3 to
5.11 above.

The shadow of Judge Turudić

5.68 We have already addressed (at paragraphs 5.17 to 5.65 above) the respects in
which Judge Turudić involved himself directly or indirectly in the proceedings
under review. Before turning to specific decisions of the Trial Chamber, it is also
necessary to consider the respects in which the influence of Judge Turudić over
the Zagreb County Court may have damaged the independence of the Trial
Chamber itself.

5.69 As set out at paragraph 5.10 above, the independence of a Court will be
assessed having regard to a number of structural factors, including whether it
presents an appearance of independence. When Judge Turudić initially
allocated the first Sanader trial to himself, he was reported as having stated
that he did so because “the choice of judges for the case was very limited” –
this case 'selection' was criticised in the press for breaching impartiality302. The
Court spokesman has asserted that, generally, “cases are awarded by
alphabetical order or computer”, but accusations by senior members of the

301 According to Article 18 (5) of the CPA, “the court shall stay the proceedings pending a decision of
the CJEU”. According to Article 82(2) of the CC, “the statute of limitations shall not run during the
time criminal prosecution cannot be instituted or continued pursuant to law”. According to Judge
Štampar Stipić’s interpretation of the Croatian Criminal Act (5.7.2019), addressing Judge Turudić,
regarding correspondence with Štefica Stažnik, the Agent of the Government of the Republic of
Croatia before the ECtHR, both would be applicable (case file pp. 11210-11211).
302 “When candidates for the position of court president talked to the members of the State Judges’

Council, Alan Uzelac, one of the members, asked Turudic how it was decided who will be the judge
in the case against the former Prime Minister. According to Vjesnik reports, Turudic gave the case
to himself because the choice of judges for the case was very limited. Doesn’t awarding the Sanader
case to oneself by free choice, and not by computer or alphabetical order as Court rules state,
constitute a lack of independence and impartiality?” (emphasis added), Objektiv 16.7.2012.
64
judiciary concerning the allocation of cases at the Zagreb County Court have
been reported in the press303.

5.70 Irrespective of any personal involvement Judge Turudić may have had in the
selection of the Trial Chamber, in light of the recent Supreme Court judgment,
any trial that was conducted by a judge of the Zagreb County Court must be
considered to violate the right to an independent and impartial tribunal given
the recognition that Judge Turudić’s influence – and evident bias arising from
these proceedings – extends over the entirety of the Zagreb County Court.

5.71 Judge Turudić is plainly a powerful figure, with considerable informal influence.
In all the circumstances, there seems to us to be a substantial risk that a judge
of the Zagreb County Court would consider that he may well have an influence
on any outcome and may consider they have a vested personal interest in
making decisions that Judge Turudić agrees with, especially concerning such
high profile proceedings.

First recusal application 17.9.2018

5.72 At a preliminary hearing in Mr Hernádi’s case, his counsel requested the recusal
of Judge Štampar Stipić on the basis she had prejudged issues yet to be
determined in her response to Croatia’s preliminary reference issued to the
CJEU, 13.6.2018, by holding:

(i) that there were no procedural obstacles to the continuation of the


proceedings against Mr Hernádi and that the principle of ne bis in idem
was not being violated (Mr Hernádi had filed a submission on 4.12.2015
arguing that there were obstacles to the continuation of the criminal
prosecution, invoking the ne bis in idem principle. At the date of the
recusal motion, no decision on the merits had been given); and

(ii) that “the opinion of the advocate general in the case No. C-268/17 AY
pending before the Court of Justice of the European Union in
Luxembourg had no effect on the respective proceedings before the
domestic court”.

5.73 This request was summarily refused on 17.9.2018 by Judge Turudić. In


dismissing the application, he stated that the defence had indicated no reason
“whatsoever” for impugning Judge Štampar Stipić’s impartiality, and failed to
address why her statement did not give rise to doubts as to her impartiality304.

5.74 Judge Turudić’s ‘determination’ of the appeal was a clear breach of the
Supreme Court’s decision of 2015 – and the Judge’s personal involvement in
the issues that formed the basis for the recusal application (her response to the
preliminary issue, which he had taken the judicial lead on initiating) self-
evidently made it inappropriate for him to determine the appeal.

303 See e.g. Objektiv, 16.7.2012 and Interview of Judge Turudić by Express magazine, 15.3.2019.
304 PHM 17.9.2018, pg. 2.
65
5.75 On 19.9.2018, the Supreme Court dismissed Mr Hernádi’s request for the
recusal of Judge Turudić on the basis that their motion was filed after he had
made his decision, and the power to recuse a judge only applied in respect of
future proceedings305. There was, therefore, no examination of the merits of the
application to recuse Judge Turudić, even though his involvement is in clear
apparent breach of Supreme Court’s earlier ruling.

5.76 To prevent a defendant from challenging a clear case of unlawful action and
bias on grounds of procedural technicality raises fundamental fair trial issues.
The defence team had no reason to suspect in advance that Judge Turudić
would determine the appeal against Judge Štampar Stipić’s non-recusal and
they were entitled to assume that the Supreme Court’s order, that neither he
nor his deputy play any part in the proceedings, would be adhered to. Once it
was evident that the order had been breached, defence counsel applied on the
same day to recuse him. We find it surprising that the appellate jurisdiction of
the Supreme Court does not appear to have had the flexibility to ensure that
fundamental Article 6 rights are protected – for instance, by exercising an
appellate jurisdiction to quash an unlawful decision by an inferior judge.

5.77 As a result of the Supreme Court’s failure to determine the impartiality of the
tribunal that determined the recusal application of Judge Štampar Stipić, there
has been no Article 6 compliant determination of the substantive recusal
application itself. This is a clear violation of Article 6(1).

Second recusal application 18.2.2019

5.78 At the hearing on 18.2.2019, Dr Sanader’s counsel applied to recuse Judge


Štampar Stipić and the Trial Panel on the basis of suspicion of impartiality
arising from their decision to appoint ex officio counsel. The Panel Chair stated,
as a reason why her recusal was unwarranted, that the ruling on the
appointment had been made by the deputy President of the Court and not by
the Panel (according to Dr Sanader’s lawyer, the deputy President rendered
her decision without reviewing the record of the case and without requesting a
single ground for the judge’s statements306).

5.79 Defence counsel Ms Sloković argued that not only were the human rights of the
Defendant Dr Sanader being infringed, but hers as well by the Court ordering
her doctor to deliver her full medical record to the Court due to her absence at
the previous hearing (see chapters 9 and 10 below). The Panel Chair made it
clear that she was accusing Ms Sloković of deliberately delaying the
proceedings in order to bring about the expiry of the limitation period 307 and
threatened her with the costs of the hearing personally if she persisted in trying
to defend her professional reputation308.

5.80 Such an accusation by the finder of fact in criminal proceedings must inevitably
raise issues concerning the impartiality of the tribunal. Consequently, Dr

305 Decision no. SU-IV-359 2018-2.


306 MHUT 18.2.2019, pg. 6.
307 MHUT 18.2.2019, pg. 7.
308 MHUT 18.2.2019, pg. 7.

66
Sanader’s legal team applied to Judge Štampar Stipić to recuse herself from
the trial.

5.81 The Panel Chair attempted to dissuade Dr Sanader’s lawyers from making the
recusal application and suggested that their recusal application “causes harm
to the Defendant” 309 . It is noted that the official minutes do not record the
reasons for the recusal application310 (this was before the commencement of
the official audio recording).

5.82 Following their retirement to consider the application, the Court rejected the
defence request to submit an application for recusal, in a summary dismissal of
the application without consideration (they were not even permitted to apply) as
it was deemed a “misuse of the right under Article 32 para. 2 of CPA/08”. As
set out at paragraph 5.10 above, the failure to even consider an application
challenging the impartiality of the tribunal amounts to a violation of Article 6(1)
as international human rights law imposes the obligation on the Court to act on
its own motion when considering whether grounds for disqualification under
domestic law exist. Dr Sanader’s lawyers have submitted an appeal to the
Supreme Court311 but at the time of writing, no decision has been given.

Conduct of proceedings: summary

5.83 In addition to the issues concerning Judge Štampar Stipić’s appointment as


Chair of the Trial Panel, her approach to the conduct of the proceedings does
not give rise to the appearance of impartiality, which is identified in the
international principles set out at paragraphs 5.3 to 5.11 above as being as
important as a lack of actual bias. In that respect we reference, without
repeating in this chapter, the observations made below in relation to the right to
a public trial (chaper 7), the denial of a lawyer of one’s own choosing (chapter
9), pressure on lawyers (chapter 10) and Dr Sanader’s health (chapter 11).
Some further instances are given in the remainder of this chapter. We discuss
the Court’s conduct on 12.12.2019 in denying the Defendants the right to
present their case in chapter 12 below. We consider that an independent and
impartial tribunal could not have made such a blatantly unfair decision.

Insinuations of misconduct by Defendant and counsel

5.84 At an early stage of the proceedings, Judge Štampar Stipić accused Dr


Sanader’s counsel of attempting to manipulate the Court process so that the
limitation period will expire and threatened her with paying the costs of
adjournment for attempting to defend her integrity312 (see chapters 9 and 10
below). Prior to that hearing, the Panel Chair had ordered Ms Sloković’s doctor
to disclose her medical records to justify her absence at the hearing on
8.2.2019, notwithstanding the finding by the Croatian Health Insurance Fund
that her absence was justified.

309 MHUT 18.2.2019, pg. 10.


310 MHM 18.2.2019, pg. 2, and cf MHUT 18.2.2019, pg. 3.
311 4.3.2019, receipt confirmed 11.4.2019.
312 MHUT 18.2.2019, pg. 7

67
5.85 This effectively entailed a finding that Ms Sloković had acted in bad faith by
feigning illness – and therefore that she must be acting on the Defendant’s
instructions. On 18.2.2019, the Court gave a number of different reasons for
imposing the ex officio lawyer. First Ms Sloković was accused of feigning
illness. Then the Judge explained she had “requested the Croatian Health
Insurance Fund, to verify your sick leave, because fevers and sciatica, in my
opinion, are not diagnoses that can justify [non-attendance at] the hearings for
indefinitely in a case that will become barred by the statute of limitations very
soon”. The Judge then accused Ms Sloković (and thereby seemingly accepting
she was genuinely ill) of not letting the Court know the day before when she
knew her ‘sedimentation’ was raised and only contacting the Court that
morning313.

5.86 The making of such detrimental assumptions against the Defendant, without a
proper foundation, by the tribunal of fact raises issues relating to impartiality
and to the presumption of innocence.

5.87 In addition, the forcible disclosure of such highly personal information in a


professional context raises concerns of improper pressure being put on the
defence lawyers in breach of Article 6(2) ECHR, as well as a potential violation
of Ms Sloković’s own Article 8 rights, discussed further at chapter 10 below.

Hostility towards First Defendant and counsel

5.88 Following the imposition of the ex officio lawyer, the Judge attempted to
dissuade counsel from making an application to recuse her by suggesting that
such an application would “harm the defendant” 314 , appearing to elide her
apparent hostility towards counsel with the outcome for the First Defendant in
the trial. At the hearing the following day, the Panel Chair stated she would “not
allow the endless invoking [of the Defendant’s rights]”315 with respect to whether
the proceedings could continue in the absence of Dr Sanader.

5.89 The conduct of the Panel Chair towards Dr Sanader himself gives rise to further
concerns regarding the appearance of bias. On 8.2.2019, when the Court
informed Dr Sanader that they had imposed an ex officio lawyer on him due to
his lawyer’s absence through ill health, the Panel Chair forcefully prevented him
from addressing the Court, notwithstanding he was unrepresented at that
stage316 (see chapter 9 below).

5.90 The conduct of the Panel Chair towards both defence counsel descended into
outright hostility at the hearing on 19.2.2019, when the issue of scheduling
hearings to take account of Dr Sanader’s medical condition was discussed317.
During the course of a heated exchange from which the public were excluded,
and in which Ms Sloković was accused by the Panel Chair of “creating

313 MHUT 18.2.2019, pg. 6.


314 MHUT 18.2.2019, pg. 10.
315 MHUT 19.2.2019, pg. 28.
316 MHUT 8.2.2019, pg. 2.
317 MHUT 19.2.2018, pg. 30 (Appendix 8).

68
tensions”318 and “strongly hindering”319 the proceedings, high level fines were
summarily imposed on both counsel (see paragraphs 10.10 to 10.29 below).

5.91 The Judge’s approach to the issue of whether the proceedings against Mr
Hernádi were barred by application of the ne bis in idem principle raises
additional concerns about partiality. She was seemingly content to rule on the
substantive application on the basis of an incomplete assertion by prosecution
counsel as to what the Hungarian courts had decided, without consideration of
the actual judgments of the Budapest courts, and notwithstanding defence
counsel’s assertion that there had been a full trial of the merits. She refused the
application without giving any reasons320.

5.92 An assessment of the Trial Judge’s impartiality in her approach to the


prosecution witnesses of course cannot take place until the judgment has been
delivered. As emphasised in particular at paragraph 5.8 above, a key principle
of the requirement of independence and impartiality is not only that the tribunal
has those qualities, but that it also gives the appearance of having those
qualities.

Restrictions on admission of relevant evidence

5.93 We note the repeated restrictions and interruptions of the Judge of Mr Hernádi’s
English counsel, Mr William Boyce QC, which may interfere with his ability to
elicit all relevant evidence. The application of the rules governing the
questioning of witnesses, particularly in respect of the prohibition on leading
questions, appears to be unequally applied as between Mr Boyce QC and the
prosecution counsel, and Mr Boyce QC has been prevented from questioning
Mr Ježić in the coherent order which he had prepared – topics and questions
were categorised as irrelevant (and accordingly questions were not permitted)
before the evidence had been heard and submissions made in a procedure
which did not allow contextualisation (see below).

5.94 The sporadic insistence by the Judge on all questions by Mr Boyce QC being
relayed through a Croatian lawyer added delay and to the disjointed nature of
the questioning in addition to that already created by the need for interpretation
(see below at paragraph 7.11 regarding the refusal to permit defence
simultaneous interpretation facilities). The Judge repeatedly insisted on
defence questioning being as speedy as possible and yet refused defence
proposals to save time (for example, simultaneous translation) and applied a
procedure which lengthened proceedings (for example, relaying of questions).

5.95 The defence was not permitted to ask questions on key areas: the Judge did
not permit the defence to question Mr Ježić on the alleged deal between him
and USKOK, on the basis that USKOK had asserted that there has been no
such deal (see paragraph 4.59 above). This unquestioning acceptance of

318 MHUT 19.2.2019, pg. 28.


319 MHUT 19.2.2019, pg. 29.
320 PHM 4.10.2018, pg. 5.

69
USKOK’s assertion without any evidence or genuine enquiry ignores the critical
distinction between reliable evidence and mere assertion by the prosecution.

5.96 The Judge refused to order Mr Ježić to answer questions on other key topics
when he was reluctant to: in relation to ordering him to disclose the identity of
Xenoplast’s shareholder(s), the Judge initially ordered production of the
document that supported his claim of confidentiality321 – but on the document
not being produced (Mr Ježić later asserted it had been “misplaced”322), the
Judge changed her mind as to the relevance of the question (now holding that
ownership was not important) and subsequently ruled that Mr Ježić was not
required to answer – and Mr Boyce QC was not entitled to ask – any questions
about the missing shareholder(s) because it was “irrelevant” to the
proceedings 323 . The Court refused the defence application for an order to
produce documents relating to Xenoplast’s ownership in its ruling of 30.9.2019,
discussed below.

5.97 The Judge further deprived herself of additional tools in her assessment of Mr
Ježić’s credibility by refusing (without giving reasons) to permit the record of the
evidence that he had given at the UNCITRAL proceedings to be adduced in
evidence324. The Court was thus unaware of how his testimony has developed
over time and through earlier cross-examination and refused to allow cross-
examination of Mr Ježić regarding inconsistencies arising from his arbitration
testimony. The Court was thereby deprived of seeing how Mr Ježić dealt with
those inconsistencies. Mr Boyce QC was thereafter prevented from undertaking
a detailed examination of the inconsistencies between his testimony and his
statement to USKOK because the questions were “stalling this criminal
proceeding” 325 . Mr Boyce QC (and Dr Sanader’s counsel) was further
prevented from questioning Mr Ježić on Mr Hanžeković’s attendance at USKOK
when he and Mr Hürlimann gave their statements and on the circumstances in
which their statements came to be made326 (see paragraph 4.24 above).

5.98 The Judge also prevented Mr Boyce QC from questioning Mr Hürlimann about
the wording of the agreements signed by Xenoplast, seemingly accepting the
prosecution argument that they were “fictitious contracts” and thus irrelevant.
Mr Boyce contended that whether the contracts were “fictitious” was yet to be
determined by the Court and the starting point for establishing the credibility of
the witness was the extent to which he had been prepared in his professional
capacity to sign such contracts. The Judge refused to allow the questioning,
noting (and perhaps begging the question) “he is not on trial ... he did something
he should not have”327. She also prohibited Mr Ježić from being questioned as
to whether he still employed Mr Hürlimann on a retainer328.

321 MHUT 10.5.2019, pg. 54; MHUT 28.5.2019 (part 1), pg. 9.
322 MHT 13.6.2019, pg. 5.
323 MHUT 14.6.2019 (part 1), pp. 3-4.
324 MHUT 14.6.2019, (part 1), pg. 2.
325 MHUT 14.6.2019 (part 1), pp. 17-18.
326 MHUT 14.6.2019 (part 1), pg. 39; (part 2), pg. 20.
327 MHUT 14.10.2019, pp. 38-39.
328 MHUT 14.6.2019 (part 1), pg. 43.

70
5.99 As noted at paragraph 5.11 above, Article 6(3)(b) requires that the Court gives
the Defendants the opportunity to “organise his defence in an appropriate way
and without restriction as to the ability to put all relevant defence arguments
before the Trial Court and thus to influence the outcome of the proceedings”.
We note that although it is contrary to Croatian practice329 for the defence to
have to reveal who they intend to propose as witnesses until those proposed
by the prosecution have been heard, the Judge repeatedly pressed the defence
to provide such information in advance, even when Dr Sanader had been
absent from the proceedings following his operation and unable to be contacted
by his lawyers330 (see chapter 11 on Dr Sanader’s health below).

5.100 Further, given that the prosecution case rests entirely on an acceptance of Mr
Ježić’s testimony as true, we are concerned that defence applications for the
production or inclusion of contemporary documents which would have assisted
in providing objective evidence by which Mr Ježić’s testimony could be tested
were refused. On 30.9.2019, the Court refused the defence application for
international legal assistance to be sought from the Swiss authorities to produce
key documents which we consider would assist any impartial tribunal in
discharging its central function of assessing Mr Ježić’s credibility.

5.101 The Court rejected as “irrelevant and procrastinating” the accounts, bank
statements, financial and tax statements for Xenoplast and Dioki Holding; loan
agreements and other documents relating to loans between Xenoplast and
Dioki Holding, and between Dioki Holding and Hypo Bank; and documents
relating to the companies’ re-capitalisation and merger (which all relate to the
missing €5 million); communications relating to the transfer of funds by Ceroma
and Hangarn to Xenoplast (the key allegation in the proceedings) and
revenue/tax accounts for this payment; and communications between Mr
Hürlimann and Credit Suisse regarding the payment and due diligence
conducted by Credit Suisse (relevant to the commission of criminal offences);
and documentation listing share and percentage ownership of Xenoplast (on
which Mr Ježić was questioned at length, including by the Judge)331.

Conclusion

5.102 We consider that the Trial Chamber lacks independence and impartiality in
breach of the fundamental requirement of Article 6. This requirement is
breached in any event by the proceedings taking place before any judge within
the whole of the Zagreb County Court, given Judge Turudic’s influence, as
recognised by the Supreme Court in the Šeparović proceedings. However, we
also consider that Judge Štampar Stipić’s conduct of the trial gives an
appearance of bias which further breaches the requirement of impartiality.

5.103 The Panel Chair’s conduct has fallen below the standards of a Judge that are
identified in international principles set out above, which require her to “ensure

329 And see Art. 419 CPA/08.


330 e.g. MHUT 3.10.2019, pg. 74.
331 Order rejecting the motions for the defense of both accused referred to in the submission of

13.9.2019 (case file pp. 11391 to 11394), 30.9.2019.


71
that [her] conduct, both in and out of court, maintains and enhances the
confidence of the public, the legal profession and litigants in the impartiality of
the judge” 332 . She has breached the international principles on the
independence of lawyers by fining counsel and ordering disclosure of medical
records. Decisions affecting the Defendants’ fundamental fair trial rights were
taken without proper justification or process: in particular, the decision to deny
the Defendants the right to call witnesses and sufficient time to present their
defence.

5.104 We are concerned that the Court has, for no reason, deprived itself of key tools
in the effective assessment of Mr Ježić’s credibility – its approach to
presentation of the defence case through the submission of evidence and the
questioning of witnesses by Mr Boyce QC gives us concern that the Court is
not applying the requisite rigour to its analysis of Mr Ježić’s credibility, in
particular the nature of Mr Ježić’s financial and corporate dealings with the
companies through which the criminal proceeds were on his account laundered.
Careful consideration of these matters must be central to any impartial analysis
of his evidence. These matters go both to whether he can be believed as the
(sole) evidence on which to base any conviction and to the Court’s
understanding of where the missing €5 million of alleged criminal proceeds has
gone.

332 The Bangalore Principles, para. 2.2.


72
6. ILLEGITIMATE REGARD TO THE “INTERESTS OF CROATIA”
Applicable international standards

6.1 It is axiomatic to the fair trial requirements in Article 6 that defendants know the
case they have to meet: Article 6(3)(a) requires that an accused must be
informed promptly “and in detail, of the nature of the accusation against him”. It
is also an aspect of the guarantee to “adequate time and facilities for the
preparation of his defence” in Article 6(3)(b) – which requires that an accused
must not only be aware of an accusation but must also have knowledge of the
grounds on which the accusation is based. This right is often described as an
element of the ‘equality of arms principle’333.

6.2 We are also asked to consider whether the proceedings which we are
monitoring complied with Croatian law. It is a self-evident (and internationally
recognised) principle that courts should act in accordance with the law
applicable to them, including their national constitutional law. In that respect, it
is relevant to consider whether the prosecution and the Trial Chamber have
proceeded in a manner consistent with the Constitutional Court’s ruling of
24.7.2015 in relation to the scope of the proceedings, the framing of the
indictment and the consideration of evidence.

The Constitutional Court’s ruling

6.3 The Constitutional Court ruled, as summarised in detail at paragraphs 3.19 to


3.30 above, that consideration of whether the FASHA and GMA were in the
interests of Croatia (“the interests of Croatia issue”) is a matter that the Court is
constitutionally prohibited from determining. Judge Turudić was found to have
wrongly held that loss of national control of the Management Board of INA was
self-evidently detrimental to Croatia’s interests, and must therefore have been
procured by bribery. The Constitutional Court’s ruling was of course binding on
the Trial Chamber.

6.4 In the light of that ruling, and applying the principles identified above, it was
incumbent on the Trial Chamber:

(1) not to examine the interests of Croatia issue;

(2) to ensure that the interests of Croatia issue formed no part of the
prosecution case, and that the Defendants were aware of this; and

(3) to exclude evidence whose only relevance could have been to the
interests of Croatia issue.

6.5 We are concerned, however, that neither the prosecution nor the Trial Chamber
appears to have grasped the impact of this ruling, either for the scope of the
indictment or for the relevance of evidence. In consequence, they have:

333 See e.g. Jespers v Belgium, No. 8404/78, para. 55.


73
(1) failed to provide clarity as to the case that the Defendants have to meet;

(2) admitted evidence that does not appear to be relevant to the issues
properly before the Court; and

(3) acted in a manner inconsistent with the Constitutional Court’s ruling, and
the principle embodied in it of the separation of powers.

Scope of the indictment

6.6 No indictment reflecting the ruling of the Constitutional Court was served during
the course of the prosecution evidence334, although an amended indictment
was served a few days before the conclusion of the evidentiary hearing on
16.12.2019 (see below). The indictment that was operative during the entirety
of the prosecution evidence asserted that the corrupt agreement (which took
place between “early 2008 and late 2009”) was to grant MOL “without
foundation, a controlling influence on INA and conclude an agreement on the
separation of the gas operations from INA whereby the part of the gas
operations that generate losses for INA d.d. will be separated ... knowing that
the conclusion of such agreements was contrary to the interests of the Republic
of Croatia” (emphasis added).

6.7 The prosecution had an opportunity to clarify and amend its case in its written
submissions of 23.10.2018335. However, instead of taking that opportunity, it
asserted that “the lawfulness of the presented evidence has not been brought
into question in any way [by the Constitutional Court decision]” and that the
prosecution would prove the charges “precisely in the way described in these
indictments”. Indeed, the prosecution has gone so far as expressly to question
(and thus to undermine) the ruling of the Constitutional Court and its jurisdiction
to make it336.

6.8 Notwithstanding the issue being specifically raised by the defence and the
obvious disadvantage to the defence caused by the absence of clear guidance
from the Court, the Trial Chamber has done nothing to ensure that all parties
understood the implications of the Constitutional Court’s ruling. Those
implications relate both to the scope of the case that can properly be made

334 See MHUT 23.10.2018, pg. 4, same indictment as 2011.


335 See MHUT – not set out in Court minutes.
336 “Now I would like to refer to the decision of the Constitutional Court. The analysis of its contents

shows that it has actually disputed the capacity of the prime minister as an official person. Moreover,
in a certain way, it has problematized the extent of the statement of facts concerning the criminal
offence of receiving a bribe ... I would like to point out and invoke the provision of Article 487
Paragraph 3 of the Criminal Procedure Act, which explicitly prescribes that only the court of second
instance is authorized to specify which mistakes have been made in the course of establishing of
the facts of the case. Moreover, we should have in mind that one of the fundamental principles of
the criminal procedure is the principle of the free weighing of evidence, pursuant to which the court's
right to weigh the existence or non-existence of the legally relevant facts is not bound by any special
rules, except the rules regarding the facts which should not, i.e., may not be included, as prescribed
by the Criminal Procedure Act…”: MHUT 23.10.2018, pp. 8-9; see response of defence counsel at
pg. 11: “What I simply feel that I must say is to express my consternation with the part of the
statement of the Deputy Director of USKOK in which she argued with and reinterpreted the decision
of the Constitutional Court …”.
74
against the Defendants, as set out in the indictment, and to the admissibility
and relevance of the evidence of prosecution witnesses.

6.9 The indictments were amended (and consolidated) on 9.12.2012 (and in a


further limited way on 12.12.2019). The agreement was now said to be to
procure the execution of the FASHA and GMA by “30 October 2008 [at the]
latest”337. It no longer alleged that Dr Sanader had concluded the agreements
knowing they were “contrary to the interests of the Republic of Croatia” but it
maintained that there were “no grounds” for MOL to acquire the effective control
over the said company “given the share of MOL in the ownership structure” and
no “reasonable grounds” for the separation of the gas business338. Though the
terminology has changed, this appears to us to repeat the central,
impermissible assertion that change of control brought about by the
agreements was “without foundation” (i.e were not in the interests of the
Republic of Croatia). The Constitutional Court held that the term “without
foundation” referred “more to the value judgment of the court on the
harmfulness of the respective transaction for the Republic of Croatia”339.

Admission of irrelevant evidence

6.10 The majority of the witnesses in these proceedings may be considered


‘economic’ or ‘political’ witnesses who give testimony (as they did in the first
Sanader trial) as to whether the FASHA and GMA were a ‘good deal’ for
Croatia, including a number who give evidence as to their subsequent effect, in
particular the relinquishing of control of the Supervisory Board of INA. That
evidence appears to have little or no relevance to the case as interpreted in the
light of the Constitutional Court’s ruling.

6.11 The issue of the impact of the Constitutional Court’s ruling on the evidence
which USKOK intended to rely on in the retrial was explicitly raised by defence
counsel at the start of the main trial340. Prosecution counsel responded that it
had all been dealt with in his introductory remarks at the hearing on 23.10.2018
(see paragraph 6.7 above). There was no input from the Court. This lack of
clarity has disadvantaged the defence by leaving them ignorant of the extent of
the challenge required to the ‘economic/political’ witnesses – because their
case is such witnesses are not relevant following the Constitutional Court’s
ruling – but unaware how relevant the Court considers their evidence. This has
a direct impact on the Defendants’ effective participation in the trial and ability
to challenge prosecution witnesses.

6.12 We are concerned as to the relevance of the many witnesses that have been
called to testify as to INA’s performance after the agreement was signed, such
as Damir Vanđelić (who joined the Supervisory Board in 2011, and asserted
that “[t]he Ministry was already at that point aware that the amendments to the

337 Mr Hernádi’s counsel argued that the effect of the amendment was that statute of limitations had
expired in relation to him in May 2019, see chapter 12 below.
338 Amended indictment 6.12.2019, pg. 1.
339 At para. 349.
340 MHM 4.2.2019, pg. 17.

75
Agreement were detrimental to the Republic of Croatia”341 and gave evidence
in relation to INA’s market share in 2011342); Davor Štern (appointed Chairman
of the Supervisory Board of INA in 2011 – he was working abroad from 2000 to
2010) 343 ; Ivan Krešić (appointed to the Supervisory Board in 2011) 344 and
Davor Mayer (appointed to the Supervisory Board in 2011)345. These witnesses
appear to be giving retrospective testimony to examine the impact of the
FASHA and GMA (the latter of which was subject to unforeseen events as a
result of Croatia’s financial difficulites; see the evidence of Mr Polančec346).

6.13 It seems to us plain that this evidence goes to the issue of whether the
agreements were “in the interests of the Republic of Croatia”: an issue that,
pursuant to the Constitutional Court’s ruling, was not for the Trial Chamber to
determine. Both the prosecution and Court have seemingly failed to grasp the
implications of that central tenet of the Constitutional Court’s ruling.

6.14 For example, prosecution counsel specifically asked Davor Mayer (Supervisory
Board member in 2011) to comment on whether the “interests of the strategic
partner always correspond to the interests of the Republic of Croatia” 347 .
Although Dr Sanader objected to the admissibility of this question (correctly in
our view) on the basis that Mr Mayer was neither a member of the Government
nor of Parliament and so could not define what the strategic interests of Croatia
were, the Judge did not make any ruling upon his objection. The Judge has
asked detailed questions of witnesses concerning the performance of INA after
the agreements and the impact of MOL having a majority on the Supervisory
Board348.

6.15 We consider that the evidence that has been given by the politicians involved
with the FASHA and GMA negotiations invites a determination by the Court of
precisely the issue that was prohibited by the Constitutional Court’s judgment.
The inherently political process that they describe of Government decision-
making in a time of very limited options (“a time of crisis” 349 ) provides a
paradigm example of political judgments that the Constitutional Court declared
to be outside the jurisdiction of the Trial Court (and which any Court is
manifestly ill-equipped to determine); the Constitutional Court held that such an
enquiry would “constitute interference of the judicial power with the
constitutional tasks of the legislative and executive power, as well as the
interference of criminal courts with the political accountability of the
government”, in violation of the Croatian Constitution350.

341 MHT 19.3.2019, pg. 3.


342 MHT 19.3.2019.
343 MHUT 18.2.2019.
344 MHUT 11.3.2019.
345 MHUT 25.2.2019.
346 MHUT 24.9.2019 (part 2), pg. 36.
347 MHUT 25.2.2019, pg. 6.
348 See e.g. questions of Davor Štern, MHUT 18.2.2019, pp. 8-15ff .
349 Mr Šuker MHUT 24.9.2019, pg. 9.
350 At para. 402 of their judgment.

76
Significance of these errors for the fairness of proceedings

6.16 The seriousness of these errors must be appraised in the light of the strength
of the prosecution case on improper influence as a whole. The admission of
evidence judged irrelevant by the Constitutional Court might be considered less
serious (though still significant) if the prosecution had other convincing
evidence to similar effect. For the reasons given below, however, that is not the
case.

6.17 Relevant here is the evidence to the effect that:

(1) MOL’s increased control was judged beneficial to INA at the time;
(2) there was seen to be no viable alternative to the FASHA and GMA; and
(3) there is no evidence of improper influence by Dr Sanader.
In the remainder of this chapter we set out our reasons for characterising the
evidence in that way.
MOL’s increased control was judged beneficial for INA

6.18 The evidence is that the Government had no option but to negotiate some form
of amendment to the 2003 SHA once its shares had fallen below 50%, pursuant
to Article 7 of that agreement351. The amended indictment asserts that there
were no “reasonable grounds” (previously “without foundation”) why MOL’s
“share in the ownership structure gave it effective control of the company”.
However, the prosecution appears to answer its own allegation by setting out
in the indictment precisely the grounds which gave MOL effective control of the
company: namely MOL’s greater share of ownership which, as numerous
witnesses testified, allowed it to outvote INA on every issue.

6.19 What form the amendment took was an entirely political and economic
question, inevitably dictated by the strength of the negotiating parties. It is clear
that INA was in a very weak bargaining position. It was on the verge of
bankruptcy. By reason of the 2003 agreement, it was now only entitled to
appoint two members to the Supervisory Board, with decisions taken by simple
majority352. The ‘lock down’ period after which MOL no longer had to sell its INA
shares to Croatia was due to elapse in October 2008, and loans that were due
at the end of 2008 would send INA into bankruptcy353. It was agreed that the
FASHA should be agreed by the end of the year before the loans were due354.
6.20 It was the evidence of the witness who was charged with conducting the
negotiations, Damir Polančec, the Deputy Prime Minister, Minister of Economy,
Labour and Enterprise and Chairman of the negotiating Commission (formally

351 See e.g. evidence of lawyer Mr Marković who was instructed to draft the SHA, MHUT 3.10.2019, pg.
20ff; also, Krešimir Dragić MHUT 3.10.2019, pg. 15 and Mr Polančec MHUT 24.9.2019 (part 1), pp.
7-8 and MHUT 24.9.2019 (part 2), pp. 52-53.
352 Mr Polančec, MHUT 24.9.2019 (part 1), pp. 7-8.
353 See e.g. Mr Polančec, MHUT 24.9.2019 (part 1), pp. 22-23.
354 Mr Šuker MHUT 24.9.2019, pg. 6.

77
established by the Government for the task in early 2008355), that the FASHA
had protected Croatia’s interest as a shareholder (“still have representatives in
the Management Board and Supervisory Board, and that there is a legal
framework in our hands as well as the fact that INA is still in operation today,
which is fulfilling its purposed and interests in the Republic of Croatia” 356). He
explained that the amendment to the SHA had enabled Croatia to secure a
number of advantages (which had been the Government’s purpose in the
negotiations357) that it would not otherwise have had if MOL had been able to
outvote them as the largest shareholder. Thus, Croatia secured the pre-emption
right to purchase of all shares and the right to repurchase in case Russian
interests took over MOL (“a bad scenario”). In addition, the deadline for
prohibiting the purchase of shares was prolonged358. The decision to approve
the FASHA was taken by the entire Government following the presentation by
Mr Polančec as head of the negotiating Commission.
6.21 The assumption of control by MOL of the Supervisory Board that the FASHA
brought about (an inevitable product of the 2003 SHA) was self-evident to the
Inner Cabinet and the party Presidency359 and to Parliament when it approved
it (indeed this is explicitly stated in the amended indictment360): Mr Bebić, the
President of the Parliament, described it as “logical” that INA’s management
structure had to be changed once MOL had become the majority owner and
stated that “It does not matter if he comes from Japan. If someone runs the
company well or makes the right decisions, then, to my mind, he is just like
Croat, a Croatian national”. It was, he said, an “issue of the company itself and
its interests ... not an issue of the state, or a third party”361. The report of the
Committee that was appointed to investigate the FASHA was adopted by the
Croatian Parliament on 21.10.2010. It concluded that the “defined reserved
rights” and clear decision-making structure meant that the Republic of Croatia
“was not put into a more unequal position compared to the one defined by the
[SHA]”: for the most part, the provisions of the FASHA preserved the rights that
Croatia had held under SHA. “In accordance with that, it is important to point
out that the provisions of these amendments protected the interests of the
Republic of Croatia to the highest possible degree”.
6.22 The evidence is that MOL’s increased control led to a significant improvement
in INA’s financial position. The lawyer Mr Marković, who drafted and advised
on the FASHA and GMA (and who had never met or spoken to Dr Sanader),
gave evidence that at the time of the agreements were being negotiated, INA
was in “deep financial trouble”. Following the change in management structure
brought about by the FASHA, INA started servicing its debts and became
“financially positive”362. It was his opinion that the agreements signed in 2009

355 Mr Lučić, MHT, 12.3.2019, pg. 4.


356 Mr Polančec, MHUT 24.9.2019 (part 2), pg. 13.
357 Mr Polančec, MHUT 24.9.2019 (part 1), pg. 18.
358 Mr Polančec, MHUT 24.9.2019 (part 1), pg. 7; (part 2), pp.7, 57-58.
359 Mr Polančec, MHUT 24.9.2019 (part 1), pg. 62.
360 Amended indictment 6.9.2019, pg. 2.
361 MHUT 21.10.2019, pp. 24-25.
362 MHUT 3.10.2019, pp. 38-39.

78
helped INA to improve its financial position363. Davor Štern gave evidence that
INA was on the verge of bankruptcy in 2008 due to a bad oil purchase decision
which left it $400 million in debt (approved by all of the INA board, when Croatia
had the majority of board members) 364 but that it was in a better financial
position by 2011 (the improvement having started in 2009365).
6.23 Crucially, those who were involved at the heart of the negotiations considered
that the changes to the Management Board giving MOL greater control were a
good thing: Mr Polančec had described INA’s Management Board when Croatia
was in control as “politically appointed” and considered that “the majority of
these people did not have the competence to be at those positions”366; “MOL’s
delegates were by far more competent than our delegates” 367; Mr Marković
maintained in evidence that the changes to the INA Supervisory Board that it
brought about “was a good decision”368 (as did Mr Polančec369). He had also
was of the view (and presumably had advised the Government) that the
absence of an agreement created a “serious legal risk for Croatia” and the
FASHA was “absolutely necessary for Croatia”370.
6.24 The greater involvement of MOL was approved by the management of INA at
the time. Mr Petrović (the CEO of INA from 2007 to 2008) stated in evidence,
“If we must have a partner, they are the best option for us” – he described
MOL’s Management Board as “above all expectations”371.
6.25 Pursuant to the ruling of the Constitutional Court, it is not for the Trial Chamber
to determine whether the right political judgements were made at the time. The
Court is not the forum to decide whether Mr Polančec is right in his view of the
benefits of the FASHA, or whether Mr Mayer (appointed to INA’s Board in 2011)
is right that the agreements were not in the interests of Croatia because INA,
as it is a strategic company in Croatia’s only remaining industry, ought to
represent “the interests of the Republic of Croatia” (as MOL does for
Hungary)372. These are self-evidently political judgements.
Absence of viable alternative to the FASHA and GMA

6.26 There is no evidence that any viable alternative was available to the
Government (from which, conceivably, improper influence might have been
inferred). Mr Bebič, the President of the Croatian Parliament at the time, said
they “were grateful that there was some interest in INA, which was in a difficult
situation”373 – they were “in search of a partner who could help with getting them
out of a crisis”374. Along with the 2003 SHA requiring them to agree the FASHA

363 MHUT 3.10.2019, pg. 71.


364 MHUT 18.2.2019, pg. 97.
365 MHUT 19.2.2019, pp.4, 7.
366 Mr Polančec, MHUT 24.9.2019 (part 2), pg. 41.
367 Mr Polančec, MHUT 24.9.2019 (part 1), pg. 59.
368 MHUT 3.10.2019, pg. 52.
369 Mr Polančec, MHUT 24.9.2019 (part 2), pg. 10.
370 MHUT 3.10.2019, pg. 38.
371 Mr Petrović, MHUT 17.10.2019, pg. 35.
372 MHUT 19.2.2019, pp. 10-11.
373 MHUT 21.10.2019, pg. 22.
374 Mr Bebić, MHUT 21.10.2019, pg. 5.

79
before INA went bankrupt, the Government had no option but to negotiate in
relation to its gas business (the separation of which had been a “topic of
discussion at sessions of various preceding governments”375 – from ”before
2000” according to Ms Dropulič376). Croatia had previously been selling its gas
at a loss for social policy reasons. It was no longer permitted to do this by EU
accession requirements and MOL as “majority [owner] […] had a legitimate right
to ask to consolidate INA’s income” by requiring the gas to be sold at an agreed
market price (which had “a large and positive effect” on INA’s gas trade377) and
selling the unprofitable gas production business.
6.27 As Mr Polančec noted, “we had not had any complaints with regards to MOL as
a strategic partner … the members of the Management Board selected by MOL
were far more competent the ones we deployed”378 and specifically neither he
nor anyone else involved in Government said that the agreement would be
contrary to Croatia’s interests 379 . The GMA was also circulated among the
Government (including HDZ’s coalition partners380), as well as to the General
Secretariat and the Legislative Office381 and approved. Mr Bebić gave evidence
that there was a long and detailed discussion at Cabinet before a unanimous
decision was reached382. Mr Polančec considered that the GMA (along with the
purchase of the underground gas storage business) helped INA avoid
bankruptcy383.
6.28 The only alternative to the FASHA that was ever proposed was that of a share
swap between INA and MOL, which MOL was in favour of as it would have
sheltered their shares from a Russian takeover384. When this possibility was
announced by Dr Sanader, INA’s shares rose and MOL’s dropped, indicating
that increased control of INA by MOL was considered to be financially beneficial
to INA. The swap however did not proceed as Mr Marković advised that he saw
no commercial benefit and significant risk to it385. His evidence was that the
rejection of this idea left no option but to negotiate the FASHA in the terms
agreed386.
No direct evidence of improper influence

6.29 The prosecution case is that Dr Sanader improperly influenced the decision to
pass the FASHA and GMA. The ‘substantiation’ section of the indictment
(unamended by the served amended indictment) alleges that “Ivo Sanader did
not need to explicitly and directly instruct on what stance to take in a particular
situation” but “he presented it as though it were a matter of decisions in the

375 Mr Bebić, MHUT 21.10.2019, pg. 7.


376 MHUT 4.11.2019, pg. 13.
377 Mr Polančec, MHUT 24.9.2019 (part 2), pg. 7.
378 Mr Polančec, MHUT 24.9.2019 (part 1), pg. 59, see also Mr Bebić, MHUT 21.10.2019, pg. 25.
379 Mr Polančec, MHUT 24.9.2019 (part 2), pp.10-11.
380 See Mr Lučić, MHT 12.3.2019, pg. 8; Mr Bebić, MHUT 21.10.2019 pg. 7.
381 Ms Pogarčić, MHUT 24.10.2019, pg. 28.
382 Mr Bebić, MHUT 21.10.2019 pg. 10, see also Ms Dropulič, MHUT 4.11.2019, pg. 10ff.
383 Mr Polančec, MHUT 24.9.2019 (part 2), pg. 34, see also Mr Bebić, MHUT 21.10.2019, pp. 4-5.
384 Mr Marković, MHUT 3.10.2019, pg. 44.
385 MHUT 3.10.2019, pg. 23ff.
386 MHUT 3.10.2019, pp. 24, 25ff.

80
interest of the Republic of Croatia with which it would protect its strategic
position in INA and ensure the energy independence of Croatia, which is why
the members of the Government, believing that were true, supported the
conclusion of such contracts” (emphasis added)387. Only evidence that goes to
demonstrate this improper influence is relevant to the charge. The indictment
does not specify any matters which Dr Sanader knew to be untrue, and which
led the Government to be wrongly persuaded. The only examples provided in
the indictment where Dr Sanader is alleged to have actually put “pressure on
others”388 are said to be the witnesses Branko Radošević and Olgica Spevec,
discussed at paragraphs 6.37 to 6.41 below. Evidence of influence is likely to
be restricted to events prior to the passing of the agreements (or, for example,
incriminating comments made later).
6.30 For the accusation of improper influence to have substance, clear evidence
would be necessary of how the key players in the decision-making were
subverted. Evidence is required showing how Mr Polančec, as the Minister in
charge of the negotiations, was improperly pressured by Dr Sanader, or
information withheld by him or otherwise misled into making the presentation to
the Government to accept the agreements.
6.31 However, Mr Polančec’s evidence was that Dr Sanader did not put any
pressure on him nor any other members of the Cabinet389. He considered that
the FASHA was the best agreement that Croatia could obtain and he presented
his findings to the whole of the HDZ Presidency, which unanimously approved
them. He gave evidence that he made five to six detailed presentations to the
Cabinet during the course of the negotiations390 and at no stage did he withhold
any information391. For any bribe to have been effective, it would have had to
have influenced Mr Polančec’s final presentation, which was accepted by the
Government (Mr Bebić described Mr Polančec’s presentation as “very detailed”
and “very persuasive” 392 ). The evidence that is required to prove the
prosecution case must specifically go to the manner in which Mr Polančec’s
presentation, which persuaded the Government, was subverted by Dr Sanader.
6.32 Several witnesses gave evidence that the negotiating Commission did not
function as intended, and that after meeting four times, it ceased functioning.
Mr Polančec and the lawyer the Commission had agreed to hire to conduct
negotiations continued independently, reporting back periodically to the
Cabinet. However, the Commission ceasing to function was not evidence of

387 Indictment against Zsolt Tamás Hernádi: K-US-145/11 (Zagreb, 31.3.2014), pg. 28.
388 Indictment against Zsolt Tamás Hernádi: K-US-145/11 (Zagreb, 31.3.2014), pg. 28.
389 Mr Polančec, MHUT 24.9.2019 (part 2), pp. 6-7; the Head of Legislative Office, Ms Pogarčić, who

was present at all Cabinet meetings responded “on the contrary” in response to the Judge’s question
as to whether Dr Sanader imposed his opinions on other ministers, MHUT 24.10.2019, pg. 13; see
also pp. 26-27; and further Ms Dropulič, MHUT 4.11.2019, pg. 8; Ms Kosor, MHUT 24.10.2019, pp.
41-44; Mr Bebič, MHUT 24.10.2019, pp. 30-31.
390 See e.g. evidence of Ms Pogarčić, MHUT 24.10.2019, pp. 5-6, for a description of the presentations

and Cabinet discussions.


391 Mr Polančec, MHUT 24.9.2019 (part 1), pp. 21, 25.
392 Mr Bebić, MHUT 21.10.2019, pg. 32; see also evidence of Ms Pogarčić, MHUT 24.10.2019, pp. 5-

6, Head of Legislative Office, present at all Cabinet metings, for a description of the presentations
and Cabinet discussions.
81
any attempt by Dr Sanader to improperly influence the outcome. Mr Polančec
explained that he wound up the Commission due to Mr Šuker, the only other
Cabinet Minister who was a member of the Commission, not attending any of
the meetings (Mr Polančec stated that this was reflective of his “difficult
relationship” with Mr Šuker – during 2008 he replaced Mr Šuker as Chairman
of the Supervisory Board393; Ms Pogarčić gave evidence that the “intolerance”
between the two men was “not initated” by Mr Polančec394). On informing Dr
Sanader of Mr Šuker’s non-attendance (and that he was “ignoring the work of
the Commission” 395 ), Dr Sanader advised him to conduct the negotiations
directly and report back to the Cabinet.
6.33 The witnesses who were involved with the Commission before it stopped work
in May 2008 did not suggest that Dr Sanader had tried to influence them: Igor
Lučić confirmed that while it met, Dr Sanader did not attempt to steer the
negotiations in any direction and that Dr Sanader had instructed the
Commission to “attempt to preserve the same administrative rights as it had
when Croatia held 75% of the shares” 396 . He also confirmed that after the
Commission stopped meeting, Mr Polančec continued to keep the Government
informed about the negotiations (which he was conducting with the lawyer Mr
Marković397); other members of the Commission, Mr Bošnjaković (29.9.2019)
and Mr Duvnjak (8.7.2019), gave evidence to similar effect. Mr Dragić, who was
sent as Mr Šuker’s deputy, gave evidence that he attended two meetings of the
Commission and did not suggest any improper pressure was placed on him398.
6.34 Mr Šuker did not attend any of the meetings personally. He gave evidence that
Dr Sanader did not try to impose his opinion on him or the Cabinet399; although
he thought that the Supervisory Board should be made up of four members
from INA and four from MOL with one from the smaller shareholders – his
proposal however “was not accepted”400 (there is no suggestion that MOL as
the majority shareholder would have agreed to that proposal; under the terms
of the 2003 SHA Croatia’s shareholding only entitled them to appoint two) –
and he voted for the FASHA in the Presidency once it had been passed by the
Cabinet 401 . He confirmed that when Dr Sanader gave the introductory
presentation (which was recorded) to the Government prior to Mr Polančec, Dr
Sanader did not say whether the amendments should be accepted (“there was
never any imposing”402).

393 Mr Šuker, MHUT 24.9.2019, pg. 14.


394 Ms Pogarčič, MHUT 24.10.2019, pg. 7.
395 Minutes of pre-trial questioning of Mr Polančec by USKOK, 13.9.2011, pg. 3
396 MHT 12.3.2019, pg. 7.
397 Minutes of Mr Lučić’s evidence at the first Sanader trial, 9.12.2011, pg. 2.
398 MHUT 3.10.2019, pp. 6-9.
399 Mr Šuker, MHUT 24.9.2019, pg. 34.
400 Mr Šuker, MHUT 24.9.2019, pg. 28: see also Ms Pogarčić, MHUT 24.10.2019, pg. 24 that Mr Šuker’s

disgreement with Mr Polančec was evident in the tone of his questions, after every explanation he
would ask another. He said Mr Polančec was “always very patient and would hear him out and
provide an answer”.
401 Mr Šuker, MHUT 24.9.2019, pg. 24.
402 Mr Šuker, MHUT 24.9.2019, pg. 39.

82
6.35 It appears that the highest the prosecution evidence reaches on the issue of
influence is that the responsible Minister disbanded the Commission and
pursued negotiations personally with the expert lawyer hired for that purpose.
However, this does not support the prosecution case, as neither witness
suggested any improper influence from Dr Sanader. It is clearly a political
matter as to whether the responsible Minister takes the initiative in any issue,
or takes advice from a Commission (which is not functioning because a key
Minister is absenting himself); Ms Pogarčić confirmed there was no
consitutional problem with the work of the Commission being transferred back
to Government, as the Government was the orginal holder of the power403. In
the absence of any evidence that Dr Sanader tried to improperly influence Mr
Polančec, the prosecution theory falls at this crucial hurdle.
6.36 Further, the evidence was that the drafting of the GMA (in respect of which
KPMG was employed as an advisor – and which both parties agreed would be
responsible for determining the price 404 ) was a “collective task by several
parties and several individuals”405. Mr Polančec was in charge of negotiations
for the GMA (this has been agreed at the first meeting of the Commission), until
his resignation in October 2009 when Mr Šuker took over to negotiate an
extension to some of its provisions. The others involved with the GMA
negotiations did not assert that the discussions were steered in any direction:
see Mr Galić406; Mr Novak (Chief of Cabinet of Mr Polančec, who believed that
“the discussions on the separation of gas business dealing were conducted in
the best interests of the Republic of Croatia”407); Mr Horaček, who was involved
with the plans to separate the gas business, confirmed that no one told him
what to do, other than achieve the best possible outcome for the company to
operate independently408.
6.37 Mr Radošević (head of the Management Board of Plinacro) gave evidence that
he was involved with the negotiations between Plinacro and INA for the
purchase of the gas underground storage facility. He said the initial proposal
was not acceptable, but after detailed negotiation, his team’s amendments were
accepted which led to “a benefical and excellent agreement” – “the
implementation was very favourable for both Plinacro and Croatia”409. He gave
evidence that the negotiations were “very intense and uncomfortable” as they
“started with a position that was very unfavourable”410. The INA representatives
insisted that the agreement be finished by the end of the year 411. Following a
fraught late-night meeting in late December 2008, Mr Radošević suspended the
negotiations. He was then ordered by Minister Dropulić to continue negotiating
to a new deadline of the end of January 2009. After a month’s further

403 MHUT 24.10.2019, pg. 25.


404 Ms Tamaš, MHUT 11.11.2019, p 52.
405 Mr Marković, MHUT 3.10.2019, pg. 54.
406 MHT 26.2.2019, pg. 6.
407 MHUT 30.9.2019, pg. 25.
408 MHT 18.6.209, pg. 10.
409 MHUT 30.9.2019, pg. 38.
410 MHUT 30.9.2019, pg. 53.
411 MHUT 30.9.2019, pg. 58.

83
negotiation (Plinacro having engaged a specialist negotiating team 412), they
reached an “exceptionally beneficial” agreement413.
6.38 The high point of the prosecution evidence in relation to pressure regarding the
GMA appears to be Mr Radošević’s assertion that Dr Sanader said to him “the
Hungarians are important and [he] should loosen up”. He said that in a phone
call (which Mr Polančec was a party to), Dr Sanader told him “if [he coulnd’t]
finish the negotiations within the deadline [he] should step down” 414 . That
conversation was disputed by Dr Sanader at his first trial (and he was absent
for the evidence in this trial; see the section on Dr Sanader’s health below), but
in any event, it does not come close to evidence of improper pressure in
bringing about the GMA. In the indictment, reliance is seemingly only placed on
a second-hand suggestion of influence in a statement purportedly made by
Jozo Petrović, who requested that the negotiations “ended as soon as possible
and thereby referred to the fact that he is a person of confidence of Ivo Sanader,
who would otherwise be very angry”415.
6.39 Mr Radošević’s evidence concerns the difficulties in negotiation between INA
and Plinacro, which involved disputes over internal funding arrangements. The
evidence is also clear that an agreement had to be reached by the end of the
year to prevent INA going bankrupt.
6.40 Further, Mr Radošević was clear that “the decision to take over the underground
gas storage was the best decision that the Government of Croatia could have
passed and thus corrected the mistake it made during the privatization whereby
this was left out”. He said that implementing the decision was “exceptionally
beneficial” given that they “repurchased the underground storage at the lowest
possible price calculated by independent experts”416. He also considered that
Mr Polančec tried to negotiate a market price for the gas that was “set at a fair
rate and for it to be balanced”417. He thought that the gas price agreed upon
was “not favourable to Croatia” but that perhaps it was the product of
“compromise”418. These are clearly political judgements made at a time when
INA was in a critical financial position. Mr Šuker gave evidence that he voiced
objections to the agreements, but it was usual that if something passed the
Cabinet, everybody voted for it at the Government meeting419.
6.41 It is noted that Mr Radošević is explicitly relied upon in the ‘substantiation’
section of the indictment as one of only two examples given of Dr Sanader using
“traditional methods of putting pressure on others”420 (as opposed to his Prime
Ministerial authority – see amended indictment, page 1), the other being Olgica
Spevec, head of the CCA: in evidence, however, she confirmed that Dr Sanader

412 Which included a team of foreign lawyers instructed to monitor Plinacro’s team, perform complete
due diligence and evaluate the negotiations and contract provisions – MHUT 30.9.2019, pg. 38.
413 MHUT 30.9.2019, pg. 38.
414 MHUT 30.9.2019, pg. 60.
415 Indictment against Zsolt Tamás Hernádi: K-US-145/11 (Zagreb, 31.3.2014), pg. 28.
416 MHUT 30.9.2019, pp. 38-39.
417 MHUT 30.9.2019, pg. 45.
418 MHUT 30.9.2019, pp. 61, 63.
419 MHUT 24.9.2019, pg. 9.
420 Indictment against Zsolt Tamás Hernádi: K-US-145/11 (Zagreb, 31.3.2014), pg. 28.

84
did not try to dispute or any way interfere with the CCA’s right to analyse the
FASHA and the market concentration related to it, telling her only to “take into
account that it was a strategic interest of Croatia”. She said there was no
intervention from Dr Sanader in their decision, other than being told to “hurry”.
These statements are relied on the indictment, in addition to an allegation that
Dr Sanader hung up on her, as “actual pressure”421. The CCA approved the
concentration of energy suppliers from a competition point of view in April
2009 422 . Again, there is no evidence of Dr Sanader’s alleged “influence”
overbearing all the other entities involved in negotiating and advising upon the
agreements.
6.42 It is unclear to us how evidence of witnesses below those actively involved in
the decision-making process are relevant to the issue of proving any improper
influence by Dr Sanader.
Conclusion

6.43 The evidence properly adduced, so far as relevant to the allegation of improper
influence on which the prosecution relies, is to the effect that:
(1) MOL’s increased control was judged beneficial to INA at the time;
(2) there was seen to be no viable alternative to the FASHA and GMA; and
(3) there is no direct evidence of improper influence by Dr Sanader.
6.44 In those circumstances, there are plainly substantial difficulties in the
prosecution case. Indeed, the evidence is that it would actually have put MOL
in a stronger position if the FASHA had not been agreed, as it would have had
the majority vote with none of the negotiated advantages for Croatia in the
agreement. In the circumstances, it is hard to see how any bribe could have
been necessary (particularly since the agreements were approved by
Parliament five months before the first payment is said to have been made).
The bribe theory faces further obstacles in the loss of control that Croatia was
already subject to under the terms of the 2003 SHA once its share ownership
had dropped below 50%, the desperate financial position that INA was in at the
time the agreements were negotiated, and the EU requirements to regulate its
gas supply business.
6.45 Against that background, the ruling of the Constitutional Court in relation to the
interests of Croatia issue – and the apparent disregard for that ruling by the
prosecution and Trial Chamber – assume particular importance. There is a
constitutional prohibition on retrospective consideration by the Trial Chamber
of whether the FASHA and GMA were in the interests of Croatia. That must

421 “Ivo Sanader in April 2009 first called her and asked about the procedure for assessing the MOL-
INA concentration whereby he said that it was an important matter of strategic interest for the
Republic of Croatia, particularly with regard to the gas business. Later in June 2009, during a press
conference which she called on the occasion of the Agency having brought a decision, Ivo Sanader
called her and, clearly dissatisfied with the decision, hung up the phone, then called her urgently to
the Government to explain the decision, and only after the representatives of MOL accepted the
decision of the Agency did he apologize to the witness”. (pg. 28).
422 MHT 26.2.2019, pp. 11-12 .

85
imply not only an amendment of the indictment to make its true scope clear to
the defence, but the exclusion from consideration of evidence directed to the
interests of Croatia issue.
6.46 For these reasons, we consider that the errors detailed above of the
prosecution and Trial Chamber are remarkable, and of crucial significance for
the fairness of proceedings. We shall return to our consideration of these issues
and the treatment of this evidence after the closing arguments as may be
necessary at the conclusion of the trial and delivery of judgment.

86
7. RIGHT TO A PUBLIC TRIAL
Applicable international standards

7.1 The holding of court hearings in public is recognised by the ECtHR as


constituting “a fundamental principle enshrined in paragraph 1 of Article 6 of the
ECHR” 423 . The public hearing requirement in Article 6 has two distinct
components: that hearings are conducted in public and that judgment is
pronounced publicly. The public may be excluded from all or part of the trial for
specified reasons and where it is “strictly necessary” to avoid prejudice to the
interests of justice.

7.2 A public trial is “not only an additional guarantee that an endeavour would be
made to establish the truth but also helped to ensure that the defendant was
satisfied that his case was being determined by a tribunal, the independence
and impartiality of which he could verify” 424 . The public hearing guarantee
further functions as an institutional guarantee, a way of ensuring that the
administration of criminal justice is subject to public scrutiny and contributes to
respect for the law425.

7.3 The right follows from the purpose and object of Article 6 taken as a whole and
in particular from the rights contained in sub-paragraphs 3(c) (right to defend
oneself) and 3(d) (right to examine witnesses on same conditions) of Article
6426.

Exclusion of public

7.4 The public were excluded from the hearing on 19.2.2019 when the Court took
the punitive decision against the defence lawyers to fine them during the course
of their vigorous assertion of Dr Sanader’s right for the proceedings not to
continue in his absence (see chapter 10 below). We note that this exclusion is
not recorded in the Court minutes427, and at that time there was no official
recording of the proceedings428. The Monitoring Team listened to the audio tape
recorded by the defence teams of this hearing and considered the transcript of
the recording.

7.5 The case law of the ECtHR emphasises that derogations from the public nature
of a trial must be justified under the exceptions contained in Article 6(1)429.
Here, although the public were initially excluded at Dr Sanader’s request, so
that he could provide full details of his health issues, and thus was justified
under the exception as required “to protect the private life of the parties”, once

423 e.g. Pretto v Italy, no. 7984/77, 8.12.1983, at para. 21; Sutter v Switzerland, no. 8209/78, 22.2.1984,
at para. 26.
424 Anderson v Sweden, no. 11274/84, 29.10.1991, at para. 24, citing the Commission in Ekbatani v

Sweden, at para. 28.


425 See e.g. Stefan Trechsel, ‘Human Rights in Criminal Proceedings’ (OUP, 2005), pg. 123.
426 Anderson v Sweden, above.
427 MHM 19.2.2019, pg. 11.
428 Official audio recordings of the proceedings were introduced by the Court on 25.2.2019
429 Riepan v Austria, no. 35115/97, 14.11.2000, para. 32 et seq.

87
these details were given, there was no purported justification for the continued
de facto exclusion of the public.

7.6 During the period that the public continued to be excluded, the Panel Chair
made serious accusations against defence counsel. She threatened to hold a
hearing every day notwithstanding existing professional commitments,
summarily imposed fines on counsel of an unprecedented level, and allowed
her interactions with counsel to descend into abuse with conduct falling below
the standard which is to be expected in Court.

7.7 No justification for continuing to exclude the public (which included our
colleague Mr Lazić) was even seemingly considered by the Court, and certainly
none was articulated during the hearing or in the subsequent written order.
Even if there is no formal exclusion decision, “hindrance in fact can contravene
the Convention just like a legal impediment”430.

7.8 The conduct of this hearing raises serious issues about the independence and
impartiality of the tribunal (see chapter 5 above) and is highly relevant to the
confidence that the public might be expected to have in the administration of
justice during the trial – both aspects which, as discussed at paragraph 7.2
above, are central to the importance of the right to a public hearing. The
exclusion of the public from such important matters without purported
justification amounts, in our judgement, to a violation of Article 6.

7.9 A possible remedy for such a violation can be a complete re-hearing431 which
in this case would have required the Panel to re-admit the public, rehearse the
debate and retake the decisions; none of which happened in this case. Such a
re-hearing would also have potentially contributed to a more measured and
considered decision (see paragraph 7.2 above). It is possible (though
unprovable) that the exclusion of the public from the hearing was a factor in its
degeneration.

Denial of Monitoring Team access to interpretation

7.10 The circumstances in which Mr Lazić has been denied permission to take his
mobile phone into the hearing since 25.2.2019 are set out in full in his report
dated 15.3.2019, reproduced at Appendix 6. This restriction was of particular
concern to us as when the Monitoring Team attended the start of the trial,
translation of the proceedings into English was provided in the courtroom via a
private member’s group on our mobile phones.

7.11 We had intended to return to Zagreb in April to observe the defence questioning
of Mr Ježić, whose evidence to the prosecution we had observed in February.
However, once it became clear that the ban would apply to all members of the
Monitoring Team, and no other interpretation facilities had been permitted by
the Court (the Court had at the start of the main hearing refused a request by
Mr Hernádi to provide a simultaneous translation facility in Court, at his own

430 Riepan, para. 28.


431 Krestovskiy v Russia, no. 14040/03, 28.10.2010, para. 34; Riepan, para. 35 et seq.
88
expense), we did not consider it would be productive for us to return to hear
further live evidence. The members of the Monitoring Team who did not speak
Croatian were subsequently able to follow proceedings only remotely, by
messages sent to a private members’ group from inside the Court and
subsequently by reference to hearing transcripts. The Croatian-speaking
member of the Monitoring Team attended every evidence session and reported
back to the remainder of the Team.

7.12 It seems to us that the prohibition on access to privately funded interpretation


facilities is of potential relevance to the right to a public trial. As in relation to the
other translation issues, we anticipate returning to this point in our Final Report.

89
8. RIGHT TO EFFECTIVE PARTICIPATION

Applicable international standards

8.1 According to established case-law of the ECtHR, reflecting a principle linked to


the proper administration of justice, judgments of courts and tribunals should
adequately state the reasons on which they are based 432 . The Court has
identified that reasoned decisions serve the purpose of demonstrating to the
parties that they have been heard and in addition, they oblige judges to base
their reasoning on objective arguments, and also preserve the rights of the
defence. Further, a reasoned decision is important so as to allow an applicant
to usefully exercise any available right of appeal433.

8.2 The ECtHR has held that national courts should indicate with sufficient clarity
the grounds on which they base their decision, and while they are not obliged
to give a detailed answer to every argument raised434, it must be clear from the
decision that the essential issues of the case have been addressed435 and that
a specific and explicit reply has been given to the arguments which are decisive
for the outcome of the case436. In summary, “an issue with regard to a lack of
reasoning of judicial decisions under Article 6(1) 1 of the Convention will
normally arise when the domestic courts ignored a specific, pertinent and
important point raised by the applicant”437.

8.3 A further distinct issue has been held to arise when such decisions can be
qualified as arbitrary to the point of prejudicing the fairness of proceedings.
However, the Court has identified that “this will be the case only if no reasons
are provided for a decision or if the reasons given are based on a manifest
factual or legal error committed by the domestic court, resulting in a ‘denial of
justice’”438.

Failure to give rulings/reasons

8.4 In the instant proceedings, the Court at both the pre-trial stage and during the
main trial hearing has failed repeatedly either to give rulings or provide reasons
for decisions taken. The official transcript and minutes are also incomplete.

432 Moreira Ferreira v Portugal (no. 2) [GC], no. 19867/12, 11.7.2017, § 84.
433 Hadjianastassiou v Greece, no. 12945/87, 16.12.1992.
434 Van de Hurk v the Netherlands, no. 16034/90, 19.4.1994, § 61.
435 Boldea v Romania, no. 19997/02, 15.2.2007, § 30.
436 Moreira Ferreira v Portugal (no. 2) [GC], § 84; S.C. IMH Suceava S.R.L. v Romania, no. 24935/04,

29.10.2013, §40 (concerning contradictions in the assessment of evidence).


437 Nechiporuk and Yonkalo v Ukraine, no. 42310/04, 21.4.2011, § 280; see, in this context,

Rostomashvili v Georgia, no. 13185/07, 8.11.2018, §59; Zhang v Ukraine, no. 6970/15, 13.11.2018,
§ 73.
438 Moreira Ferreira v Portugal (no. 2) [GC], § 85; Navalnyy and Ofitserov v Russia, no. 78193/17,

21.12.2017, § 119, concerning a politically motivated prosecution and conviction.


90
8.5 Examples of where the Trial Chamber has failed to rule at all are as follows:

(1) USKOK and Mr Ježić: at the preliminary hearing on 8.12.2014, Mr


Hernádi’s lawyers submitted a written application for a certified written
statement pursuant to Article 286(5) of the CPC/09 concerning whether
an agreement had been reached between the prosecutor’s office and Mr
Ježić. The Court decided that this issue should be determined after Mr
Ježić has been interrogated439, although for any resulting information to
be effectively deployed it is clearly required before any cross-
examination takes place. No written response was provided by USKOK,
only an oral denial of any agreement at the hearing on 4.2.2019 in
response to the further request made by Dr Sanader440.
(2) Denial of mobile phones to Monitoring Team: on this issue (summarised
at paragraphs 7.10 to 7.12 above), no public oral or written decision was
ever pronounced and our request for the same was ignored.
8.6 Examples of the Court’s failure to provide reasons for its decisions are as
follows:

(1) Ne bis in idem: Mr Hernádi’s lawyers’ application that the proceedings


were barred by application of the principle of ne bis in idem was orally
refused without reasons441.
(2) Translation: the decision to continue the trial without awaiting the ruling
from the Supreme Court on full translation of the case file was refused
without reasons442; orally requested again and refused on 4.2.2019443.
(3) Pre-Trial detention: the challenge to the jurisdiction of the Non-Trial
Panel to order Mr Hernádi’s pre-trial detention was rejected without
reasons444.
(4) Rejection of defence evidence proposal: the defence proposal provided
a detailed explanation as to why the evidence was relevant, but it was
rejected without any adequate reasons.
Completeness/accuracy of the Court record

8.7 We note that notwithstanding the introduction of official audio/video recording


of the proceedings, comparison with the unofficial transcript shows that the
official transcript is an incomplete record. Whole questions and answers were
omitted from, for instance, Mr Boyce QC’s questioning of Mr Ježić 445 , and
defence objections were not transcribed 446 . The Panel Chair’s practice of
inviting counsel to approach the bench to address her (as opposed to inviting

439 PHM 8.12.2014, pg. 8.


440 MHT 4.2.2019, pg. 2.
441 PHM 4.10.2018, pg. 5.
442 MHM 23.10.2018, pg. 3.
443 MHUT 4.2.2019, pg. 9.
444 MHM 3.12.2018, pg. 3.
445 See e.g. MHUT 10.5.2019 (part 2), pg. 27 and compare with MHT pg. 36.
446 See e.g. MHUT 10.5.2019 (part 2), pg. 39 and compare with MHT pg. 44.

91
witnesses to leave the courtroom) on the relevance of questions or evidence
means that defence submissions on relevance are not entered into the
record447.

8.8 The Court minutes also omit relevant events and submissions 448 which
occurred before official recording commenced. On other occasions, the Court
minutes do not record oral reasons given in Court for decisions 449 . The
accuracy of the Court record will be relevant to any appeal pursued in the event
of a conviction and we will return to consideration of this issue, as necessary,
in our Final Report.

8.9 We note that the Panel Chair informed the defence in September that they must
make an application at every hearing for their recording to be authorised, and
the recordings hitherto were thus unauthorised450. We are surprised at this, as
it seems clear that the Court was aware throughout that the defence were
making their own recording (and appeared to condone it)451. We would have
thought that the Court would have welcomed the production of as complete a
record of the proceedings as possible to ensure transparency, effective
participation and also to assist in their own analysis of the evidence which has
stretched over many months.

447 See e.g. MHUT 13.6.2019 (part 2), pg. 17 and MHUT 14.6.2019 (part 1), pp. 21-22.
448 The (unofficial) transcript for the hearing on 8.2.2019 shows Dr Sanader repeatedly endeavouring
to correct the Court’s erroneous record that he asked for the ex officio lawyer to be granted 15 days
to prepare for trial – the transcript shows that he asked for him to be given an “adequate time”, the
Court minutes nonetheless state that he requested that he be given “15 days” and does not record
his correction (MHUT 18.2.2019, pp. 3-4, cf MHM 18.2.2019, pg. 2); the reasons for the defence
application to recuse Judge Štampar Stipić on 18.2.2019 are not recorded in the Court minutes
(MHUT 18.2.2019, pg. 4, cf MHM 18.2.2019, pg. 2).
449 See “President of Panel briefly elaborates the aforementioned decree” by way of reasons for

rejecting Mr Hernádi’s lawyers application for translation of case file as “premature” (PHM
24.11.2014, pg. 3).
450 MHUT 24.9.2019, pp. 49-50.
451 Ms Sloković told the Panel Chair “we have everything recorded” during the exchange on 19.2.2019

(Mr Mayer, MHUT 19.2.2019, pg. 29); shortly thereafter the Panel Chair said to Ms Valković “just
keep recording” (pg. 31).

92
9. DENIAL OF LAWYER OF OWN CHOOSING

Applicable international standards

9.1 The guarantee contained in Article 6(3)(c), that everyone charged with a
criminal offence has the right to defend himself or herself “through legal
assistance of his own choosing”, is generally recognised in international human
rights law as a mechanism for securing an effective defence to the accused452.
The ECtHR has emphasised that the fairness of proceedings requires that an
accused should be able to obtain the whole range of services specifically
associated with legal assistance453.

9.2 The ECtHR has noted “the importance of the relationship of confidence
between a lawyer and his client” and has consistently held that the national
authorities must have regard to the defendant’s wishes as to his or her choice
of legal representation, which may only be overridden when there are relevant
and sufficient grounds for holding that this is necessary in the interests of
justice454. Where such grounds are lacking, a restriction on the free choice of
defence counsel would entail a violation of Article 6(1) together with paragraph
(3)(c) if it adversely affected the applicant’s defence, regard being had to the
proceedings as a whole455.

Decision to appoint ex officio counsel

Circumstances of the appointment

9.3 On 8.2.2019, in response to both Dr Sanader’s lawyers contacting the Court


and informing it that they would be unable to attend the hearing that day or the
following Monday for medical reasons456, the Court appointed an “attorney ex
officio” for the first Defendant for further proceedings until the verdict becomes
final “because of the statute of limitation running against the second defendant
Zsolt Hernádi”, pursuant to Article 66 paragraph 2 of the CPA/08.

9.4 Article 66 of the CPA/08 provides:

“(1) When no conditions for mandatory defence exist, the court may upon the
defendant's request assign a defence counsel to the defendant if he, due to his
financial situation, is unable to pay the defence costs.

(2) A request for the assignment of a defence counsel according to paragraph


1 of this Article may be made only after the indictment has been preferred. The

452 See e.g. Dvorski v Croatia, no. 25703/11, 20.10.2015, GC para. 78.
453 See Dayanan v Turkey, no. 7377/03, 13.10.2009, § 32.
454 See e.g. Meftah and Others v France [GC], nos. 32911/96 and 2 others, § 45, ECHR 2002-VII;

Mayzit v Russia, no. 63378/00, 20.1.2005, § 66; Klimentyev v Russia, no. 46503/99, 16.11.2006, §
116.
455 Dvorski v Croatia, application no. 25703/11, 20.10.2015, GC para. 79.
456 “Čedo Prodanović notified the court by phone that he cannot appear at the hearing because recently

he had a knee surgery, and that the defense attorney Jadranka Sloković allegedly has flu and high
sedimentation, and he undertook to deliver the documentation to the record of the case in the course
of today” – MHT 8.2.2019, pg. 1.
93
president of the panel shall decide on [this] request and the president of the
court shall assign a defence counsel according to the provision of Article 65
paragraph 6 of this Act”.

Article 65(6) provides:

“If the court estimates that actions taken by the defendant or the defence
counsel serve to delay the criminal proceedings, at the motion of the president
of the panel the president of the court shall appoint a defence counsel by virtue
of the office for further proceedings up until the judgment becomes final”.

9.5 The Panel Chair told Dr Sanader at the outset of the hearing on 8.2.2019 that
as she “do[es] not know when your defense attorneys will be able to appear at
the hearing, you will be granted a court-appointed defense attorney who will be
present at the hearings all the time because, obviously, you see, your defense
attorneys are either ill or they are having knee surgeries. We cannot have
adjournments all the time because … the second defendant will become subject
to the limitation period”457.

9.6 Mr Sanader endeavored to address the Court, stating that such an order was
unnecessary as this was the first time his attorneys had ever been absent, but
he was repeatedly prevented by the Panel Chair from making any
representations about the order. His request for the lawyer to be given
adequate time to familiarise himself with the case was met with the response
that eight days were sufficient. The Court adjourned the proceedings until
18.2.2019:

CHAIRWOMAN OF THE PANEL: All right, please sit down.

IVO SANADER: No, no, I haven’t said everything.

CHAIRWOMAN OF THE PANEL: Sit down!

IVO SANADER: Well, can I [interrupted]

CHAIRWOMAN OF THE PANEL: You can’t.

IVO SANADER: ...regarding the court-appointed defense attorney?

CHAIRWOMAN OF THE PANEL: Yes. No, the court has decided so, you can’t
do anything.

IVO SANADER: All right, but I am requesting that the court-appointed defense
attorney gets familiar with the record of the case.

CHAIRWOMAN OF THE PANEL: Yes, he will get familiar with it, of course.

IVO SANADER: He can’t get familiar with it within 2 weeks.

CHAIRWOMAN OF THE PANEL: He can. He will be granted an 8-day period.

457 MHT 8.2.2019, pg. 1.


94
IVO SANADER: Please record in the minutes what I have just said. And I also
believe that it is a violation of my right to a fair trial.

CHAIRWOMAN OF THE PANEL: Sit down, sit down!

IVO SANADER: You can’t [interrupted]

CHAIRWOMAN OF THE PANEL: Sit down!

IVO SANADER: ...within 8 days.

CHAIRWOMAN OF THE PANEL: Sit down.458

Violation of rights of Dr Sanader and his counsel

9.7 This episode raises stark issues of Dr Sanader’s fair trial rights. This was a
decision affecting his fundamental right under Article 6(3)(c) to be defended by
a lawyer of his own choosing. By this order, Dr Sanader was forced to provide
privileged information in a highly sensitive case involving national interests to a
state-appointed lawyer, if they are to effectively represent him (see also
ordering of medical reports of his lawyer below).

9.8 Dr Sanader clearly had the right to address the Court on whether such a
significant interference with his Article 6(3)(c) rights was justified, but the Panel
Chair denied him even his right to do this, preventing him from speaking in
forceful terms and without explanation. Further, as Dr Sanader was without any
legal representation on that day, and was entitled to be represented by a lawyer
of his own choosing, his lawyers should have been given the opportunity to
make representations before any final decision was made.

9.9 Further, the Court made the serious accusation that Dr Sanader’s lawyers were
deliberately delaying the proceedings in order so that they became statute
barred against the second Defendant: “these proceedings are being stalled due
to the reason that soon it will become barred by the statute of limitations in
respect of the second defendant, we all know that” – “so by acting like that, you
want to achieve that [this case] becomes barred by the statute of limitations,
but you will not succeed in that”459. This allegation was roundly rejected by Ms
Sloković (as one of Dr Sanader’s counsel), who pointed out that they had been
acting in these proceedings for ten years and had never once been absent460.

9.10 Later in the hearing, when Ms Sloković requested clarification as to whether the
order has been made because she was “ill or allegedly ill” (i.e. because she
was feigning illness), the Court stated that in fact the order has been made on
the grounds of “certainty” because, the Chair stated, “it is never certain when
you will be unable to appear again”461. It is not clear what evidence the Judge
relied upon to reach this assessment regarding how likely Ms Sloković’s

458 MHT 8.2.2019, pg. 2.


459 MHT 18.2.2019, pg. 7.
460 MHT 18.2.2019, pg. 4.
461 MHT 18.2.2019, pg. 8.

95
condition was to re-occur and with what frequency as she did not refer to any
at the hearing.

9.11 We consider that a firm evidential basis would be required to level such a
serious allegation and lawfully impose such a significant restriction on the
Defendant’s Article 6(3)(c) rights462.

9.12 Given it appears that it is only in respect of Mr Hernádi that the Court expressed
a view about the imminence of expiry of the limitation period, any purported
justification for restricting Dr Sanader’s fair trial rights in consequence must be
given particularly anxious scrutiny. No apparent consideration appear to have
been given to separating the proceedings against the two defendants, although
this would have been open to the Court463. The expressed reason for imposing
the restriction is due to the imminence of the expiry of the limitation period which
the Court asserted would occur “very soon” 464 . It transpires that the Court
considers that the limitation period will expire in 2021, some two years later at
the time465. This indicates there was no imminence to the limitation expiry, such
as would justify the restriction on Dr Sanader’s rights as “necessary” to achieve
the legitimate aim of preventing the proceedings becoming statute barred –
even where it might be capable of justification closer to the point of expiry. We
consider that the decision to appoint ex officio counsel in these circumstances
lacked adequate justification and was a violation of Dr Sanader’s Article 6(3)(c)
rights.

9.13 Far from setting out the grounds on which the Court found that the requirements
of Article 6(2) (see paragraph 9.4 above) were met, the Court presented the
decision as a fait accompli to the first Defendant. It transpired at the later
hearing that the order had been made by the deputy President of the Court466.
No written reasons were provided by her, and according to Dr Sanader’s
lawyer, the deputy President rendered her decision without reviewing the record
of the case and without requesting a single ground for the Judge’s
statements467.

9.14 Ms Sloković stated that the Judge, in her statement of reasons that she gave
to the deputy President, had misrepresented both her condition (her
“sedimentation”468 was wrongly said to be 20 when it was in fact 63) and that of
her colleague (who was described as having had leg surgery when in fact he
was having the operation on the hearing date).

9.15 The order was made after Judge Štampar Stipić had ordered the Croatian
Health Insurance Fund to investigate whether Ms Sloković’s absence was

462 See e.g. Hanževački v Croatia, no. 17182/07, 16.4.2009, where the ECtHR found a violation of
Article 6 where an adjournment had wrongly not been granted when the attorney had showed good
cause through notifying the court that he was unwell.
463Articles 25 and 26 CPA/08.
464 MHT 18.2.2019, pg. 6.
465 MHT 18.2.2019, pg. 10.
466 MHT 18.2.2019, pg. 4.
467 MHT 18.2.2019, pg. 6.
468 A blood test that detects and monitors inflammation in the body.

96
justified. The investigation concluded that her absence was justified but
nonetheless the Judge thereafter ordered disclosure of Ms Sloković’s medical
reports. Although the judge stated that she only ordered records relating to date
of the Court hearing, she apparently was put in possession of Ms Sloković’s
entire medical file, and she made no apparent attempt to immediately return the
rest of the records or give an undertaking that they had not been viewed 469.

9.16 Ms Sloković considered that this represented a violation of her rights (see
paragraphs 10.30ff below) as well as an imputation on her honesty and integrity
(“You were presuming that I lied and that I made up a situation, but it wasn’t so
…”)470. The Court made it clear that it was accusing her of deliberately delaying
the proceedings in order to bring about the expiry of the limitation period (“so
by acting like that, you want to achieve that [this case] becomes barred by the
statute of limitations, but you will not succeed in that”471). Such an accusation
by the finder of fact in criminal proceedings must inevitably raise issues
concerning the impartiality of the tribunal. Consequently, Dr Sanader’s legal
team applied to Judge Štampar Stipić to recuse herself from the trial. This
application was dismissed by Judge Turudić (see paragraphs 5.78 to 5.82
above).

Adequate time and facilities to prepare defence

9.17 In addition to the issues raised above in respect of the decision to appoint the
ex officio lawyer at all, there is the further issue of whether the appointed lawyer,
even if lawfully imposed, had been given adequate time and facilities to prepare
Dr Sanader’s defence.

9.18 Initially the Court gave the lawyer eight days to familiarise himself with the case:
Dr Sanader requested that that he be granted “adequate time” (wrongly
reported by the Judge for the Court minutes as “15 days”472). Following his
appointment on 14.2.2019, the appointed lawyer requested an adjournment of
“at least three months” as the record at that stage ran to approximately 10,500
pages473 – “in order for me to be able to duly fulfill my duties that are given to
me by the decision on my appointment as the court-appointed defense attorney,
instead of me just being formally present so that that the defendant’s rights are
only formally protected, I request that the hearing is adjourned until I get familiar
with the record of the case, since otherwise, I cannot participate in this hearing
at all”474.

9.19 The Panel Chair held that one month was sufficient as “Ms Sloković is present,
and expects her to be present during all hearings” and expressed the hope that
the defence attorney Čedo Prodanović would also soon be able to attend475. In

469 MHUT 18.2.2019, pg. 5.


470 MHUT 18.2.2019, pg. 5.
471 MHUT 18.2.2019, pg. 7.
472 MHUT 8.2.2019, pg. 4.
473 MHT 18.2.2019, pg. 1.
474 MHT 18.2.2018, pg. 2.
475 MHT 18.2.2019, pg. 2.

97
such circumstances it must be considered debatable whether the grounds for
appointing the ex officio lawyer can have been made out.

9.20 The Chair did not however adjourn the proceedings but held that the appointed
lawyer could familiarise himself with the case over the following month,
attending all the hearings after which time he would be ready to represent the
Defendant “on his own”476.

9.21 Whether the ex officio lawyer did in fact have sufficient time and resources to
undertake his role in Dr Sanader’s defence will be considered in the Final
Report, we note however that the hearing on 9.12.2019 proceeded with only
the ex officio lawyer present on Dr Sanader’s behalf – Dr Sanader was himself
absent following his operation and Ms Sloković’s application for an adjournment
due to sudden ill health was refused477. As noted at paragraph 5.11 above, the
ECtHR has made clear that Article 6 requires that the defence have “necessary
time and facilities to effectively put all relevant defence arguments before the
Trial Court and thus to influence the outcome of the proceedings”478. Adequate
time and facilities are also recognised as an “essential element” of the right to
an impartial tribunal479. In this regard, our conclusions at chapter 12 below are
of importance.

476 MHUT 18.2.2019, pg. 3.


477 MHUT 9.12.2019, pg. 2
478 Gregačević v Croatia, n.o. 58331/09, 10.7.2012.
479 Barry Stephen Harward v Norway, HRC Communication no. 451/1991 (views adopted 15.7.1994),

para. 9.4.
98
10. PRESSURE ON LAWYERS

Applicable international standards

10.1 The ECtHR has recognised the impact on Article 6 of disciplinary sanctions
taken against lawyers in its case law (albeit in cases concerning violations of
Article 10 arising from such sanctions). In Nikula v Finland 480 , the Court
observed that “in certain circumstances, an interference with counsel’s freedom
of expression in the course of a trial could also raise an issue under Article 6 of
the Convention with regard to the right of an accused client to receive a fair trial.
‘Equality of arms’ and other considerations of fairness therefore also militate in
favour of a free and even forceful exchange of argument between the
parties”481.

10.2 The Court recognises that a balance must be struck between the need for the
court to maintain discipline and public confidence in the court, and the
concomitant duty of lawyers to contribute to the proper administration of justice
– and the right to freedom of expression (of the lawyers) and “defence counsel’s
duty to defend their clients’ interests zealously”482. In Nikula the Court rejected
the applicant’s argument that defence counsel’s freedom of expression should
be unlimited483 and re-iterated that:

“the special status of lawyers gives them a central position in the administration
of justice as intermediaries between the public and the courts. Such a position
explains the usual restrictions on the conduct of members of the Bar. Moreover,
the courts – the guarantors of justice, whose role is fundamental in a State
based on the rule of law – must enjoy public confidence. Regard being had to
the key role of lawyers in this field, it is legitimate to expect them to contribute
to the proper administration of justice, and thus to maintain public confidence
therein”484.

10.3 The Recommendation of the Committee of Ministers also recognises that


lawyers should “respect the judiciary and carry out their duties towards the court
in a manner consistent with domestic legal and other rules and professional
standards”485.

10.4 In Steur v The Netherlands 486 the applicant lawyer was censured (but not
sanctioned) by a Disciplinary Tribunal for making statements alleging pressure
had been put on his client by the police. The Court held that even where “no
sanction was imposed on the applicant – not even the lightest sanction, a mere
admonition” nonetheless by being censured, the applicant lawyer “was formally
found at fault in that he had breached the applicable professional standards”
which was recognised could make him “feel restricted in his choice of factual

480 Nikula v Finland, no. 31611/96, 21.3.2002.


481 Nikula, at para. 49, see also Steur at para. 37.
482 At para. 54.
483 At para. 49.
484 At para. 45 – see also Schöpfer v Switzerland (20.5.1998), Reports of Judgments and Decisions

1998-III, pp. 1052-53, §§ 29-30, with further references.


485 Committee of Ministers of the Council of Europe, Recommendation (2000) 21, principle III:4.
486 Steur v The Netherlands, no. 39657/98, 28.10.2003.

99
and legal arguments when defending his clients in future cases”487. The Court
held:

“It is true that no sanction was imposed on the applicant but, even so, the threat
of an ex post facto review of his criticism with respect to the manner in which
evidence was taken from his client is difficult to reconcile with his duty as an
advocate to defend the interests of his clients and could have a “chilling effect”
on the practice of his profession”488.

10.5 In contrast to the above considered cases of Nikula and Steur, in which neither
of the lawyers were sanctioned, in the current proceedings both counsel were
subject to substantial fines. In line with the reasoning of the Court considered
above, a fortiori, Article 6 is impacted by the conduct of the Panel which, in
addition, is the actual Trial Court.

10.6 The importance of protection of the independence of defence lawyers as


integral to a fair trial is recognised in the UN Basic Principles on the Role of
Lawyers489 and by the Committee of Ministers of the Council of Europe and
other regional bodies: 490 the Basic Principles set out the lawyer’s duty to
“always loyally respect the interests of their clients”491 and the duties on the
authorities to ensure they are able to discharge this duty:

“Governments shall ensure that lawyers (a) are able to perform all of their
professional functions without intimidation, hindrance, harassment or improper
interference (b) are able to travel and to consult with their clients freely both
within their own country and abroad; and (c) shall not suffer, or be threatened
with, prosecution or administrative, economic or other sanctions for any action
taken in accordance with recognized professional duties, standards and
ethics”. (Principle 16) (emphasis added)

“… where the security of lawyers is threatened as a result of discharging their


functions, they shall be adequately safeguarded by the authorities”. (Principle
17)

10.7 The prohibition on the threat or imposition of any “administrative, economic or


other sanction” for any action taken in accordance with a lawyer’s professional
duties is echoed in the Recommendation of the Committee of Ministers of the
Council of Europe urging governments of member states to “take or reinforce
all measures they consider necessary with a view to implementing the freedom
of exercise of the profession of lawyer”. For instance, “lawyers should not suffer
or be threatened with any sanctions or pressure when acting in accordance with
their professional standards”492.

487 Steur, at para. 29.


488 Steur, at para. 44.
489 UN Basic Principles on the Role of Lawyers (adopted in 1990 by the Eighth United Nations Congress

on the Prevention of Crime and the Treatment of Offenders).


490 Council of Europe’s Recommendation No. R (2000) 21 of the Committee of Ministers to Member

States on the freedom of exercise of the profession of lawyer; see also the Principles and Guidelines
on the Right to a Fair Trial and Legal Assistance in Africa.
491 Principle 15 of the UN Basic Principles on the Role of Lawyers.
492 Recommendation (2000) 21, Principle I:4.

100
10.8 In addition, the UN Principles require that lawyers “enjoy civil and penal
immunity for relevant statements made in good faith … in their professional
appearances before a court …”493. Codes of professional conduct for lawyers
“cannot foresee disciplinary measures for carrying out lawful professional
duties such as representing a particular client or making a statement in
court”494.

10.9 Disciplinary proceedings against lawyers must conform to international law.


The requirements of due process establish that complaints against lawyers in
their professional capacity “shall be processed expeditiously and fairly under
appropriate procedures” and lawyers shall have “the right to a fair hearing,
including the right to be assisted by a lawyer of their choice”495; “disciplinary
proceedings against lawyers shall be brought before an impartial disciplinary
committee established by the legal profession, before an independent statutory
authority, or before a court, and shall be subject to an independent judicial
review”496 and the proceedings must be “determined in accordance with the
code of professional conduct and other recognized standards and ethics of the
legal profession and in the light of these principles”497.

Fining of defence counsel

Circumstances of the fining

10.10 On 19.2.2019, the Court imposed substantial fines on both defence counsel for
“breach of the peace and contempt of court”, such fines being “connected to
the need to discipline the parties and ... necessary in the given situation for the
unhindered implementation of the hearing”.

10.11 These fines were imposed in a hearing to which the public and the media (and
the Croatian member of the Monitoring Team) were excluded, although the
Court minutes of 19.2.2019 do not record that the proceedings continued in
private and is limited in its record of submissions made or the basis for decision:

“Defense attorney of the first defendant Jadranka Sloković raised her voice at
the court and raised her voice at the Chairwoman of the panel while defense
attorney of the second defendant Laura Valković accused Chairwoman of the
panel that she does not know what the defense and defendants’ rights are and
she teaches Chairwoman of the panel in that regard.

Therefore the panel issued a decision – based on Article 396. § 1 of the CPA/08
– defense attorney of the first defendant Jadranka Sloković and defense

493 Principle 20 of the UN Basic Principles on the Role of Lawyers.


494 See Article 85 of the Draft Universal Declaration on the Independence of Justice (Singhvi
Declaration), which states that “No lawyer shall suffer or be threatened with penal, civil,
administrative, economic or other sanctions by reason of his having advised or assisted any client
or for having represented any client’s cause” – to be taken in to account when implementing the UN
Basic Principles on the Independence of the Judiciary, pursuant to resolution 1989/32 of UN
Commission on Human Rights, forty-fifth session.
495 Principle 27 of the UN Basic Principles on the Role of Lawyers.
496 Principle 28 of the UN Basic Principles on the Role of Lawyers.
497 Principle 29 of the UN Basic Principles on the Role of Lawyers.

101
attorney of the second defendant Laura Valković are fined for an amount of
HRK 10,000.00 ca. [€1,350] each for insulting the Chairwoman of the panel and
the Court in general”498.

10.12 The reasons stated in the Court order (made pursuant to Article 396(1)
CPC/09499) differed from the above: the order now relied on the assertion that
both defence counsel told Dr Sanader to remain in the courtroom, “disregarding
thereby the fact that they had not been called upon to speak”, especially Ms
Laura Valković, “who does not represent the 1st defendant” and that Ms
Sloković raised her voice “shouting, saying among other things that the panel
president did not know what the rights of the defence were”. The reasoning in
respect of Ms Valković is now that she “joined in these allegations”.

10.13 In addition, the order recites that both counsel “interrupted the Panel President
by claiming she was asking leading questions”. The transcript does not show
either defence counsel interrupting any questions on the basis that they are
leading questions. Their only involvement prior to Dr Sanader asking for
proceedings to be halted for the day500 is limited to one occasion when they
request additional evidence given by the witness be entered into the Court
record501.

10.14 The transcript of the hearing shows that Ms Sloković made a (reasonable)
suggestion as to how they should proceed in light of the Tribunal’s disregard
for Dr Sanader’s right to be present, stating they should proceed and she would
raise an objection, as a result of which she was accused of “really creating
tensions”. Ms Sloković responded by saying, “You do not understand at all what
are the defendant’s rights. You really do not understand”, and thereafter
proceeded to attempt to raise the issue of the breach of Dr Sanader’s fair trial
rights that proceeding in his absence would entail. The Panel Chair responded
to her by stating that she knew what the Defendant’s rights were but would “not
allow their endless invoking”502.

10.15 Thereafter the Panel threatened to sit every day for one hour, notwithstanding
the protests of the lawyers that they had existing professional commitments.
The fines were imposed following Ms Sloković asking if she could say
something to the Chair, to which the Chair responded by “Don’t yell at me!”, Ms
Sloković responded further, “you’re yelling at me!” – which the Chair later
accepted she had done “[b]ecause [Sloković had] been preventing the hearing
…”:

“CHAIRWOMAN OF THE PANEL: Every day, we will hold a hearing for one
hour!

498 Both counsel have appealed the imposition and level of the fines to the Supreme Court. At the time
of writing the Report, they had not been notifed of any outcome.
499 The relevant part of Article 396 (1) of the CPC/09 provides: “If … defence counsel … disturbs order

or fails to comply with direction of the president of the panel concerning the maintenance of order,
the president of the panel shall warn him or punish him by a fine not exceeding HRK 50,000.00...”.
500 MHUT 19.2.2019, pg. 25.
501 MHUT 19.2.2019, pp. 12-13.
502 MHUT 19.2.2019, pg. 28.

102
LAURA VALKOVIĆ: No, we will not, because we have previously scheduled
hearings.

CHAIRWOMAN OF THE PANEL: No, you will not be able to do so!

LAURA VALKOVIĆ: You can’t harass us.

JADRANKA SLOKOVIĆ: You can’t be so violent.

LAURA VALKOVIĆ: All right, then do it, do it.

CHAIRWOMAN OF THE PANEL: I am deciding, the court is deciding


[interrupted]

JADRANKA SLOKOVIĆ: Can I tell you something!?

CHAIRWOMAN OF THE PANEL: Don’t yell at me.

JADRANKA SLOKOVIĆ: You are yelling!

CHAIRWOMAN OF THE PANEL: Fine her!

JADRANKA SLOKOVIĆ: Fine me!

CHAIRWOMAN OF THE PANEL: Fine the defense attorney of the first


defendant with HRK 10,000 for yelling at the court.

JADRANKA SLOKOVIĆ: All right. The judge has been yelling at me all the time
[interrupted]

CHAIRWOMAN OF THE PANEL: No, I have not been yelling at you


[interrupted]

JADRANKA SLOKOVIĆ: No. You have been yelling at me.

CHAIRWOMAN OF THE PANEL: Because you have been preventing the


hearing [interrupted]”

10.16 At no time is Ms Valković recorded on the transcript as “joining in the allegation”


that the Panel Chair did not know what the rights of the Defendant were,
although the Chair did question whether Ms Valković was a defence attorney:

“CHAIRWOMAN OF THE PANEL: Are you a defense attorney? Do you hear


yourself? Why are you looking at me all the time with a surprised expression?
Do you [interrupted]

LAURA VALKOVIĆ: That is my expression, you will have to get used to it.

CHAIRWOMAN OF THE PANEL: No, that is not your expression. Please go


ahead503”.

503 MHUT 19.2.2019, pg. 30.


103
10.17 The Chair wrongly and persistently asserted that Ms Valković “warned” the
President that she was recording – in fact it was Ms Sloković who stated “We
have everything recorded” in the context of the heated exchange with the Judge
as to who was shouting at whom (we have listened to the relevant recording)504:

“CHAIRWOMAN OF THE PANEL: Mr. cameraman, Ms. Laura Valković has


been recording the hearing all the time and has been warning me that she is
recording, so let the camera record you as well, since you are recording me.

LAURA VALKOVIĆ: I did not warn you.

CHAIRWOMAN OF THE PANEL: You did, you did.

LAURA VALKOVIĆ: But I [interrupted]

CHAIRWOMAN OF THE PANEL: Let it be recorded, so your yelling will be


heard, so it will be recorded on the cameras, due to which [interrupted]

LAURA VALKOVIĆ: Did I say that?

CHAIRWOMAN OF THE PANEL: Yes, you said that.

JADRANKA SLOKOVIĆ: Did she say that?

CHAIRWOMAN OF THE PANEL: You said that. Now, we will do the following.
No, no, no, just keep recording, everything is all right.

LAURA VALKOVIĆ: Then we will play the recording back, because I did not
say that.

CHAIRWOMAN OF THE PANEL: Yes, you said that.

LAURA VALKOVIĆ: No, I did not say that!

CHAIRWOMAN OF THE PANEL: We will hear everything you said. You said
that.

LAURA VALKOVIĆ: I did not say that.

CHAIRWOMAN OF THE PANEL: Yes, you said that.

LAURA VALKOVIĆ: No, I did not!”

10.18 During the course of the hearing, the Panel Chair alleged that Ms Sloković was
in some way deliberately obstructing (“strongly hindering”) the proceedings,
although the Chair appears to accept that an objection to the proceedings
continuing in Dr Sanader’s absence would have some validity:

“JADRANKA SLOKOVIĆ: We have everything recorded [interrupted]

504 MHUT 19.2.2019, pg. 29.


104
CHAIRWOMAN OF THE PANEL: Feel free to record, moreover, feel free to
publish it. You have been strongly hindering the conducting of these proceedings
[interrupted]

JADRANKA SLOKOVIĆ: No, I have not been hindering.

CHAIRWOMAN OF THE PANEL: You have been hindering.

JADRANKA SLOKOVIĆ: Please let me ask you just one thing.

CHAIRWOMAN OF THE PANEL: You have been hindering.

JADRANKA SLOKOVIĆ: The hearing can be held. Let the entire hearing be held
[interrupted]

CHAIRWOMAN OF THE PANEL: No, no. So that you can say that the defendant
can’t [interrupted]

JADRANKA SLOKOVIĆ: Please just record in the minutes that we are


requesting a medical examination of Mr Sanader505”.

10.19 Insinuations of misconduct had also been made by the Chair at the hearing the
previous day when Ms Sloković sought the Chair’s recusal following the
imposition of the ex officio lawyer (“This panel will not allow the proceedings
and ourselves to be manipulated … you want to achieve that [this case]
becomes barred by the statute of limitations, but you will not succeed in
that”506.) and threatened her with the costs of the hearing personally if she
persisted in trying to defend her professional reputation507.

10.20 A suspicion of misconduct must also underlie the Court’s order requiring
disclose of Ms Sloković’s medical records (see further below), namely that she
had feigned illness in order to manipulate the process of the Court to secure an
improper advantage to the second Defendant508.

Legal assessment

10.21 Serious allegations of misconduct of trial counsel made by the Trial Judge raise
fundamental issues of impartiality – particularly when, as here, the tribunal has
allied the outcome for the Defendant to the lawyer’s conduct (the Panel Chair
told Ms Sloković that by her “requesting of the recusal of the panel while stating
God knows what reasons, you are only causing harm to the first defendant”509;
see paragraphs 5.78 to 5.82 above) – and where they arise in response to
defence counsel’s attempts to carry out their professional duty to represent their
client’s interests fearlessly.

10.22 In assessing the current proceedings, we take the view that Ms Sloković’s
behaviour in suggesting the Judge did not understand the Defendant’s rights is

505 MHUT 19.2.2019, pg. 29.


506 MHUT 18.2.2019, pg. 7.
507 MHUT 18.2.2019, pg. 7.
508 MHUT 18.2.2019, pg. 7.
509 MHUT 18.2.2019, pg. 10.

105
appropriately categorised as forceful argument in zealous defence of her
client’s interests rather than personal insult. This is supported by ECtHR
pratice, for example, in W.R. v Austria510 (in which counsel had described the
opinion of a judge as “ridiculous”, wrongly accused the judge of having made
incorrect entries in the records and in a civil case repeatedly interrupted the
judge and put questions to the other party to the proceedings without having
obtained leave to do so), and Mahler v Germany 511 (where counsel had
asserted that the prosecutor had drafted the bill of indictment “in a state of
complete intoxication”). This has been confirmed in Nikula v Finland512 where
counsel’s assertion about the extent of the Judge’s knowledge of fair trial rights
took place in a private session of the court proceedings (as opposed to being
made to the media) from which the public had been excluded513.

10.23 From the transcript it appears that Ms Sloković defended her assertion of the
Defendant’s rights vigorously in exchanges which became heated, in the
context where the Panel Chair’s own behavior fell below expected standards of
judicial conduct 514 . Further, the allegation that counsel “elevated her voice”
must be considered in the context where the Judge seemingly admitted that
she herself had raised her voice at Ms Sloković. We have listened to the audio
recordings and voices were plainly raised on both sides.

10.24 It is not clear from the Court’s reasons and consideration of the transcript
precisely what Ms Valković did that was thought to merit the fine imposed on
her.

10.25 In our view, the imposition of a financial penalty on the lawyers for the first and
second Defendants by the Panel Chair in the manner set out above violates the
UN Basic Principles and the Recommendations of the Committee of Ministers
by subjecting the lawyers to economic sanction for robustly endeavouring to
discharge their duty to protect their client’s interests.

10.26 The ‘hearing’ at which the fines were imposed lacked any semblance of due
process and the sanction was imposed during a heated exchange, and in haste

510 No. 26602/95, Commission decision of 30.6.1997 (unreported).


511 No. 29045/95, Commission decision of 14.1.1998 (unreported).
512 See Nikula v Finland, no. 31611/96, 21.3.2002, paras. 44-45, 48-9, 51-52; Radobuljac v Croatia, no.

51000/11, 28.6.2016, para. 66 (“What is more, although strongly worded, the Court is not convinced
that the applicant’s remarks – on the basis of which the domestic courts fined him for contempt of
court – were insulting [...]. His comments were aimed at the manner in which the judge was
conducting the proceedings [...] and thus, despite the Government’s arguments to the contrary, were
strictly limited to the judge’s performance in his client’s case, and distinct from criticism focusing on
his general qualities, professional or otherwise. In particular, the applicant’s remarks cannot be
compared to those which the Court or the former Commission found amounted to personal insult
...”).
513 See Nikula v Finland, above, para. 52; Schöpfer v Switzerland, no. 25054/94, 20.5.1998, para. 34,

and Prince v UK no. 11456/85, Commission decision of 13.3.986, Decisions and Reports 46, p. 222.
514 The Bangalore Principles of Judicial Conduct (2002) reaffirm the value of judicial integrity whereby

a Judge is required to “ensure that his or her conduct is above reproach in the view of a reasonable
observer”, Principle 3.1. Further, “The behaviour and conduct of a judge must reaffirm the people's
faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be
done”, Principle 3.2.
106
with reasons that were contradicted by the later revision in the justification for
the fine, as set out in the order.

10.27 Serious allegations of professional misconduct were levelled at Ms Sloković


during the course of the hearing and she was threatened with a further
substantial financial penalty – personal liability for the costs of the adjournment
hearing – if she persisted in trying to defend herself against the serious
allegations515.

10.28 Further, the imposition of financial and professional sanctions which were, in
effect, aimed at restricting counsel’s ability to discharge their duty to their clients
fearlessly, represents a potentially serious interference with the Defendants’
Article 6 rights. Such action places improper pressure on counsel through
creating a conflict between their client’s interests and their own – as
acknowledged in Steur v Netherlands where the Court held that even without
the imposition of any sanction any formal finding that a lawyer was at fault by
breaching the applicable professional standards “could have a negative effect
on the [lawyer], in the sense that he might feel restricted in his choice of factual
and legal arguments when defending his clients in future cases”516.

10.29 Given the potentially intimidatory nature of the sanctions imposed on counsel
in these circumstances, we consider that the duty of counsel to zealously
defend her client’s interests was obstructed by the conduct of the Trial Panel
and the Defendants’ right to a fair trial was compromised.

Ordering disclosure of defence counsel’s medical records

Circumstances of the order

10.30 As set in chapter 9 above, following Ms Sloković’s absence from the hearing on
8.2.2019 for medical reasons, the Panel Chair ordered her doctor to deliver her
full medical record to the Court.

10.31 Judge Štampar Stipić had already ordered the Croatian Health Insurance Fund
to investigate whether Ms Sloković’s absence was justified. The investigation
concluded that her absence was justified but nonetheless the Judge ordered
disclosure of Ms Sloković’s medical records. Although the Judge stated that
she only ordered records relating to date of the Court hearing, she apparently
was put in possession of Ms Sloković’s entire medical records, making no
apparent attempt to immediately return the rest of the records or to offer an
undertaking that they had not been viewed517.

10.32 Ms Sloković considered that the order for disclosure of her medical records
represented a violation of her rights as well as an imputation on her honesty
and integrity (“You were presuming that I lied and that I made up a situation,
but it wasn't so ...”518). The Court made it clear that it was accusing her of

515 MHUT 18.2.2019, pg. 7.


516 Steur v The Netherlands no. 39657/98, 28.10.2003, para. 29.
517 MHUT 18.2.2019, pg. 5.
518 MHUT 18.2.2019, pg. 5.

107
deliberately delaying the proceedings in order to bring about the expiry of the
limitation period (“so by acting like that, you want to achieve that [this case]
becomes barred by the statute of limitations, but you will not succeed in
that”519), as at paragraph 10.27 above, threatened her with the costs of the
hearing personally if she persisted in trying to defend her professional
reputation520.

Legal assessment

10.33 We consider that the forcible disclosure of highly confidential personal


information (relating potentially to, for example, counsel’s
mental/sexual/physical health) to an obviously hostile tribunal places wholly
improper pressure on defence counsel and is capable of having a “chilling
effect” on her capacity to do her job fearlessly.

10.34 This action impacts on Dr Sanader’s Article 6 rights, as discussed above, and
upon the independence and impartiality of the tribunal where the Judge
effectively has found that defence counsel is acting in bad faith by disbelieving
her when she said she had not attended Court due to illness. The Panel Chair
should not have considered that counsel was acting on instructions from Dr
Sanader to try to derail the trial by bringing about the expiry of the limitation
period, since the limitation period is only relevant against Mr Hernádi. We
cannot see any proper basis for the detrimental assumptions that the Panel
Chair appears to have made about Dr Sanader (see paragraphs 5.78 to 5.82
above).

10.35 Further, we consider that the use of the Court process to force disclosure of
highly private information relating to a lawyer who is engaged in discharging
her professional duties is a disproportionate interference with Ms Sloković’s
own Article 8 right to a private life. There had been no previous failure to attend
without reason, the investigation that was conducted into whether she had good
reason for her absence found that she did have good reason and less intrusive
measures were available.

519 MHUT 18.2.2019, pg. 7.


520 MHUT 18.2.2019, pg. 7.
108
11 DR SANADER’S HEALTH
Limited court sitting hours

11.1 Dr Sanader suffers from various chronic and serious health issues which limit
the amount of time that he is able to engage with the Court proceedings. Early
in the trial, medical evidence had been given to the Court that Dr Sanader is
only able to participate in the proceedings for three hours per day, with a 30-
minute break in between, for a maximum of two days a week. The expert agreed
that an additional 10-minute break may be necessary if Dr Sanader’s condition
changed, through for instance increased blood pressure, during the hearing521.

11.2 On 19.2.2019, Dr Sanader asked for the proceedings to finish for the day as he
did not feel well, and the one hour of proceedings that the Court had agreed to
had elapsed. The Court decided that the proceedings would continue after an
hour’s break, which led to Dr Sanader asking if he could provide further medical
details in the absence of the media. The public were thereafter excluded from
the proceedings, but discussion continued behind closed doors. The fact that
the public was excluded, and the matters raised by counsel, were not reflected
in the Court minutes (see paragraphs 8.7 to 8.9 and paragraphs 10.10 to 10.29
above).

11.3 During a heated exchange, the Panel Chair responded to Dr Sanader’s


counsel’s attempts to address the Court on the violation of the Defendant’s
rights that was occurring by the trial continuing in these circumstances by
accusing her of “creating tensions” and stated that she would not “allow the
endless invoking [of the Defendant’s rights]”522. The Court threatened to sit on
this case every day for one hour, in light of the limited period Dr Sanader’s
health permitted him to sit through the hearings, irrespective of the other
professional commitments of the defence lawyers523.

11.4 During the hearing, fines were summarily imposed (at an unprecedented level
in Mr Lazić’s experience) on both defence counsel by the Panel Chair after
which the Court continued to assert that it would resume the hearing in one
hour (see paragraphs 10.10 to 10.29 above).

Proceeding in Dr Sanader’s absence

11.5 On 13.9.2019, the Court was informed that Dr Sanader was absent due to
elective knee surgery. His counsel requested that the hearings not proceed in
his absence. The Court ordered a medical report on “whether the surgery was
urgent or could have been postponed for six months”524, with the expert to give
evidence at the next hearing.

11.6 On 19.9.2019, the doctor told the Court that in his opinion the surgery was
“elective”, thus it was not necessary to have at that stage and could have been

521 MHUT 25.2.2019.


522 MHUT 19.2.2019, pg. 28.
523 MHUT 19.2.2019, pg. 29.
524 See MHUT 19.9.2019, pg. 3.

109
postponed by six months. He expected that Dr Sanader’s rehabilitation would
take about three months, if everything went well. The Judge initially stopped Ms
Sloković from questioning the doctor as to whether there were any medical
indications for the surgery525 and ruled that as the opinion was the surgery was
not urgent the hearings would proceed in Dr Sanader’s absence.

11.7 Subsequently, the doctor accepted that Dr Sanader suffered from “severe
osteoarthritis” 526 and there were medical indications for surgery for “a
progressed knee arthrosis” which had started ten years previously and which
Dr Sanader reported caused him pain in both knees on moving. He accepted
that Dr Sanader may also experience pain when sitting527. The need for the
surgery had been identified by the orthopaedic specialist when he examined
him in June 2019 and informed him that the surgery was planned for
September528.

11.8 Dr Sanader’s lawyers applied to instruct an independent expert, on the grounds


that this expert had been instructed by the Court, but this was refused by the
Trial Judge529 (in fact she suggested Dr Sanader’s lawyer had libelled the Court
expert by saying his opinion was “subjective” which she said “meant false” 530).

11.9 The Court did not enter into a discussion with Dr Sanader’s lawyers as to
whether there were any alterations to the witness timetable that might lessen
the disadvantage to him 531 , but proceeded to hear key witnesses in his
absence. On 24.9.2019, his deputy, Mr Polančec, and his Minister of Finance,
Mr Šuker – the central witnesses in the transfer of share ownership to MOL –
gave evidence in Dr Sanader’s absence. Ms Sloković informed the Court that
she had no questions for these witnesses as they were to be asked by Dr
Sanader (given the nature of the witnesses, it is not unreasonable to assume
Dr Sanader, who has played an active part in the proceedings, would intend to
question his former close associates) – the Court said she could protect his
interests532.

11.10 Similarly, notwithstanding that the Court was informed on 3.10.2019 that Dr
Sanader’s lawyers envisaged that he would be able to attend in some 20 days,
the Court without further discussion decided that the evidence of the witness
Mr Hürlimann would be heard on 14.10.2019. The request to recall Mr
Hürlimann following his evidence on 7.11.2019 so that he could be questioned
by Dr Sanader was refused533.

11.11 The Judge also pressed defence counsel to state what evidence they intended
to call as part of their defence case while Dr Sanader was absent. Counsel

525 MHUT 19.2.2019, pp. 5 and 13.


526 MHUT 19.9.2019, pg. 13.
527 MHUT 19.9.2019, pg. 25.
528 MHUT 19.9.2019, pg. 21.
529 MHUT 19.9.2019, pg. 40.
530 MHUT 19.9.2019, pg. 43.
531 See e.g. MHUT 19.9.2019, pg. 47.
532 Mr Polančec, MHUT (part 1) 24.9.2019, pg. 3.
533 MHUT 7.11.2019, pp. 137 and 143.

110
explained that they were unable to present this as they required Dr Sanader’s
instructions but he was under treatment and they could not at that time reach
him. In any event they submitted that Croatian practice was for them to identify
such evidence after they have heard the prosecution evidence534.

11.12 When Mr Radošević gave evidence concerning conversations with Dr Sanader


(see paragraph 6.37 above), Dr Sanader’s lawyer asserted that he would not
continue to question the witness as Dr Sanader “was intending to do so and
cannot now”535.

11.13 The Judge approached her decision (it does not appear that any discussion
took place with the Panel) on the basis that as the operation was not an
‘emergency’, Dr Sanader had wrongly chosen to proceed – and would suffer all
the consequences of his decision. The Judge applied an overly strict literal
interpretation to Article 404 of the CPC/09 whereby “[i]f the accused has put
himself in a position or a condition due to which he could not stand the trial, the
trial shall be held in his absence”536.

11.14 The Judge indicated that her understanding of the term ‘elective’ was that the
defendant “chose something that he should not have”537. In fact, he had taken
the advice of the orthopaedic specialist who had examined him (while he was
in custody) and advised in June that surgery was planned for September. The
term “elective” was defined by the Court expert as meaning that “the surgical
procedure is not urgent and does not have to be immediately done but rather
may be postponed for a certain amount of time”538. No doubt this is why the
orthopaedic specialist advised Dr Sanader that surgery was planned for
September, rather than operating on him immediately. However, the fact that
an operation “could be carried out later” – in the somewhat loaded question of
the Court – is not the same question as to whether it is unreasonable of the
Defendant to undergo planned surgery.

11.15 The Judge gave no apparent consideration as to whether it was appropriate to


expect Dr Sanader to voluntarily continue to experience pain on a daily basis 539,
restricting his movement and amenity still further beyond that already imposed
by the prison environment (an environment that is likely to provide little positive
distraction from the pain), when he had the option to be pain-free going about
his daily life.

11.16 We consider that this consideration should have been balanced against the
disruption caused to the trial. Given that the Court, by its question to the expert,
considered that the trial proceedings were going to be completed within six
months, and thus well within the Court’s estimate of when the limitation period

534 MHUT 3.10.2019, pg. 72 – see Art. 419 of the CPA/08.


535 MHUT 30.9.2019, pg. 66.
536 Art. 404(2) of the CPC/09.
537 MHUT 19.9.2019, pg. 19.
538 MHUT 19.9.2019, pg. 21.
539 “‘It is not necessary to conduct this surgical procedure now and can be postponed for six months’.

For me, this is enough to have the hearing in accordance with Article 404 of the Law on Criminal
Proceedings”, Judge Štampar Stipić, MHUT 19.9.2019, pg. 5.
111
expired against the second Defendant in April 2021, it does not appear that
postponing the proceedings further would have caused significant disruption.

11.17 The issue of whether the requirements of Dr Sanader’s health condition were
adequately met to ensure his effective participation during the hearings at which
he was present will have to be assessed once the judgment has been delivered.
We are concerned, however, that the Court proceeded to hear evidence from
key witnesses in Dr Sanader’s absence, whom he was anticipating questioning.
This has denied him effective participation in his trial.

11.18 Further, once the Court had determined that it was necessary to proceed in Dr
Sanader’s absence, we consider that it would have been appropriate for the
Court to discuss with counsel how best she could ensure his effective
participation in the trial, notwithstanding his absence by, for instance,
discussing whether any changes to the witness timetable could usefully be
made.

11.19 We consider that Dr Sanader’s right to effective participation in the trial was
further impeded by the delay in the Court submitting his appeal of its decision
to proceed in his absence to the Supreme Court for almost two months540. We
note that this appeal remains pending to date.

11.20 Further, we are concerned that the Panel Chair recently considered that it was
appropriate to see Dr Sanader privately, in her chambers, without his lawyers
being present or informed – and seemingly without the rest of the Panel – and
without any (disclosed) recording of what transpired, and apparently questioned
him about his health. She denied that she had invited him and stated he came
of his own accord, although we are surprised that as a serving prisoner he has
such a facility541.

11.21 We see no reason why this information was not sought and received in the
ordinary way, in a private Court hearing with Dr Sanader’s lawyers present.
Presumably, information regarding Dr Sanader’s health and recovery was
relevant to a number of forthcoming important procedural decisions (such as
when Dr Sanader should be required to state his case) which the Judge
intended to take. His lawyers should clearly have been a party to the Court
receiving any relevant information on his current state of health, particularly
where the Court had otherwise chosen to proceed in his absence.

11.22 At the hearing on 16.12.2019, the Trial Chamber implemented the decision it
had made on 12.12.2019 to play the video recording of the first interrogation of
Sanader by USKOK (dated 30.8.2011), and to read the minutes of his evidence
at the first trial (dated 13.11.2012) in lieu of Dr Sanader giving live evidence. As
discussed in chapter 12 below, we consider this to be a fundamental violation
of both Dr Sanader’s and Mr Hernádi’s right to a fair trial.

540 The Chairwoman of the Panel confirmed on 14.11.2019 that the Panel submitted Dr Sanader’s
appeal re. continuance of the trial in his absence pursuant to Art. 404.2 of CPA/08 to the Supreme
Court on 13.11.2019.
541 See Davor Lazić report of hearing 4.12.2019 (Appendix 6).

112
12 PANEL’S RULINGS ON DEFENCE CASE AND CLOSING ARGUMENTS

Refusal to hear defence witnesses

12.1 On 12.12.2019, the Panel rejected the defence request to call any further
evidence. This included the evidence of four witnesses whom the Panel had
previously agreed would be called and all of whom had given evidence at the
original Sanader trial:

(a) Pál Kara, Head of MOL’s legal team at the relevant time, who was
described as giving evidence regarding the build-up of the relationship
between INA and MOL, and how difficult it would have been structurally
for MOL to pay a bribe;

(b) Ilona Fodor, a member of MOL’s negotiating team on the FASHA, who
would have been heard on 9.12.2019 had she not been unable to
attend due to her child being ill;

(c) Ratko Maček, who previously gave evidence that he attended all
meetings of the HDZ Presidency; and

(d) Mario Zlamalik, who previously gave evidence regarding the Družba
Adria project.

12.2 Also refused were requests by the defence that evidence be heard from:

a. Ábel Galácz, regarding the facts of the amendments to the SHA etc.;

b. Tomislav Dragičević, president of the Management Board of INA,


especially because several witnesses referred to him and his
participation in the negotiations;

c. Siniša Caktaš, regarding Finco Suisse and why the Share Purchase
Agreement for the purchase of Dioki Holding’s shares was cancelled;
and

d. Mikail Gutseriev, to respond to the media articles the prosecution


proposed to rely on regarding the likelihood that he would have invested
in a project that would have benefitted RussNeft during the relevant
period.

12.3 Mr Hernádi’s counsel further requested that David Dearman be called, an


expert forensic Chartered Accountant who had conducted an analysis of the
commercial relationship and the flow of funds between MOL and Hangarn and
between MOL and Ceroma (if any) for the period between 2008 and 2014, and
made a forensic investigation of MOL’s accounting system and its capacity to
launder money to pay a bribe (see paragraph 4.44 above), and that the witness
Slobodan Uzelac be called. She further proposed that USKOK provide official
data as to whether there was any agreement between USKOK and Mr Ježić

113
and that there should be a “confrontation” 542 between Mr Ježić and Mr
Hürlimann, and between Mr Hürlimann and Mr Fazakas, in relation to their
conflicting testimony.

12.4 The prosecution objected to all the proposed defence evidence, in relation to
Mr Dearman on the basis that he had “given evidence at the arbitration
proceedings” and further to the Panel’s ruling they could not use evidence from
those proceedings. They objected to Mr Gutseriev being called as he had “not
originally been proposed”, notwithstanding the defence were proposing him in
response to the newspaper articles which the prosecution applied to rely on a
few weeks previously.

12.5 The Panel Chair gave no reasons for rejecting all the proposed defence
evidence other than stating that “the decisive facts have been sufficiently
established through evidence presented so far” and “following the amended
indictment, the examination of the witnesses Pál Kara and Ilona Fodor is not
necessary anymore and therefore are dismissed as irrelevant as well”. She
further stated that “it has also been established that Ježić does not have the
status of an immunized witness”543.

Ruling relating to Dr Sanader

12.6 On 4.12.2019, Judge Štampar Stipić stated that Dr Sanader should present his
testimony on 16.12.2019 and if he did not attend, his evidence from the first trial
would be read. Dr Sanader’s defence counsel objected, to which the Judge
simply responded, “You can appeal!”544 (we note that this comment appears to
be have been omitted from both the official Court transcript and the Court video
recording of the proceedings).

12.7 On 12.12.2019, Judge Štampar Stipić received the expert medical opinion
commissioned by the Court of Professor Božidar Šebečić, MD, the Court
orthopaedics expert, based on a medical review of Dr Sanader in prison on
9.12.2019, in which he stated that Dr Sanader’s post-operative recovery was
progressing more slowly than expected and that he was not yet able to attend
hearings. He stated that Dr Sanader should be re-assessed after physiotherapy
had taken place.

12.8 During the hearing on 16.12.2019, Judge Štampar Stipić announced that the
Trial Chamber had received an e-mail from Dr Sanader in which he notified the
Court that due to his medical condition he would not be able to attend to give
his defence that day; however, he stated that he would be able to attend the
hearing in the second half of January 2020. Judge Štampar Stipić decided that
in light of i) the e-mail/statement of Dr Sanader, and ii) the expert findings and
opinion of the medical expert Božidar Šebečić, further combined with the fact

542 “Suočenje” in Croatian, where witnesses face each other and testify if their testimonies do not
correspond, Article 289 para. 4 of the CPC/09.
543 “Svjedok pokajnik” in Croatian, literally “witness repentant” (immunized witness; state’s witness): in

exchange for the information they deliver, “svjedok pokajnik” can receive shorter sentences for the
crimes, witness protection, new identity (rarely) and in some cases even freedom.
544 See report of Davor Lazić 16.12.2019 (Appendix 6).

114
that Dr Sanader had put himself in that medical state, the Trial Chamber would
rely on his previous testimony.

12.9 Ms Sloković objected that Dr Sanader’s rights to a fair trial were being violated
by this decision, as the surgical procedure had been medically indicated, thus
it was not correct to describe the operation as unnecessary or elective. Ms
Valković joined the objections of Dr Sanader’s defence counsel and argued that
the violations of Dr Sanader’s defence rights also violated the fair trial rights of
Mr Hernádi in these proceedings.

12.10 This decision was made by the Court notwithstanding that Dr Sanader’s appeal
against decision to continue the trial in his absence was (and is at the time of
writing) still pending before the Supreme Court. On enquiry by the defence,
Judge Štampar Stipić confirmed that the appeal had been sent to the Supreme
Court on 13.11.2019 and stated that although she had told them it was urgent,
they responded that they were still working on appeals from 2016. Accordingly,
Ms Sloković argued that the defence were thereby being denied an effective
remedy. Judge Štampar Stipić merely responded that everything was done in
accordance with Article 404 (2) of the CPA/08.

12.11 The video recording of the first interrogation of Dr Sanader by USKOK (dated
30.8.2011) was played in Court and the minutes of his evidence at the first trial
were read (dated 13.11.2012). Thereafter the Panel Chair declared the
evidentiary hearing closed545.

Ruling on closing submissions

12.12 The defence were also informed that they would present their closing
submissions on 19.12.2019, even though the transcripts of the key hearing on
12.12.2019 and of the witnesses on 16.12.2019 would not be available by then.

12.13 A further amended indictment was served on 12.12.2019 which, in the view of
the Court, apparently made substantial amendment to the prosecution case,
such that it negated the need for any further defence evidence. The Court
however did not clarify the manner in which they understood that the amended
indictment now meant such witnesses were no longer relevant. Nor did the
Court clarify its approach to limitation following the change in the date of the
supposedly corrupt agreement. Ms Valković argued that the indictment against
Mr Hernádi should be dismissed as the statute of limitation had expired in May
2019 (30.10.2008 + 10 years + 209 days = 27.5.2019). She argued that for the
criminal offence of bribery it was irrelevant when the payment was made (or
even if payment actually occurred) pursuant to the jurisprudence of both the
Supreme Court and the Constitutional Court. The prosecution argued that the
statutory limitation period against Mr Hernádi ran from the date of the payment
of €5 million, on 17.6.2009, and therefore had not expired.

12.14 The issue of limitation will have to be determined by the Trial Chamber in its
judgment and we shall consider this issue in our Final Report. We note that the

545 Report of Davor Lazić 16.12.2019 (Appendix 6).


115
Constitutional Court was clear that the offence is committed at the time of the
agreement (see, for example, paragraph 355: “only the bribe agreement
matters, whereas everything else from the aspect of the commitment of the
criminal offence is no longer relevant”; and paragraph 357: “According to the
Supreme Court, it would be the so-called ‘excess’ describing what occurred
after the respective criminal offences had been completed”).

Analysis and conclusions

12.15 A concluded assessment on the extent to which the defence was allowed to
call evidence and make its case must await our Final Report.

12.16 We feel compelled, however, to express our strong concern at each of the
rulings referred to above. Individually and taken together, they have the
potential to constitute a denial of the minimum rights that must be accorded to
defendants in criminal cases, notably:

 the right to obtain the attendance and examination of witnesses under the
same conditions as witnesses against him or her (Article 6(3)(d) ECHR);

 the right to have adequate time and facilities for the preparation of his or
her defence (Article 6(3)(b) ECHR: see further paragraph 5.11 above); and

 more broadly the principle of equality of arms, which as explained in


Dombo Beheer BV v Netherlands, requires that “each party must be
afforded a reasonable opportunity to present his case – including his
evidence – under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent”546.

12.17 So far as the wholesale refusal to hear further defence witnesses is concerned,
the Panel’s suggestion that the “decisive facts” had already been “sufficiently
established” (presumably on the basis of prosecution evidence) appears to be
a plain and obvious violation of the Defendants’ rights to advance their own
case and challenge the case against them. It suggests that the Panel has pre-
determined the outcome of the trial, and has closed its mind to the possibility of
challenge to the prosecution evidence.

12.18 The ruling relating to Dr Sanader appears to be a clear violation of his rights.
The justification for proceeding in his absence through ill-health – the ability of
his lawyers to protect his interests – is plainly inapplicable when it comes to Dr
Sanader giving his own evidence. Dr Sanader is a key witness in the case,
whose veracity must be decided upon by the Trial Panel. Yet the Panel has
shown itself ready to undertake this assessment without seeing Dr Sanader in
person or being able to question him themselves. The reading of his evidence
from the first trial is not an adequate substitute, not least because that evidence

546 Application no. 14448/88, Judgment of 27.10.1993. Dombo Beheer was a civil case: such a violation
is all the more serious in a criminal trial.
116
was not recorded and the Court minutes cannot be accepted as accurate547.
Further, the indictment has been substantially amended since the original trial
in respect of its material allegation, namely the date of the alleged agreement.

12.19 We note with concern that the Trial Chamber gave no (public) consideration as
to whether a delay of a few more weeks would be inappropriate given the
importance of Dr Sanader giving evidence in his own defence and in light of the
medical evidence that his rehabilitation was taking longer than expected. We
consider that it is incumbent on a fair tribunal to re-consider its ruling that a trial
should continue in a defendant’s absence at each material stage as what may
have been fair at one stage in the proceedings may well not be fair at other
stages. In the absence of a determination that the amended indictment has a
significant impact on the issue of limitation, such as has led the Panel Chair to
depart from her previously expressed view (and led to expiry between now and
the end of January), we consider that the Court’s decision to deprive Dr
Sanader of his right to give evidence in his own defence cannot be justified.

12.20 The ruling relating to Dr Sanader is also a clear violation of Mr Hernádi’s rights.
Dr Sanader’s evidence is central to Mr Hernádi’s defence, yet the Tribunal is
prepared to rely on evidence given by him in proceedings (when he faced a
different indictment) to which Mr Hernádi was not a party and had therefore
instructed no lawyer to ask questions of Dr Sanader that were pertinent to Mr
Hernádi’s defence.

12.21 Finally, the ruling on closing submissions is a manifest deprivation of the time
necessary to prepare an adequate defence in this highly complex case when it
was anticipated that further defence witnesses would be called. In particular:

 The prosecution evidence has been heard over 11 months and the case
file consists of approximately 15,000 pages.

 The evidence Mr Ježić gave on 12.12.2019 went to the heart of his


credibility, revealing significant unresolved inconsistencies with the
evidence of Mr Hürlimann, both of whom have accused the other of lying,
and both of whom cannot be believed. An accurate transcript of this
evidence, which was essential for the proper preparation of the closing
submissions, was not at that time available.

 An amended indictment had just been served.

 The final witness was scheduled to give his evidence only three days
before delivery of the closing submission.

547 e.g. there are significant differences between the minutes dictated by Judge Turudić in 2012 of Mario
Čerhak's evidence and the video of his testimony that is available online (see
https://www.youtube.com/watch?v=UYMUos64saI).

117
12.22 It is surely in the interests of the Court and clearly in the interests of justice that
the defence are able to present their case on all the evidence in the most
coherent and well-prepared manner. No justification has been provided for
curtailing the defence capacity to prepare for their closing submissions.

12.23 The rulings identified above are also in clear contrast to the flexibility shown by
the Tribunal to the prosecution, which was given ample time to present its case
and whose witnesses were frequently rescheduled to suit their availability and
their convenience.

118
INTERIM CONCLUSIONS

INTERIM CONCLUSIONS

USKOK’S CONDUCT OF THE PROSECUTION (Chapter 4)

USKOK investigative failures

(i) USKOK has failed to investigate pertinent areas of enquiry regarding Mr


Ježić’s credibility and its conduct of the investigation raises issues of
impartiality. Mr Ježić’s credibility is put in issue by his status as an
accomplice, his benefit of €5 million and his personal interest in Mr
Hernádi’s conviction [4.13]. A key area which has seemingly not been
subject to thorough investigation by USKOK is that of Mr Ježić’s financial
and corporate dealings with Xenoplast [4.14-4.22].

(ii) The reliance on Mr Hürlimann by USKOK as a witness of truth who


corroborates Mr Ježić without further investigation raises further issues of
impartiality. In breach of Croatian law, the identity of the man whom Mr
Hürlimann said had questioned him when he gave his statement to USKOK
was not disclosed on the face of the record of the minutes. It may also be
that Mr Ježić was present (with an unnamed lawyer, presumably Mr
Hanžeković) in the interview room when Mr Hürlimann gave his statement
[4.23].

(iii) Further, it is not clear where USKOK had obtained the Xenoplast
documents that were put to Mr Hürlimann in interview. Mr Ježić’s initial
statement was given on the same day but it is recorded as commencing
after Mr Hürlimann’s. It is unclear, therefore, where USKOK obtained the
details that they were able to put to Mr Hürlimann before the recorded
statement was given by Mr Ježić: we assume that they must have had a
private undisclosed discussion with Mr Ježić and/or Mr Hanžeković at which
they obtained the documents put to Mr Hürlimann, prior to them formally
questioning Mr Ježić ‘on the record’ [4.25-4.26].

(iv) Further, Mr Hürlimann’s role in the laundering of the alleged bribe proceeds
does not appear to have been fully scrutinised [4.27-4.30] and he
undermines Mr Ježić’s credibility in fundamental ways [4.31-4.36]. We are
concerned that USKOK has failed to investigate the corporate dealings of
Mr Ježić through a detailed examination of the accounts and business
documents (compounded by the Court’s refusal to order the production of
such evidence [4.37]) and in omitting to interview relevant witnesses [4.38].
We note the failures in the investigation identified by Sir David Calvert-
Smith in November 2013, which we consider to still be relevant to these
proceedings, concerning the absence of any independent evidence
introduced as part of the prosecution case as to how it was that Mr
Hürlimann had advised Mr Ježić that the first €5 million had arrived in
Xenoplast’s account [4.39]; the failure to investigate the evidence given by
Mr Fazakas and Mr Gutseriev to establish whether what Mr Fazakas had
said about the money could be proved or disproved [4.40-4.43]; and the
failure to consider the conclusions of MOL’s internal investigation which
119
INTERIM CONCLUSIONS

determined that, in the course of MOL’s business relationship with


Hangarn, there was no possibility that payments could have been
manipulated above market price in order to fund a bribe (a view shared by
the report author). These failures were compounded by the Court's refusal
to hear the evidence of Mr Dearman [4.44-4.45].

(v) We do not consider that the video from the Marcellino restaurant contains
any relevant evidence, but there are significant concerns about its integrity
and if it is to be relied upon by the Court, then expert examination would
have assisted the Court in its determination of its reliability [4.46-4.49].

Failure to give access to relevant material

(vi) We note the denial by USKOK of any grant of formal immunity, but we
consider that by Mr Ježić’s own admission, his actions made him vulnerable
to criminal charge as an accomplice (as did Mr Hürlimann’s). We are thus
concerned at the absence of disclosure or explanation regarding Mr Ježić’s
de facto immunity, and at the refusal of permission to Mr Hernádi’s counsel
to ask questions in that regard [4.50-4.60; 4.90f].

(vii) The coincidence in timing of Mr Ježić’s release from custody and the
provision of his (and Mr Hürlimann’s) statement implicating the Defendants,
and the unusual circumstances in which Mr Ježić had his passport returned
following his release from pre-trial detention, ought to have put any fair
tribunal on notice that full access to the case file was required. The Court
and defence needed access to the full facts, beyond a bare denial of any
deal and encompassing a detailed formal explanation of the reasons why
the HEP-Dioki proceedings were not progressed in eight years; why Mr
Ježić was released from custody; why his passport was returned to him
when the proceedings were ongoing; and the nature of all contact with Mr
Hanžeković (in particular regarding contact before the ‘official’ recorded
statement of Mr Ježić by which USKOK must have obtained details and
documents put to Mr Hürlimann; and explanation for his and Mr Ježić’s
unrecorded presence during Mr Hürlimann’s questioning) [4.61-4.70].

(viii) The circumstances which led to the failure by USKOK to freeze the assets
of Mr Ježić at the time he gave them his statement, so that he was able to
profit by €5 million from the alleged criminal activity, ought to have been the
subject of full disclosure and a statement of explanation provided by the
responsible senior State Attorney, so as to exclude any concern that their
failure was part of some agreement with Mr Ježić in connection with the
provision of his testimony [4.71-4.89; 4.78-79].

(ix) We note that the Court did not have the benefit of any evidence regarding
USKOK’s internal decision-making, nor initiate further enquiry as to, for
example, the decision to treat Mr Ježić and Mr Hürlimann as witnesses not
suspects, or decisions to seek some evidence (for example, the evidently
unreliable Marcellino CCTV) but not other evidence. Early stage
investigations have not been recorded/disclosed (such as the
circumstances in which Mr Hürlimann’s statement was taken) [4.93].

120
INTERIM CONCLUSIONS

(x) We consider that that the investigative and disclosure failures identified
above would cause a reasonable person to have doubts as to whether
USKOK has discharged its prosecutorial duties of competence and
impartiality in these proceedings [4.95]. We are compelled to conclude that
the conduct of the proceedings by USKOK, based on inadequate
investigation and inadequate access to the case file, falls below the
applicable standards [4.96].

INDEPENDENT AND IMPARTIAL TRIBUNAL: JUDGE TURUDIĆ AND TRIAL


CHAMBER (Chapter 5)

(xi) We consider that the requirement of an independent and impartial tribunal


is not satisfied by the Zagreb County Court, having regard to Judge
Turudić’s continued involvement in the proceedings, notwithstanding the
ruling of the Supreme Court. Judge Turudić has repeatedly publicly
undermined the decision of the Constitutional Court [5.18; 5.46] and he
gave the appearance of being personally and publicly allied with the
correctness of the original conviction [5.20]. Bias on his part, together with
other material accusations, have been identified by a number of sources
[5.22-5.44].

(xii) Judge Turudić has expressed views in the media on substantive trial
decisions, including limitation, which represent a serious interference with
fair trial rights [5.47; 5.50]. We consider that comments regarding limitation
by Judge Turudić represent a particular interference with the remit of the
Trial Chamber given that it was he who initiated the reference to the CJEU,
which he asserts stopped the limitation period from running [5.49].

(xiii) Further, Judge Turudić has continued to involve himself formally and
informally with procedural and trial management decisions, including
determining on appeal Dr Sanader’s counsel’s application for recusal of
Judge Štampar Stipić [5.52] and initiating the reference to the CJEU and
activation of the Second EAW [5.57-5.65].

(xiv) We consider that the requirement of independence and impartiality is


further not satified having regard to Judge Turudić’s role as the President
of the Zagreb County Court, as recognised by the Supreme Court in the
Šeparović proceedings [5.32-5.36].

(xv) We consider that the current Trial Chamber does not satisfy the
requirement of an independent and impartial tribunal due to the influence
exercised over the entirety of the Zagreb County Court by Judge Turudić,
as above [5.102].

(xvi) Further, there was no Article 6 ECHR compliant determination of either of


the recusal applications of Judge Štampar Stipić. In the first application,
Judge Turudić presided over Dr Sanader’s appeal and the Supreme Court
dimissed any further appeal on grounds of procedural techicality [5.77]. In
the second, the Trial Chamber rejected the defence request to even submit
the application for recusal [5.82]. We consider this to be a clear violation of
Article 6(1).
121
INTERIM CONCLUSIONS

(xvii) Finally, we consider that due to the manner of its conduct of the
proceedings, the Trial Chamber has failed to demonstrate the necessary
appearance of impartiality in respect of the decision to appoint the ex officio
lawyer [5.83]; fining the defence counsel and ordering disclosure of the
lawyer’s personal medical records [5.87; 5.104]; its response to Dr
Sanader’s health issues [5.83]; its insinuations of misconduct by the First
Defendant and counsel [5.84-5.87]; its hostility towards the Defendant and
counsel [5.88-5.92]; its restrictions on the admission of relevant evidence
[5.93-5.101; 5.104]; and its recent denial of the Defendants’ right to call
relevant witnesses and to have sufficient time to present their cases [5.83].

ILLEGITIMATE REGARD TO THE “INTERESTS OF CROATIA” (Chapter 6)

Conduct inconsistent with the Constitutional Court’s ruling

(xviii) We are concerned that the Constitutional Court’s ruling, to the effect that
whether the FASHA and GMA were in the interests of Croatia is a matter
that the Court is constitutionally prohibited from determining, has not been
grasped by the prosecution or Trial Chamber, either for the scope of the
indictment or for the relevance of evidence [6.3-6.5]. In consequence,
they have: failed to provide clarity as to the case that the Defendants have
to meet [6.6-6.9]; admitted evidence that does not appear to be relevant
to the issues properly before the Court [6.10-6.15]; and acted in a manner
inconsistent with the Constitutional Court’s ruling.

(xix) The majority of the witnesses in these proceedings may be considered


economic or political witnesses who give testimony as to whether the
FASHA and GMA were a ‘good deal’ for Croatia, including a number who
give evidence as to their subsequent effect, in particular the relinquishing
of control of the Supervisory Board of INA. We consider that the evidence
that has been given by the politicians involved with the FASHA and GMA
negotiations invites a determination by the Court of precisely the issue
that was prohibited by the Constitutional Court’s judgment [6.10-6.15].

(xx) The failure of the Court to provide clarity as to the relevance of such
witnesses has disadvantaged the defence by leaving them ignorant of the
extent of the challenge required – because their case is such witnesses
are not relevant following the Constitutional Court’s ruling – but unaware
how relevant the Court considers their evidence. This has a direct impact
on the Defendants’ effective participation in the trial and ability to
challenge prosecution witnesses [6.11].

Consequences for the fairness of proceedings

(xxi) We have appraised these errors against the strength of the prosecution
case on improper influence as a whole; and in light of the absence of other
convincing evidence that can be relied upon. We consider that the evidence
has demonstrated that MOL’s increased control was judged beneficial to
INA at the time [6.18-6.25]; there was seen to be no viable alternative to
the FASHA and GMA (in which case no bribe would have been necessary)
[6.26-6.28]; and there is no evidence of improper influence by Dr Sanader
122
INTERIM CONCLUSIONS

[6.29-6.42]. We consider that the errors detailed above of the prosecution


and Trial Chamber are remarkable, and of crucial significance for the
fairness of proceedings [6.46]. We will return to them in our Final Report.

RIGHT TO A PUBLIC TRIAL (Chapter 7)

Exclusion of public

(xxii) The exclusion of the public from the hearing on 19.2.2019 when the Court
took the punitive decision to fine the defence lawyers, without any purported
justification, amounted to a violation of Article 6 ECHR [7.4-7.9].

Denial of access of Monitoring Team to interpretation

(xxiii) The prohibition on access to privately funded interpretation facilities is of


potential relevance to the right to a public trial [7.12].

RIGHT TO EFFECTIVE PARTICIPATION (Chapter 8)

(xxiv) The Court at both the pre-trial stage and during the main trial hearing has
failed repeatedly to either rule on matters or provide any reasons for
decisions taken. The lack of reasoning of judicial decisions amounts to a
violation of the right to effective participation in the trial and is a violation of
Article 6(1) [8.5-8.6]. We note that that there are issues regarding the
completeness and accuracy of the official Court transcripts and minutes.
The accuracy of the Court record will be relevant to any appeal pursued in
the event of a conviction [8.7-8.9].

DENIAL OF LAWYER OF OWN CHOOSING (Chapter 9)

(xxv) The imposition of the ex officio lawyer on Dr Sanader by the Court violated
his fundamental right under Article 6(3)(c) ECHR to be defended by a
lawyer of his own choosing [9.7]. Dr Sanader was denied even the right to
address the Court on whether such a significant interference with his Article
6(3)(c) ECHR rights was justified and his lawyers were not given the
opportunity to make representations before any final decision was made,
as they should have been given that he was without legal representation at
that time [9.8].

(xxvi) Effective representation by this lawyer would force him to provide privileged
information in a highly sensitive case involving national interests to a state-
appointed lawyer. The purported justification that the limitation period would
expire against the second Defendant in some two years’ time did not justify
the serious interference with Dr Sanader’s right to be represented by a
lawyer of his own choosing, at that time [9.12-9.13].

(xxvii) Further, the Court made the serious accusation that Dr Sanader’s lawyers
were deliberately delaying the proceedings in order that they became
statute-barred against the second Defendant. We consider that such a
serious accusation of professional misconduct should not have been made
without a firm evidential basis, which was not evident [9.9-9.11]. There is
123
INTERIM CONCLUSIONS

the further issue as to whether the appointed lawyer was been given
adequate time and facilities to prepare Dr Sanader’s defence, as to which
chapter 12 is also relevant [9.17-9.21].

PRESSURE ON LAWYERS (Chapter 10)

Fining of defence counsel

(xxviii) In our view, the imposition of a financial penalty on the defence lawyers for
the first and second Defendants by the Panel Chair violated the UN Basic
Principles and the Recommendations of the Committee of Ministers by
subjecting the lawyers to economic sanction for robustly endeavouring to
discharge their duty to protect their client’s interests. The sanctions were,
in effect, aimed at restricting the lawyers’ ability to discharge their duty to
their clients fearlessly, and represent a serious interference with the
Defendants’ Article 6 ECHR rights. Such action places improper pressure
on counsel through creating a conflict between their client’s interests and
their own [10.21-10.25].

(xxix) The ‘hearing’ at which the fines were imposed lacked any semblance of due
process and the sanction was imposed during a heated exchange and in
haste with reasons that were contradicted by the later revision in the
justification for the fines, as set out in the order [10.26].

(xxx) Serious allegations of professional misconduct were levelled at Ms Sloković


during the course of the hearing and she was threatened with a further
substantial financial penalty – personal liability for the costs of the
adjournment hearing – if she persisted in trying to defend herself against
the serious allegations [10.27].

(xxxi) Given the potentially intimidatory nature of the sanctions imposed on


counsel in these circumstances, we consider that the duty of counsel
zealously to defend their client’s interests was obstructed by the conduct of
the Trial Panel and the Defendants’ right to a fair trial was compromised
[10.28-10.29].

Ordering disclosure of defence counsel’s medical reports

(xxxii) We consider that the forcible disclosure of highly confidential personal


information (relating potentially to, for example, counsel’s
mental/sexual/physical health) to an obviously hostile tribunal places wholly
improper pressure on defence counsel and is capable of having a “chilling
effect” on her capacity to do job fearlessly [10.33].

(xxxiii) The action was a violation of Dr Sanader’s Article 6 rights and upon the
independence and impartiality of the tribunal, which effectively found that
defence counsel was acting in bad faith by disbelieving her when she said
she had not attended Court due to illness. We cannot see any proper basis
for the detrimental assumptions that the Panel Chair appears to have made
about Dr Sanader [10.34].

124
INTERIM CONCLUSIONS

(xxxiv) Further, we consider that the use of the Court process to force disclosure
of highly private information of a lawyer who is engaged in discharging her
professional duties is a disproportionate interference with Ms Sloković’s
own Article 8 right to a private life. There had been no previous failure to
attend without reason, the investigation that was conducted into whether
she had good reason for her absence found that she did have good reason
and less intrusive measures were available [10.35].

DR SANADER’S HEALTH (Chapter 11)

(xxxv) The issue of whether the requirements of Dr Sanader’s health condition


were adequately met to ensure his effective participation will be assessed
at the conclusion of the trial. We are concerned that the Court proceeded
to hear evidence from key witnesses in Dr Sanader’s absence, which he
was anticipating questioning. This has denied him effective participation
in his trial [11.5-11.17]. We consider that this right was further impeded
by the delay in the Court submitting Dr Sanader's appeal of its decision to
proceed in his absence to the Supreme Court [11.19].

(xxxvi) We are concerned that the Panel Chair recently considered that it was
appropriate to see Dr Sanader privately, in her chambers, without his
lawyers being present or informed and seemingly without the rest of the
Panel. This occurred without any (disclosed) recording of what transpired,
and apparently involved questioning Dr Sanader about his health. We
consider that his lawyers should clearly have been a party to the Court
receiving any relevant information on Dr Sanader’s current state of health,
particularly where the Court has otherwise chosen to proceed in his
absence [11.20-11.21].

RULINGS ON DEFENCE CASE AND CLOSING ARGUMENTS (Chapter 12)

(xxxvii) While a concluded assessment of the defence case must await our Final
Report, we express our strong concern about the rulings of 12.12.2019
which have the potential severely and unacceptably to constrain the ability
of the defence to present evidence from relevant factual and expert
witnesses [12.1-12.5], by its decision to rely on Dr Sanader's testimony
given at the earlier trial, proceedings to which Mr Hernádi was not a party
and when he faced a different indictment, in lieu of live testimony[12.6-
12.11], and by its requirement that closing submissions be prepared to an
excessively short timescale [12.12-12.14].

(xxxviii) Those rulings appear to be in clear contravention of the minimum rights


that must be accorded to defendants in criminal cases, notably the right
to obtain the attendance and examination of witnesses under the same
conditions as witnesses against them, the right to have adequate time and
facilities for the preparation of their defence, and the principle of equality
of arms [12.15-12.23].

125
APPENDICES

126
APPENDIX 1

LIST OF ABBREVIATIONS

CC Croatian Criminal Code 2011

CCA Croatian Competition Authority (Agencija za zaštitu tržišnog natjecanja,


also known as the AZTN)

CFREU Charter of the Fundamental Rights of the EU

CJEU Court of Justice of the European Union

COI Central Office of Investigation of the Attorney General’s Office,


Hungary (Központi Nyomozó Főügyészség)

CPA/08 Croatian Criminal Procedure Act 2008

CPC/09 Croatian Criminal Procedure Code 2009

DC-S Independent Report on allegations of corruption against Dr Ivo Sanader


(former Prime Minister of the Republic of Croatia) and Zsolt Hernádi
(Chairman-Chief Executive Officer of the MOL Group), by Lord Blair of
Boughton QPM, Sir David Calvert-Smith and Robert Quick QPM,
November 2013

EAW European Arrest Warrant

ECHR European Convention for the Protection of Human Rights and


Fundamental Freedoms

ECtHR European Court of Human Rights

EU European Union

FASHA First Amendment to the INA Shareholders Agreement (January 2009)

GMA Gas Master Agreement (January 2009)

HDZ Croatian Democratic Union, political party (Hrvatska demokratska


zajednica)

HERA Croatian Energy Regulation Agency (Hrvatska energetska regulatorna


agencija)

HFP Croatian Privatisation Fund (Hrvatski fond za privatizaciju)

HOK Croatian Bar Association

127
HRC Human Rights Committee (International Covenant for Civil and
Political Rights)

INA INA-Industrija nafte d.d.

MOL MOL Magyar Olaj-és Gázipari Nyrt

MHM Main Hearing Minutes

MHT Main Hearing Transcript (official)

MHUT Main Hearing Transcript (unofficial)

PHM Preliminary Hearing Minutes

SHA INA Shareholders Agreement (2003)

USKOK Bureau for Combating Corruption and Organized Crime, Croatia (Ured
za suzbijanje korupcije i organiziranog kriminaliteta)

128
APPENDIX 2

TABLE OF CASES

1. Court of Justice of the European Union

Županijski Sud u. Zagrebu v Croatia, Case C-268/17 AY (25.7.2018)

2. European Commission of Human Rights

Boldea v Romania, no. 19997/02 (15.2.2007)

Can v Austria, no. 9300/81 (12.7.1984)

Connolly v UK, no. 27245/95 (26.6.1996)

Mahler v Germany, no. 29045/95 (14.1.1998, unreported)

Prince v UK, no. 11456/85 (13.3.1986)

W.R. v Austria, no. 26602/95 (30.6.1997, unreported)

X v UK, no. 7306/75 (6.10.1976)

3. European Court of Human Rights

Andersson v Sweden, no. 11274/84 (29.10.1991)

Baragiola v Switzerland, no. 17265/90 (21.10.1993)

Bryan v the United Kingdom, no. 19178/91 (22.11.1995)

Buscemi v Italy, no. 29569/95 (16.9.1999)

Can v Austria, no. 9300/81 (30.9.1985)

Dayanan v Turkey, no. 7377/03 (13.10.2009)

De Cubber v Belgium, no. 9186/80 (26.10.1984)

Dvorski v Croatia, no. 25703/11 (20.10.2015)

Ekbatani v Sweden, no. 10563/83 (26.5.1998)

Ferreira Alves v Portugal, no. 25053/05 (2.6.2007)

Garcia Alva v Germany, no. 23541/94 (13.2.2001)

Gregačević v Croatia, no. 58331/09 (10.7.2012)

Grieves v the United Kingdom, no. 57067/00 (16.12.2003)


129
Hadjianastassiou v Greece, no. 12945/87 (16.12.1992)

Hanževački v Croatia, no. 17182/07 (16.4.2009)

Jespers v Belgium, no. 8403/78 (14.12.1981)

Klimentyev v Russia, no. 46503/99 (16.11.2006)

Krestovskiy v Russia, no. 14040/03 (28.10.2010)

Kyprianou v Cyprus, no. 73797/01 (15.12.2005)

Langborger v Sweden, no. 11179/84 (22.6.1989)

Lavents v Latvia, no. 58442/00 (28.11.2002)

Martinie v France, no. 58675/00 (12.4.2006)

Mayzit v Russia, no. 63378/00 (20.1.2005)

Meftah and Others v France, nos. 32911/96, 35237/97 and 34595/97


(26.7.2002)

Menchinskaya v Russia, no. 42454/02 (15.1.2009)

Moiseyev v Russia, no. 62936/00 (9.10.2008)

Moreira Ferreira v Portugal (no. 2), no. 19867/12 (11.7.2017)

Navalnyy and Ofitserov v Russia, no. 78193/17 (21.12.2017)

Nechiporuk and Yonkalo v Ukraine, no. 42310/04 (21.4.2011)

Nikula v Finland, no. 31611/96 (21.3.2002)

Olujic v Croatia, no. 22330/05 (5.2.2009)

Padovani v Italy, no. 13396/87 (26.2.1993)

Piersack v Belgium, no. 8692/79 (1.10.1982)

Pretto and Others v Italy, no. 7984/77 (8.12.1983)

Radobuljac v Croatia, no. 51000/11 (28.6.2016)

Riepan v Austria, no. 35115/97 (14.11.2000)

Rostomashvili v Georgia, no. 13185/07 (8.11.2018)

Schöpfer v Switzerland, no. 56/1997/840/1046 (20.5.1998)

Schöpfer v Switzerland, no. 25054/94 (20.5.1998)

130
Schwarzenberger v Germany, no. 75737/01 (10.8.2006)

Steur v The Netherlands, no. 39657/98 (28.10.2003)

Sutter v Switzerland, no. 8209/78 (22.2.1984)

S.C. IMH Suceava S.R.L. v Romania, no. 24935/04 (29.10.2013)

Van de Hurk v the Netherlands, no. 16034/90 (19.4.1994)

Zhang v Ukraine, no. 6970/15 (13.11.2018)

4. Human Rights Committee

M. Gonzalez del Río v Peru, communication no. 263/1987, UN Doc.


CCPR/C/46/d/263/1987 (initial submission 19.10.1987; views adopted
28.10.1992, doc. of 2.11.1992)

Arvo O. Karttunen v Finland, communication no. 387/1989

Barry Stephen Harward v Norway, communication no. 451/1991 (views


adopted 15.7.1994, UN doc. CCPR/C/51/d/451/1991)

5. National Courts

5.1. Croatia

5.1.1. Constitutional Court

Constitutional Court Decision no. U-III-4149/2014 (24.7.2015)

5.1.2. Supreme Court

Supreme Court judgment no. I Kž-Us 91/10-6 (8.2.2011)

Supreme Court decision Croatia v Sanader no. I Kž-Us-94/13-10 (3.4.2015)

Supreme Court decision regarding exemption request in case no. K-Us-29/15


No. Su-IV-373/15-6 (24.9.2015)

5.1.3. County Court

First instance judgment of Zagreb County Court no. 7 K-US-26/11 (19.12.2012)

Decision of the President of Zagreb County Court on recusal of Judge Zdravko


Majerović no. 29 Su-1424/15 (23.12.2015)

Decision of the Zagreb County Court on separation of criminal trials against Dr


Sanader and Mr Hernádi, no. Kv I-Us-50/2017 (16.10.2017)

Decision of the Zagreb County Court on separation of the proceedings against


defendant Ivo Sanader, nos. Kv-1-Us-50/2017 and K-Us-29/15 (16.10.2017)

131
Order re appointment of the judges in charge in proceedings against Dr
Sanader no. 40 Su-30/17-172 (7.12.2017)

Decision accepting the request from Judge Kvaternik, no. 29 Su-2058/2017


(8.12.2017)

Decision of the Zagreb County Court rejecting the request of the Defendant
Hernádi to dismiss Judge Štampar Stipić, no. 29 Su-1204/18-2 (17.9.2018)

Decision rejecting the request for exclusion of Judge Turudic, no. SU-IV-359
2018-2 (19.9.2018)

Order rejecting the motions for the defense of both accused referred to in the
submission of 13.9.2019 (30.9.2019)

5.1.4. Municipal Court

Bjelovar Municipal Court judgment no. Pp P-1231/2019-28 (20.8.2019)

5.2. Hungary

Bánhegyi v Hernádi, Metropolitan Court of Budapest, no. 10.B.2044/2013/17,


(26.5.2014)

Bánhegyi v Hernádi (on appeal), Budapest Tribunal of Justice, no.


3.Bf.275/2014/7 (3.12.2014)

6. International sources and documents

International Covenant on Civil and Political Rights (ICCPR)

UN Basic Principles on the Independence of the Judiciary

UN Guidelines on the Role of Prosecutors

UN Basic Principles on the Role of Lawyers (adopted in 1990 by the Eighth


United Nations Congress on the Prevention of Crime and the Treatment of
Offenders)

Universal Charter of the Judge approved by the International Association of


Judges (IAJ) on 17 November 1999.The Bangalore Principles of Judicial
Conduct (2002) (endorsed by the UN Human Rights Commission (59th session,
April 2003)

UN Social and Economic Council Resolution 2006/23: ‘Strengthening Basic


Principles of Judicial Conduct’

The UN Office on Drugs and Crime ‘Commentary on the Bangalore Principles


of Judicial Conduct’, September 2007

EU Directive 2012/13

132
Council of Europe Recommendation No. R (19) of 2000 of the Committee of
Ministers to Member States on the Role of Public Prosecution in the Criminal
Justice System

Council of Europe Recommendation No. R (21) 2000 of the Committee of


Ministers to Member States on the Freedom of exercise of the profession of
lawyer

Council of Europe, Recommendation No. R (94) 12 of the Committee of


Ministers to Member States on the Independence, Efficiency and Role of
Judges, 13.10.1994

European Guidelines on ethics and conduct for public prosecutors (the


Budapest Guidelines) (adopted by the Conference of Prosecutors General in
Europe on 31.5.2005)

Resolution on Respect and strengthening Independence of the Judiciary


(adopted April 1996 at 19th session of the African Commission on Human and
People’s Rights)

The Beijing Statement of Principles of the Independence of the Judiciary in the


LAWASIA Region (the Beijing Principles)

International Association of Prosecutors’ ‘Statement of standards of


professional conduct for all prosecutors and of their essential duties and rights’
(adopted in April 1999)

Draft Universal Declaration on the Independence of Justice (the Singhvi


Declaration) (pursuant to resolution 1989/32 of UN Commission on Human
Rights, forty-fifth session)

133
APPENDIX 3

LIST OF RELEVANT INDIVIDUALS AND COMPANIES

Individuals

Áldott Zoltán Áldott (President of the Management Board of INA since


2010)

Bács Zalán Bács (Financial Manager at MOL from January 2007 to


June 2009)

Bebić Luka Bebić (President of Croatian Parliament from 2008 to 2009)

Bošnjaković Dražen Bošnjaković (Minister for Justice in the Croatian


Government in 2008)

Čerhak Mario Čerhak (owner of the Marcellino restaurant)

Dragić Krešimir Dragić (Junior Minister at the Croatian Ministry of


Finance, attended two negotiating committee meetings in place
of Mr Šuker)

Dropulić Marina Matulović Dropulić (Minister of Environmental Affairs,


Planning and Construction in the Croatian Government)

Duvnjak Vedran Duvnjak (President of the HFP until 2011)

Fazakas Imre Fazakas (Hungarian/Russian businessman)

Galić Tomo Galić (President of HERA from 2005 to 2010)

Gutseriev Mikhail Gutseriev (Russian businessman)

Hernádi Zsolt Hernádi (Chairman-Chief Executive Officer of MOL since


2001)

Horaček Branimir Horaček (Director of Energy Directorate, Croatian


Ministry of Economy, from 2008 to 2010; involved with
negotiations to separate the gas business)

Horvat Zlatko Horvat (staff member of the CCA)

Horváth Ferenc Horváth (member of the Executive Board of MOL since


2003)

Hürlimann Stephan Hürlimann (Swiss tax adviser)

Ježić Robert Ježić (Croatian businessman)

134
Kosor Jadranka Kosor (Vice President of Crotia and Minister of Family
Affairs and Veterans from 2008 to July 2009; Prime Minister of
Croatia from 2009 to 2011)

Krešić Ivan Krešić (appointed to INA Supervisory Board, on nomination


of the Republic of Croatia, in 2011)

Lučić Igor Lučić (Croatian Government official; member of negotiating


Committee)

Marković Zoran Marković (Croatian lawyer)

Mayer Davor Mayer (appointed to INA Management Board in 2011)

Mesić Stjepan Mesić (President of Croatia from 2000 to 2010)

Novak Zvonimir Novak (Croatian Government official; Chief of Cabinet


to Mr Polančec)

Petrović Josip Petrović (member of the Management Board of INA until


2011)

Pogarčić Zdenka Pogarčić (Deputy, from 2001, then Head, from July 2008,
of the Legislation Office at the Croatian Parliament)

Polančec Damir Polančec (Deputy Prime Minister of Croatia and Minister of


Economy from 2005 to 2009)

Radošević Branko Radošević (President of the Management Board of


Plinacro until 2009)

Sanader Dr Ivo Sanader (Prime Minister of Croatia from 2003 to 2009)

Šebečić Božidar Šebečić (medical expert)

Spevec Olgica Spevec (President of the CCA since 2003)

Štern Davor Štern (President of the Supervisory Board of INA from 2011
to 2012)

Šuker Ivan Šuker (Croatian Minister of Finance from 2003 to 2010)

Tamás Katalin Tamás (MOL employee from 2005, conducted gas


negotiations)

Trnokop Tanta Vesna Trnokop Tanta (Chairman of the Management Board of


JANAF from 2000 to 2004)

Tuđman Franjo Tuđman (President of Croatia from 1990 to 1999)

Turudić Judge Ivan Turudić (President of the Zagreb County Court since
2011; Trial Judge in the first Sanader proceedings)
135
Vandelić Damir Vandelić (appointed to the INA Supervisory Board in 2011)

Vujec Nataša Vujec (member of Croatian Government from 2008 to


2010; Secretary of State in the Ministry of Economy in 2010 and
2011)

Companies

Croatia

Dioki Dioki d.d. (“dioničko društvo”, the Croatian equivalent of a public


limited company)

HEP Hrvatska elektroprivreda d.d. (Croatian Electricity Company)

INA INA-Industrija nafte d.d. (Oil Industry Company)

JANAF Jadranski naftovod d.d. (Adriatic Pipeline Company)

Plinacro Plinacro d.o.o. (“društvo s ograničenom odgovornošću”, the


Croatian equivalent of a limited company; gas transportation
company, wholly owned by Republic of Croatia)

PP Prirodni plin d.o.o. (natural gas company)

PSP Podzemno skladište plina d.o.o. (underground gas storage


company)

Austria

Hypo Hypo Alpe-Adria-Bank International AG (“Aktiengesellschaft”, the


Austrian and Swiss equivalent of a public limited company)

Cyprus

Ceroma Ceroma Holdings Ltd.

Hangarn Hangarn Oil Products Trading Ltd.

Hungary

MOL MOL Magyar Olaj-és Gázipari Nyrt. (“Nyilvánosan működő


Részvénytársaság”, the Hungarian equivalent of a public limited
company; Hungarian oil and gas company)

Russia

RussNeft OAO NK RussNeft (“otkrytoye aktsionernoye obshchestvo”, the


Russian equivalent of a public limited company; “neftyanaya
kompaniya”, oil company)
136
Yukos OAO NK Yukos

ZMB OOO Zapadno-Malobalykskoe (“obshchestvo s ogranichennoy


otvetstvennostyu”, the Russian equivalent of a limited liability
company; Western Malobalykskoe Company – Malobalykskoe is
an oil field in the Nefteyugansky district in western Siberia)

Switzerland

Dioki Holding Dioki Holding AG

Xenoplast Xenoplast & Shipping AG

137
APPENDIX 4

MONITORING PROTOCOL

PROTOCOL FOR THE INSTRUCTION OF INDEPENDENT MONITORS

IN THE MATTER OF CROATIA V SANADER AND HERNÁDI

I. INTRODUCTION

II. TERMS OF REFERENCE


a. Role
b. Scope
c. Objectives
d. Duties
e. Monitorship term
f. Output
g. Renumeration
h. Withdrawal

III. PRINCIPLES
a. Independence
b. Non-intervention
c. Neutrality/impartiality
d. Transparency
e. Interaction
f. Confidentiality
g. Professionalism
h. Supervision

IV. ACCESS TO RECORDS, PERSONS AND INFORMATION


a. Access to records
b. Access to proceedings
c. Communication with the parties
d. Interviewing relevant persons
e. Collating information

V. REPORTING
a. Interim reports
b. Production of the Final Report

138
I. INTRODUCTION

1. This Protocol contains the terms of reference, and related material, for the
instruction of two independent trial monitors (Lord Anderson of Ipswich KBE QC
and Professor Kai Ambos, together “the Monitors”) in the ongoing criminal
proceedings against Dr Ivo Sanader (“Dr Sanader”) and Mr Zsolt Hernádi (“Mr
Hernádi”) (together “the Defendants”) before the Zagreb County Court (“the
Court”) (Case No. K-US-50/14) (“the Proceedings”).

2. The Defendants are accused of receiving a bribe and giving a bribe, respectively,
contrarily to Articles 348(1) and 347(1) of the Croatian Criminal Code. The
prosecution in the Proceedings is conducted by the Croatian Office for the
Suppression of Corruption and Organised Crime (“USKOK”).

3. The allegations against the Defendants relate to the acquisition in 2009 by MOL,
the Hungarian national oil and gas company, of management rights in INA, the
Croatian national oil and gas company. Mr Hernádi is the Chairman and Chief
Executive Officer of MOL. Dr Sanader was the Prime Minister of Croatia at the
relevant time. Further details of the allegations and the history of the prosecution
can be found in the bundles of documents provided to the Monitors separately
(“the Monitor Bundles”).

4. The Defendants will be tried before the Court by a trial chamber consisting of a
panel of three judges: Judge Maja Štampar Stipić (Chairwoman), Judge Sanja
Mazalin and Judge Martina Maršić (“the Trial Chamber”).

5. The first substantive hearing in the Proceedings was held on 23 October 2018,
with the next substantive hearing being scheduled to take place on 4 February
2019. Minutes from the previous hearings (including preliminary hearings),
together with a trial timetable, are enclosed in the Monitor Bundles.

6. This Protocol and the accompanying Appendices have been prepared by Mr


Hernádi’s defence team. Nothing in this Protocol is to be taken to compromise
the Monitors’ independence and impartial status.

II. TERMS OF REFERENCE

a. Role

7. The role of the Monitors is to act as impartial and unbiased observers, auditing
the fairness of the Proceedings against the Defendants.

8. The Monitors are impassive and neutral participants in the Proceedings who do
not form part of either Defendant’s defence team. The Monitors are independent
of all parties to the Proceedings.

9. The Monitors will maintain, and will strive to be seen to maintain, their
independence at all times.

139
10. The Monitors have been appointed on the basis of:

(i) their integrity, credibility and professionalism;

(ii) their expertise and experience in the specific subject matter of the
monitorship;

(iii) their relevant skills and experience necessary to discharge the duties of the
Monitors; and

(iv) their commitment to serving as the Monitors for the entire monitorship
term, as defined below.

11. The Monitors have the necessary qualifications and experience to enable them
effectively to conduct the monitorship of the Proceedings based on the specific
facts and circumstances of the matter.

12. The terms of reference for the appointment of the Monitors are contained within
this Protocol. The Monitors will act in accordance with the Protocol throughout
the course of their instructions.

b. Scope

13. The Monitors will carry out their activities with reference to the second, 2014
edition of the Fair Trial Manual produced by Amnesty International (“the
Manual”).

14. The scope of the Monitors’ activities coincides with, and is benchmarked against,
Section B of the Manual (“Section B. Rights at Trial”; Chapters 11 – 26 of the
Manual). This includes an examination of the Proceedings’ adherence to the
following trial rights:

(i) right to equality before the law and courts;

(ii) right to a trial by a competent, independent and impartial tribunal


established by law;

(iii) right to a fair hearing;

(iv) right to a public hearing;

(v) the presumption of innocence;

(vi) right not to be compelled to incriminate oneself;

(vii) exclusion of evidence obtained in violation of international standards;

(viii) the prohibition of retroactive application of criminal laws and of double


jeopardy;

140
(ix) right to be tried without undue delay;

(x) right to defend oneself in person or through counsel;

(xi) right to be present at trial and appeal;

(xii) right to call and examine witnesses;

(xiii) right to an interpreter and to translation;

(xiv) judgments;

(xv) punishments; and

(xvi) right to appeal and re-trials.

15. Section A of the Manual (“Section A. Pre-trial Rights”; Chapters 1 – 10) is excluded
from the scope of the Monitors’ activities.

c. Objectives

16. The Monitors will carry out their activities during their monitorship in pursuance
of the following objectives, and in accordance with the Manual (as set out above):

17. To monitor and audit:

(iii) USKOK’s conduct of the prosecution against the Defendants (including the
evidence produced at trial); and

(iv) the Trial Chamber’s conduct of the Proceedings (including any rulings on
motions filed by the parties and any decisions regarding convictions and
sentence).

18. In particular, to examine:

(x) whether the Proceedings are fair by the standards to be applied to trials
under international human rights law, universal treaties and other
universal, regional, non-treaty and UN standards, as defined by the
Manual548;

(xi) whether the Proceedings adhere to the presumption of innocence;

(xii) whether the Defendants are afforded an adequate opportunity to present


their cases to the Court;

548 Pages 1 to 12 of the Manual.


141
(xiii) whether the Defendants are afforded an adequate opportunity to challenge
the evidence produced at trial (including documentary evidence and both
oral and written witness testimony);

(xiv) whether the Proceedings breach any other fundamental rights of the
Defendants;

(xv) whether the Proceedings comply with local laws and procedural rules;

(xvi) whether any decision to convict is justifiable by the evidence;

(xvii) whether any sentence handed down is commensurate to and justifiable by


the evidence; and

(xviii) whether the Defendants were judged by a competent, independent and


impartial trial chamber.

19. The Monitors will build on their expertise of the criminal trial process in their
respective home jurisdictions, and their knowledge of the applicable international
norms and the relevant procedural rules to formulate an unbiased, independent
view of the fairness of the Proceedings.

20. The Monitors will collect information for use as evidence to demonstrate whether
the Defendants received a fair trial, in accordance with standards of international
and domestic laws. The Monitors will consider the need for raising awareness of
any concerns identified among the media, public and governmental organisations.

d. Duties

21. The two Monitors will work together to fulfil their joint duties under the Protocol,
as part of a concerted effort and in an open and co-operative manner. The
Monitors share all duties and responsibilities, and their views and opinions carry
equal weight.

22. The Monitors will work with a team of pre-vetted legal experts (“the Monitoring
Team”) to fulfil the objectives of the monitorship, as set out in this Protocol.

23. The Monitoring Team will be composed of an independent Croatian lawyer with
the requisite knowledge of the relevant local procedural rules and an English
lawyer with sufficient expertise in international fair trial standards. The members
of the Monitoring Team will also adhere to the Protocol and the principles
contained therein.

24. The Monitors will access and deploy resources as necessary to discharge their
duties.

25. In particular, the Monitors will attend every substantive hearing in the
Proceedings, as an impassive neutral observer, or, where appropriate, will
delegate attendance to a suitably qualified member of the Monitoring Team who
142
will report back to the Monitors. The Monitors (whether directly or through
members of the Monitoring Team) will strive to observe the Proceedings in full,
from the time of their engagement and as far as it is practicable to do so.

26. The Monitors will strive to be granted unrestricted access to the Proceedings, and
to relevant records, persons and information (as far as it is possible to do so).

27. The Monitors will conduct all communications with the parties to the Proceedings
(including officials of the Court), as well as third parties (such as media outlets), in
an open and transparent manner, and in line with the parameters set out in this
Protocol.

28. The Monitors will also conduct all communications with each other, and with
members of the Monitoring Team, openly and transparently, with sufficient
records kept, as appropriate.

e. Monitorship term

29. The Monitors are appointed for the duration of the Proceedings (including any
post-trial motions, appeals and confiscation hearings).

30. The Monitors’ monitorship term will come to an end upon the production of their
joint, final working product (as described below), following the conclusion of the
Proceedings.

f. Output

31. The Monitors will produce an independent joint report evaluating the trial process
on the basis of their observations (“the Final Report”).

32. The Final Report will contain the Monitors’ assessment of the Proceedings against
the objectives as set out in this Protocol. Both Monitors will contribute to the Final
Report on a joint basis. The Final Report will constitute the Monitors’ final work
product, encompassing their observations from across the Proceedings.

g. Remuneration

33. Mr Hernádi’s defence team has agreed to pay fees to the Monitors and to
members of the Monitoring Team based on their skills and experience, such fees
to be agreed in advance.

34. Travel and accommodation expenditure incurred by the Monitors and members
of the Monitoring Team in discharging their duties as described in this Protocol
will be reimbursed by Mr Hernádi’s defence team. The Monitors will incur only
costs that are reasonably necessary for carrying out the monitorship.

35. The Monitors will maintain records that accurately reflect the work performed
and the fees and expenses incurred. The Monitors will prepare and issue invoices
to Mr Hernádi’s defence team that are sufficiently detailed to provide an
143
understanding of the type of work performed and the expenses incurred, unless
the parties agree otherwise.

36. Subject to the contents of this section, the Monitors and members of the
Monitoring Team will not hold any material financial interest in the Proceedings
that could potentially be affected by the decisions of the Court (whether held
directly or indirectly or by a family member). Any financial interest is considered
to be material if it is of sufficient value that a reasonable person might believe it
has the capacity to affect one’s judgment in serving as a Monitor.

h. Withdrawal

37. The Monitors may withdraw from their monitorship by giving reasonable notice
in writing to Mr Hernádi’s defence team. The Monitors will disclose the reasons
for their withdrawal unless disclosure would hinder their ability effectively to
perform their remaining duties under this Protocol.

38. In the event of a withdrawal, the Monitors are expected to produce a Final Report
covering the Proceedings up to and including the date of the withdrawal.

III. PRINCIPLES

a. Independence

39. The Monitors are independent both of Mr Hernádi’s defence team and of the
Court, will remain impartial and objective in all their activities, and will avoid any
conduct that might impair, or might appear to impair, their impartiality and
objectivity.

40. The Monitors will not allow the prospect of future monitorship engagements or
other economic considerations to influence their independence.

41. Except for reasonable fees and expenses, as defined in this Protocol, the Monitors
will not accept anything of value from any of the parties to the Proceedings, unless
the value is nominal or it mitigates costs.

42. The Monitors will not provide, or offer to provide, any services to Mr Hernádi’s
defence team during the monitorship term, unless those services arise under this
Protocol. During the course of the monitorship, the Monitors and Mr Hernádi’s
defence team will not discuss the possibility of future instructions.

43. Any expansion of the Monitors’ duties that increases the compensation of the
Monitors must be in compliance with this Protocol.

44. If during the course of the monitorship, either of the Monitors develop or
discovers a material financial interest or any other conflict of interest that impairs
their independence, that Monitor will provide full disclosure to Mr Hernádi’s
defence team and consider withdrawing from their monitorship, in accordance
with this Protocol.
144
b. Non-intervention

45. The Monitors will uphold the principle of non-intervention, so as not to


undermine the independence of the Court.

46. The Monitors and members of the Monitoring Team will not interrupt the
Proceedings or interfere with the judicial process of the Trial Chamber, even if a
violation is observed.

47. The principle of non-intervention extends to all aspects of the monitorship


process, including team supervision, monitoring management, public statements
and all forms of reporting.

48. The Monitors will refrain from expressing any opinions on the merits of the case
against the Defendants, except for any opinion necessary to evaluate the
evidence in the Proceedings, in line with the objectives of the monitorship as set
out in this Protocol.

c. Neutrality/impartiality

49. The Monitors will never show a preference for any party or any result in the
Proceedings, and will uphold the principle of impartiality by treating all parties to
the Proceedings equally. The Monitors will avoid any behaviour that could give
rise to an appearance of partiality.

50. The Monitors will not give any recommendations to any of the parties to the
Proceedings with regards to substantive or procedural aspects of the case. Any
concerns the Monitors have will be included in their written scheduled reports
and the Final Report.

51. To convey their neutrality, the Monitors and members of the Monitoring Team
will, wherever possible, sit in the courtroom in a neutral position in relation to the
prosecution, defence and witnesses.

d. Transparency

52. The Monitors will conduct themselves in an open and transparent manner
throughout the Proceedings.

53. The Monitors (and any members of the Monitoring Team attending hearings on
their behalf) will make their presence, identities and role known to the Court and
to the parties at the outset of the Proceedings.

e. Interaction

54. The Monitors will conduct their activities inside and outside of the courtroom
openly and transparently, but without influencing or being seen to be influencing
the Proceedings.

145
55. Save for introducing themselves and their role, the Monitors and members of the
Monitoring Team will avoid interacting with the parties inside the courtroom,
including the Trial Chamber, the prosecution and Mr Hernádi’s defence team.

56. If the Monitors are asked a question during a hearing by one of the parties to the
Proceedings, the Monitors will clarify their neutral and impartial role and decline
to comment.

57. Where contact is unavoidable, it will be conducted in a transparent manner and


in line with the standards laid down in this Protocol.

f. Confidentiality

58. Although the Proceedings are expected to be public, the Monitors will be handling
sensitive information.

59. The Monitors will respect confidentiality as and when required in the Proceedings
and will protect private information.

60. Where the Monitors acquire information from secondary sources, they will
consider whether publication or dissemination of the information is banned by
any rule of law or order of the Court.

g. Professionalism

61. The Monitors and members of the Monitoring Team will demonstrate the highest
degree of professional integrity at all times.

62. The Monitors and members of the Monitoring Team will be familiar with and
responsive to the professional codes, rules and/or governing legislation of their
profession(s), will comply with such and will promptly seek professional guidance
when a compliance question arises.

h. Supervision

63. The Monitors will take reasonable measures to ensure that members of the
Monitorship Team comply with the relevant provisions of this Protocol.

IV. ACCESS TO RECORDS, PERSONS AND INFORMATION

a. Access to records

64. The Monitors will be granted access to all material in the possession of Mr
Hernádi’s defence team that is reasonably necessary to fulfil their duties under
the Protocol, as determined by the Monitors.

65. The Monitors will be granted adequate access to all material from the case file
(i.e. the trial dossier in front of the Trial Chamber) in the Proceedings, as far as
such material is in the possession of Mr Hernádi’s defence team.

146
66. In addition to the documents contained in the Monitor Bundles, the following
types of information and records will be made available to the Monitors upon a
request being made to Mr Hernádi’s defence team:

(i) evidence produced by Mr Hernádi’s defence team;

(ii) defence motions and submissions filed with the Court;

(iii) decisions handed down by the Court;

(iv) minutes of Court hearings;

(v) hearing transcripts (where available); and

(vi) any other case file documents, as required.

67. Notwithstanding the previous paragraph, Mr Hernádi’s defence team cannot be


required to disclose information that is subject to legal professional privilege or
the disclosure of which would otherwise be inconsistent with applicable law.

68. Where possible and upon request, Mr Hernádi’s defence team will provide the
Monitors with a certified translation of any documents that require translating.

69. The Monitors and members of the Monitoring Team will respect any proprietary
and confidential information and take reasonable measures to protect that
information. The Monitors will not use any such proprietary and confidential
information for personal gain or for any purpose beyond the scope of the
monitorship.

70. Upon terminating the monitorship, the Monitors will return any confidential
information that is the property of Mr Hernádi’s defence team.

b. Access to proceedings

71. Wherever possible, the Monitors will be afforded the right to full access to the
Proceedings. This includes access to ad hoc, preliminary and substantive trial
hearings, unless those hearings are held in private.

72. As far as possible, Mr Hernádi’s defence team will facilitate the Monitors’
attendance at these hearings by taking the requisite administrative steps and
obtaining the necessary authorisation for the Monitors’ presence during the
Proceedings.

73. Mr Hernádi’s defence team will provide the Monitors with an


interpreter/translator, as and when required.

74. If access to the Proceedings is denied at any stage, the Monitors will request a
meeting with the Chairwoman of the Trial Chamber in the Proceedings in order to
seek the restoration of access.

147
75. If access to the Proceedings is ultimately refused at any stage, the Monitors will
ask the Chairwoman to explain the legal basis as to why the right to a public trial
is being withheld.

76. Should there be any prohibition on note-taking inside the courtroom, the
Monitors will request a meeting with the Chairwoman to request an exception.

c. Communication with the parties

77. In order effectively to perform their duties under this Protocol, the Monitors and
members of the Monitoring Team must be able freely to communicate with all
relevant parties to the Proceedings, including Mr Hernádi’s defence team, the
prosecution and the Court.

78. The Monitors will conduct all communications with the relevant parties (including,
but not restricted to, communications with Court staff, the prosecution and
members of Mr Hernádi’s defence team) transparently and without the Monitors’
independence being compromised.

79. Where possible, communication with all parties will be made in writing, with a
copy of all correspondence being kept by the Monitors.

80. Correspondence with Mr Hernádi’s defence team will be directed at a dedicated


member of that team who has been nominated to be the Monitors’ point of
contact for both Monitors (“the Monitor Contact”).

81. The Monitor Contact is responsible for monitoring all incoming queries, requests
and other forms of communication from the Monitors and members of the
Monitoring Team. The Monitor Contact will inform other members of Mr
Hernádi’s defence team of incoming communications, as appropriate.

82. The Monitor Contact will provide the Monitors with a response in writing, where
possible, within a reasonable amount of time. As and when required, the Monitor
Contact can delegate or share responsibility for communicating with the Monitors
with other members of Mr Hernádi’s defence team.

83. It is the Monitor Contact’s duty to maintain a clear audit trail (including a copy,
where appropriate) of all communications between the Monitors and Mr
Hernádi’s defence team.

84. Where members of the Monitoring Team correspond with the parties on the
Monitors’ behalf, the Monitors should be kept abreast (and where possible,
copied into) all such communications.

d. Interviewing relevant persons

85. Mr Hernádi’s defence team will give the Monitors access to individuals forming
part of Mr Hernádi’s defence team for the purpose of the Monitors conducting
interviews with such individuals, as and when required.
148
86. The Monitors will consider on a case-by-case basis whether also interviewing
individuals forming part of the other parties to the Proceedings would assist the
Monitors in effectively discharging their monitorship duties.

87. The Monitors will also consider whether it is necessary and feasible to conduct an
interview with the members and the Chairwoman of the Trial Chamber, as well as
with members of the prosecution and/or the President of the Court, to provide
greater awareness of the monitorship process.

88. The Monitors will not attempt to influence, or be seen to influence, the
Proceedings during the interview process. Likewise, any members of Mr Hernádi’s
defence team interviewed by the Monitors will not attempt to interfere with the
independence of the Monitors.

89. During interviews, the Monitors will fully disclose their identity and role, and if
appropriate have available documentation that establishes the Monitors’ status
and authority. The Monitors will inform the interviewee why they are collecting
the information, and what the Monitors are authorised or required to do with the
information.

90. The Monitors will inform interviewees of the level of confidentiality afforded to
them, if any, when providing information to the Monitors.

91. The Monitors will inform interviewees that:

(i) statements given to the Monitors do not constitute notice to Mr Hernádi’s


defence team on those matters;

(ii) statements given to the Monitors are not privileged communications; and

(iii) statements given the Monitors may be disclosed (either by direct quotation
or by indirect reference) in the Final Report.

92. The Monitors will take detailed notes of any interviews conducted, which will be
kept.

93. The Monitors will respect interviewees’ right not to answer any questions. Where
requested, interviewees will be afforded the right to have a legal representative
present during the interview.

e. Collating information

94. This Protocol affords the Monitors sufficient authority to collect information
confidentially, or otherwise protect the identity of persons providing information,
as deemed appropriate by the Monitors.

95. The Monitors are authorised to undertake parallel informal inquiries, where
necessary, during the course of their monitorship.

149
96. Any requests for further information from Mr Hernádi’s defence team should be
made to the Monitor Contact, with an explanation for why such information is
required, unless disclosure of the reason would hinder the Monitors’ ability
effectively to perform their duties under this Protocol.

97. Requests for further information from other parties, such as the Court, should be
made in writing and in accordance with the standards on communication set out
in this Protocol. Where required, Mr Hernádi’s defence team will facilitate the
Monitors’ request for further information by taking the requisite administrative
steps and obtaining the necessary authorisation for the Monitors’ request to be
made.

V. REPORTING

a. Interim reports

98. The Monitors may publish one or more interim reports, prepared on a joint basis
and containing their observations, findings, conclusions and recommendations in
respect of particular hearings or other aspects of the Proceedings (“Interim
Reports”), at their discretion and as and when considered appropriate.

99. The contents of any Interim Reports are without prejudice to the conclusive
findings contained in the Final Report.

b. Production of the Final Report

100. The Monitors are jointly responsible for producing the Final Report, with
appropriate input from the members of the Monitoring Team.

101. Until the Final Report is published, the Monitors should consider whether it would
be appropriate to make any public statements about their findings or any
evaluation of the Proceedings, keeping the objectives of the monitorship and the
severity of their findings in mind. Where deemed appropriate, the Monitors may
make public statements about the Proceedings, at their discretion.

102. The Final Report will incorporate the following aspects of the monitorship:

(i) the objectives of the monitorship;

(ii) the methodology used by the Monitors in observing the Proceedings;

(iii) fair trial rights under international human rights law and relevant domestic
laws;

(iv) an analysis of the Proceedings, including evaluating the fairness of the


Proceedings; and

(v) the Monitors’ conclusions, including findings and recommendations.

150
103. The Monitors will provide to Mr Hernádi’s defence team a preliminary draft of the
Final Report no later than 28 days after the conclusion of the Proceedings.

104. However, the Monitors will not allow Mr Hernádi’s defence team to suggest any
changes to the preliminary draft of the Final Report except in respect of factual
inaccuracies and typographical issues, or to produce evidence that challenges the
Monitors’ preliminary findings. Neither Mr Hernádi’s defence team nor anyone
else will be given the authority to modify the Final Report.

The Monitors will provide a signed version of the Final Report no later than 28 days after
delivery of the judgment.

151
APPENDIX 5

CURRICULA VITAE OF MONITORS AND MONITORING TEAM

TRIAL MONITORS

Kai Ambos studied law and politics at the Universities of Freiburg, Oxford (UK) and
Munich from 1984 to 1990. He passed his First State Examination (Erstes
Staatsexamen) in law at Munich University in 1990 and the Second State Examination
(Zweites Staatsexamen for admittance to legal practice and judiciary) in the state of
Baden-Württemberg in 1994. He obtained his Dr.jur. from Munich University in 1992,
where he also completed his Habilitiation (post-doctoral qualification to obtain a full
Professorship) in 2001.

Judge Professor Ambos holds, since May 2003, the Chair of Criminal Law, Criminal
Procedure, Comparative Law, International Criminal Law and International Law at
the Georg-August-University Göttingen, Germany. Previously he worked, inter alia, at
the Max-Planck Institute for Foreign and International Criminal Law, Freiburg,
Germany and has been involved in the Criminal Justice Reform in Latin America and
Eastern Europe since then. He served as a Judge at the Provincial Court (Landgericht)
of Lower Saxony in Göttingen from 24 March 2006 to 7 February 2017 (from January
2015 to 30 September 2015 delegated to the Appeals Court (Oberlandesgericht)
Braunschweig); with his appointment as Judge at the Kosovo Specialist
Chambers (KSC), The Hague, on 7 February 2017 he took leave from this judicial
position. On 6 December 2017 he has been appointed as Advisor (Amicus Curiae) to
the Colombian Special Jurisdiction for Peace. He is also list Counsel at the
International Criminal Court.

Judge Professor Ambos is also since December 2013 Director of the Centro de
Estudios de Derecho Penal y Procesal Penal Latinoamericano (CEDPAL) of Georg-
August-Universität Göttingen. He serves as Editor-in-Chief of Criminal Law
Forum (Springer, Society for the Reform of Criminal law) and, in different capacity, as
member in various editorial boards of national and international journals, for example,
Goltdammer's Archiv für Strafrecht, International Criminal Law Review, L'Indice
Penale, Revista Penal, Revista Portuguesa de Ciência Criminal, Zeitschrift für
internationale Strafrechtsdogmatik. He is general coordinator of the Anglo-German
Dialogue on ‘Core Concepts in Criminal Law and Justice’ and general editor of the
three volumes product of this dialogue to be published by Cambridge University Press.

He was Senior Research Fellow, Institute for Advanced Studies, Hebrew University,
Jerusalem, Winter Semester 2011/2012; Fellow Faculty of Law and Clare Hall College,
University of Cambridge, UK, April to August 2016 (Life Member of Clare Hall
College since then); Plumer Fellow St. Anne’s College and Visiting Fellow, Centre for
Criminology, University of Oxford, UK, 1 August to 20 September 2017. Visiting
Professor in China, Latin America (Argentina, Brasil, Chile, Colombia, Ecuador,
Mexico, Peru), Spain, Italy and Israel.

His main research lies in criminal law and procedure, comparative law, international
criminal law with a regional focus on Latin America, Portugal, Spain and Eastern
152
Europe. He has various publications in various languages (Chinese, English, French,
German, Italian, Portuguese and Spanish) in these areas, recent English ones include:

 Treatise of International Criminal Law, three volumes, Oxford: OUP, 2013-2016

 The Crime of Genocide and the Principle of Legality under Article 7 of the
European Convention on Human Rights, 17 Human Rights Law Review (2017),
175-186

 (editor with Otto Triffterer), The Rome Statute of the International Criminal
Court. A Commentary, 3rd ed., München: C.H. Beck/Hart/Nomos, 2016, 2352
pp

 European Criminal Law and Brexit, in M. Böse/M. Bohlander/A. Klip/O. Lagodny


(eds.), Justice Without Borders. Essays in Honour of Wolfgang Schomburg,
Leiden/Bosten: Brill, 2018, 1-22

 Fairness and Expediency in International Criminal Procedure, in J. Jackson/S.


Summers (eds.), Obstacles to Fairness in Criminal Proceedings, Oxford: Hart,
2018, 179-189.

 European Criminal Law, Cambridge: CUP, 2018.

 International Economic Criminal Law, 29 Criminal Law Forum (2018), 499-566

 National Socialist Criminal Law, Nomos/Hart 2019

 The Current State and Future of Comparative Criminal Law – A German


Perspective, 24 UCLA J. Int’l L & For. Aff. (forthcoming 2020).

For further information visit <https://www.department-ambos.uni-


goettingen.de/index.php/en/2014-10-03-12-43-13/kai-ambos> and
<https://www.cedpal.uni-goettingen.de/>

David Anderson (Lord Anderson of Ipswich KBE QC)

Professional work

CROSS-BENCH (NON-POLITICAL) MEMBER OF THE HOUSE OF LORDS, 2018 to


date

 Appointed by independent House of Lords Appointments Commission

 Participates in the legislative scrutiny of draft Bills and Bills

 Member of the EU Justice Committee of the House of Lords

BARRISTER, BRICK COURT CHAMBERS, LONDON, 1988 to date (QC 1999)

 Has argued cases in the full range of UK courts and tribunals


153
 150 appearances in Court of Justice of the EU, 30 appearances in European
Court of Human Rights

 Monitored freedom of the media in Turkey, Russia, Ukraine for Council of


Europe, 2000-04

PART-TIME JUDGE, 2004 to date (c. 3 weeks p.a.)

 Recorder of the Crown Court (criminal judge) 2004-2013

 Judge of the Courts of Appeal of Jersey and Guernsey, 2014 to date

INDEPENDENT REVIEWER OF TERRORISM LEGISLATION, 2011-17

Published 20 reports on the enforcement of counter-terrorism law by Ministers, police,


prosecutors and courts, surveillance, counter-extremism, national security

 Reports frequently cited in Parliament and in the courts, including in judgments


of the UK Supreme Court (R v Gul; DPP v Beghal) and European Court of
Human Rights (Beghal v UK; Big Brother Watch v UK)

Academic work

 Visiting Lecturer (1988-99) and Visiting Professor (since 1999), King’s College
London

 Lectured on EU, human rights and terrorism-related issues in more than 20


countries

 Author, References to the European Court (Sweet & Maxwell, 1995, 2nd edn.
2002)

 Advisory Board, European Human Rights Law Review

 Author of various articles in legal journals, including:

o “Shielding the Compass: How To Fight Terrorism without Defeating the


Law” [2013] European Human Rights Law Review 233-246

o “The Independent Review of UK Terrorism Law” [2014] New Journal of


European Criminal Law, 432-446

o “Shades of Independent Review” in Lennon, King and McCartney,


Counter-Terrorism, Constitutionalism and Miscarriages of Justice,
Festschrift for Professor Clive Walker (Bloomsbury, 2018)

Charitable work

 Chairman of the international conflict resolution charity Inter Mediate, 2019 –

 Advisory Board, UCL European Institute, 2018 –

154
 Former Trustee/Board member (various dates since 2000) of the British
Association for Central and Eastern Europe; School of Slavonic and East
European Studies; British Institute for International and Comparative Law;
Centre of European Law, King’s College London; Slynn Foundation for
European Law

Education and training

 Oxford University (New College) Ancient and Modern History (MA), 1979-82

 Cambridge University (Downing College) Law (BA), 1982-84

 Inns of Court School of Law, 1984-85

 Covington & Burling, Washington DC, lawyer from abroad, 1985-86

 European Commission, Cabinet of Commissioner Lord Cockfield (1987-88)

Personal

 Born 1961, married since 1989, two adult daughters

 Languages: French

 Knighted for services to national security and civil liberties, 2018

MONITORING TEAM

Quincy Whitaker has practised as a barrister at Doughty Street Chambers in London


for over 25 years, specialising in international and domestic criminal justice related
human rights law. She was appointed as a Recorder of the Crown Court (Crime) in
2018. She has a first class LLM in International Human Rights Law (BA (Hons) in
Jurisprudence) and has taught LLM and undergraduate courses at the LSE, SOAS
and the University of North London on c r i m i n a l a s p e c t s o f Human Rights Law,
Administrative Law and Criminal Law. In 2015/16 she was appointed as an
international expert to the Council of Europe’s working group developing the pilot Legal
Help course in Ukraine and previously has been seconded for three months to Kosovo
on behalf of the UK Government (Dept. for International Development) working with an
OSCE capacity building project with local criminal defence lawyers. She has
represented defendants at the UN Special Court for Sierra Leone and at the
International Criminal Tribunal for the Former Yugoslavia, at which she was also
appointed to act as amicus curiae. She has been involved for many years in Caribbean
Death Row litigation and spent six months working in the region in 1998 as well as
having appeared in numerous constitutional and criminal cases from the Caribbean at
the Privy Council. She has provided human rights training in the UK for senior police
officers, the Foreign Office and lawyers in private practice; to judges, lawyers and
prison commissioners on behalf of the Council of Europe and the Bar Human Rights
Committee in Europe and Africa, and training in international criminal law to lawyers in
Sierra Leone in preparation for the establishment of the Special Court. She co-authored
155
‘Criminal Justice, Police Powers and Human Rights’ (Blackstones 2001) with Keir
Starmer QC and was a Contributing author to ‘Against the Death Penalty - International
Initiatives’ (Ashgate Publishing 2008). She has acted as legal consultant to numerous
TV and film projects, including the award winning UK production ‘Consent’ (Century
Films).

Davor Lazić is an attorney-at-law from Zagreb, practising both national and


international law, specialising in national and international criminal law. He graduated
from the Faculty of Law of the University of Zagreb and received his Masters degree
in European Union Law and Public International Law at the University of Amsterdam
Faculty of Law (Amsterdam Merit Scholarship awarded). He is a member of the
Croatian Bar Association (HOK-CBA) and the Association of Defence Counsel
practising before the International Courts and Tribunals (ADC-ICT). From 2005
onwards he held various functions both for the Defence and the Registry before the
International Criminal Tribunal for the former Yugoslavia. He was also appointed as
an expert advisor for International Criminal Law Services Foundation on the project
of preparation of materials for training centers for lawyers in Bosnia and Herzegovina,
Croatia and Serbia, and international lecturers ("Supporting the Transfer of
Knowledge and Materials of War Crimes Cases from the ICTY to National
Jurisdictions” as a part of the War Crimes Justice Project). He has represented clients
before national and international criminal courts with narrow specialization in human
rights law, war crimes and white-collar crime. Since 2015 he is Visiting Lecturer at
Faculty of Law Zagreb, International Criminal Procedure.

156
APPENDIX 6

REPORT AND LETTER ON MOBILE PHONE ISSUES

REPORT ON HEARINGS OF DECEMBER 2019

Report of Davor Lazic, 15 March 2019 (mobile phone issues)

25 February 2019

Around 09:15, at the County Court Zagreb entrance, as every other morning I showed
my Croatian Bar ID and tried to pass by the judicial police, as usual. I was stopped by
the judicial police and asked what hearing precisely and in what capacity I am planning
to attend. I confirmed that I am about to observe Croatia v Ivo Sanader and Zsolt
Tamás Hernádi trial as a monitor. Immediately I was asked to leave my mobile phone
with them. Since it never happened to me before and since I noticed that every
journalist and cameraman just went in without those sorts of restrictions, I kindly asked
judicial police what the grounds for this sort of decision are. The judicial police only
informed me that the order not allowing monitors to bring mobile phones inside the
premises came from the Chairwoman of the panel; so I tried to get further information
from her.

Around 11:05, at the beginning of a first court break I have approached the
Chairwoman of the panel and asked for the clarification of this morning’s incident
regarding my mobile phone confiscation. She simply stated that that the President of
the court delivered an order for the monitors not to be allowed to bring mobile phones
inside the County Court. She further added “I know it is not you, but your colleague
monitor was using his mobile phone in the courtroom last week”. At that point I stopped
further discussion.

26 February 2019

Around 09:15, at the Court entrance, in a same fashion as on 25 February 2019, I was
asked by the judicial police to leave my mobile phone with them; this time, additionally,
they checked my briefcase. A few minutes afterwards, I accidently met the
Chairwoman of the panel at the corridor and asked again for the clarification of the
judicial police conduct at the Court entrance. This time she admitted that she
personally delivered an order for the monitors not to be allowed to bring mobile phones
inside the Court (prior she stated that it was the decision of the President of the Court)
and that every other decision of the judicial police, including checking of my briefcase,
is taken solely by them as they find it appropriate. I just told her that in my opinion a
written decision regarding a temporally confiscation would be in order so I can file a
formal complaint to the President of the Court. I did not make any further comments. I
did not file anything.

6 March 2019

Around 12:30, and after thorough Monitor team correspondence, the letter signed by

157
Prof Dr Kai Ambos and Lord Anderson KBE QC as Independent Trial Monitors and
addressed to Judge Ivan Turudić, the President of the County Court and to Judge
Maja Štampar Stipić, the Chairwoman of the Panel, was delivered to the Court.

7 March 2019

Around 08:35, I received a phone call from Judge Turudić’s secretary asking if I can
attend a meeting with Judge Turudić at 10:00 am. I told her that this is a really short
notice and that at the moment I am 200 kilometers away from Zagreb where I have
previously scheduled court hearing at 10:00 which should be finished in about 3 hours.
Consequently I suggested any time after 4 PM or anytime tomorrow - 8 March 2019.

Around 09:10, I received another phone call from Judge Turudić’s secretary stating
that Judge Turudić will have no free time this week but that he will try to arrange
meeting for next week. I confirmed that I will attend court session on Monday morning,
11 March 2019 to monitor Croatia v Ivo Sanader and Zsolt Tamás Hernádi trial and
that we can even meet before the court hearing on Monday or any other time which
would be more convenient for Judge Turudić.

Around 12:00, I received a phone call from Judge Turudić who stated that this is an
issue that should be dealt with the Chairwoman of the Panel but that public in general
has no rights to record anything and no rights to use mobile phones when judge orders
so. He further stated that there is no ground in Croatian Criminal Procedure Code
according to which public and/or monitors can ask for delivery of any written decision
and/or order. At the outset, he stated that he is not and cannot be impressed by the
content of the letter and/or its signees and that the letter can represent as a kind of an
attempt to put a pressure on the County Court.

11 March 2019

Around 09:15, at the Court entrance, in a same fashion as on 25 and 26 February


2019, I was asked by judicial police to leave my mobile phone with them. There was
no discussion regarding this issue in or out the courtroom.

12 March 2019

Around 09:15, at the Court entrance, in a same fashion as on 25-26 February and 11
March 2019, I was asked by judicial police to leave my mobile phone with them.

Around 10:40, on my way out from the Court I ran into Judge Turudić and had a short
discussion with him. I asked him if we will get any written response to the letter and/or
will we have a previously proposed meeting re the mobile phone issue and his answer
was negative in relation to both possibilities. Once again, he specifically stated that
the Croatian Criminal Procedure Act does not recognize the role of the monitors, that
we only represent public for him and that we as such cannot expect to have any
discussion regarding our rights with the Chairwoman of the Panel and/or the President
of the Court. I emphasized that the decision re the mobile phone issue is not directed
against public in general but exclusively against monitors and then he replied that this
was/is not his decision but the decision of the Chairwoman of the Panel. However, he
confirmed that we should not expect to get anything in writing from judge Štampar

158
Stipić as well. Of course, I have not heard anything from judge Maja Štampar Stipić
so far.

159
English translation of letter sent by Monitoring Team to Court

6 March 2019 (mobile phone issues)

Dear President of the Court, Mr Turudic,

Dear Chairwoman of the panel, Mrs Štampar Stipić

We are the Independent jurists from Germany and the UK, appointed to act as
independent trial monitors in the ongoing criminal proceedings against Dr Ivo Sanader
and Mr Zsolt Hernádi before the Zagreb County Court. We perform that function with
the assistance of a Croatian lawyer, Mr Davor Lazić, and the English barrister Ms
Quincy Whitaker. We refer to ourselves collectively as the Trial Monitoring Team.

On the 25th and 26th February 2019 Mr Davor Lazić, was required by the judicial police
to surrender his mobile phone to them prior to entering court, pursuant to an apparent
court ruling. We understand that this restriction has not been applied to any other party
attending court, whether in a professional capacity or as members of the public.
Neither has Mr Lazić ever previously had such a measure imposed throughout his
extensive practice in the Croatian courts.

We must express our surprise and concern at your ruling, and our regret that Mr Lazić
was not able to address you on this matter at the time the decision was made. It seems
that prior to your ruling, a person, who we understand to be Sándor Rézman (a
member of MOL’s legal department), used a mobile phone during the proceedings and
that he informed the court that his role was to “monitor” proceedings, so as to be able
to report developments back to MOL. It appears that there may have been some
misunderstanding by the Court that he was referring to being a member of the Trial
Monitoring Team. He was not. The inability of Mr Lazić to address you, and the ruling
itself, are thus particularly unfortunate.

We note that Mr Lazić requested reasons in person on 26th February 2019 but none
have been delivered. We formally and respectfully repeat that request. We also
request clarification whether your ruling applies (1) to all future hearings in this case
and (2) to members of the Trial Monitoring Team other than Mr Lazić.

We consider that your ruling risks impacting upon the capacity of the Trial Monitoring
Team to effectively monitor the trial, and thus infringes the right to a public trial as
guaranteed by Article 6 of the ECHR.

We would be particularly concerned if your ruling were to apply to the members of the
Trial Monitoring Team who do not speak Croatian. As you are aware, Mr Hernádi
requested permission from the court to provide simultaneous translation facilities so
that his English lawyers and the non-Croatian speaking members of the Trial
Monitoring Team could follow the proceedings live. This request was denied.
Consequently the Trial Monitoring Team relies on our Croatian speaking member to
attend every court hearing and provide us with ongoing updates of the proceedings in
order to monitor the trial when the whole team is not present. Hitherto he has been
able to update the team by texting on his mobile phone at suitable breaks in the
proceedings (always ensuring no distraction is provided to the proceedings).

160
Furthermore, fully effective trial monitoring requires the attendance from time to time
of other members of the Trial Monitoring Team. Accordingly, the full team attended at
the beginning of the trial to observe the principal witness, Robert Ježić, give evidence.
We followed his evidence through a simultaneous translation provided on our mobile
phones through a private members’ group.

We intend to return to observe the cross examination of Mr Ježić in April and will again
require some means of translating the proceedings so as to effectively observe the
testimony of the central witness in the proceedings.

We ask by what means is the Court prepared to enable us to translate the proceedings
in order to effectively monitor their compliance with Article 6?

We consider that the absence of any viable means of translation, the deprivation of
which was imposed arbitrarily and without justification, would constitute an unlawful
restriction on the right to a public trial and would amount to a violation of Article 6. This
is a matter which, pursuant to our Trial Monitoring Protocol, we may consider we are
obliged to publicise by way of an interim report or otherwise as appropriate.

We would be grateful for your prompt response to the questions in this letter. In
particular, we request your confirmation that the Trial Monitoring Team will in future be
entitled to make silent and unobtrusive use of mobile phones for translation purposes
during hearings. Alternatively, if you are not willing to grant such confirmation, we
request a reasoned justification for your ruling so that we may review our options. We
ask for your response prior to the next hearing on the 11 th March 2019.

If you would like to discuss this matter further with our Croatian member, Mr Lazić will
be happy to meet with you at your convenience.

Yours sincerely

Prof Dr Kai Ambos

Lord Anderson KBE QC

Independent Trial Monitors

161
Report of Davor Lazić on hearing of 4.12.2019

REPORT No. 41

Hearing held before the County Court of Zagreb on 4 December 2019

Reference No. K-Us-50/14

Prosecutor: Bureau for Combating Corruption and Organized Crime of Zagreb


(“USKOK”)

Defendant: Ivo Sanader and Zsolt Tamás Hernádi

For the criminal offences referred to in Article 347 (1) and Article 348 (1) of the 1997
Criminal Act

USKOK's reference Nos. K-US-145/11 (IS-US-35/11)

Present on behalf of the court:


The Chairwoman of the panel – judge: Maja Štampar Stipić
Members of the panel – judges: Sanja Mazalin and Martina Maršić
Court reporter: Tibor Vukelić

The following persons appeared:

Prosecutor: Deputy director of USKOK Tonći Petković – in person

First defendant: Ivo Sanader – nobody


Second defendant: Zsolt Tamás Hernádi – nobody (trial in the absence)

Defence attorney of the first defendant: Jadranka Sloković – not present 09:05-10:30;
present from 11:10 (after first break)
Defence attorney of the first defendant: Čedo Prodanović – nobody
(Court appointed) Defence attorney of the first defendant: Nikola Drobec – in person

Defence attorney of the second defendant: Laura Valković – in person


Defence attorney of the second defendant: Dalibor Valinčić – in person
Defence attorney of the second defendant: William Boyce QC – nobody

Third party representative to whom the property gain has been transferred: Ksenija
Vržina – nobody

Witness:
Zoltán Sándor Áldott – in person

The interpreter for English: Eva Horvath-Žaja – in person (first session, until 10:30,
only)
The interpreter for English: Nenad Vukadinović – in person

162
(*at the Court entrance, I was again asked by the judicial police to leave my mobile
phone with them)

Opened at 09:05

(*witness Zoltán Áldott testified)

Based on Article 409, paragraph 2 of the CPA/08 witness Zoltán Áldott’s testimony
was recorded.

The hearing started without both defence attorneys of the first defendant, Mr. Ivo
Sanader being present. Court appointed defence attorney of the first defendant was
the only attorney present for Mr. Sanader in the first session (09:05 – 10:30).

This time the witness was present in the courtroom in Zagreb. Although we started
with a different interpreter for Hungarian language (Ms. Eva Horvath-Žaja), comparing
to 25 November 2019 when the witness started with his testimony, the interpretation
was still poor. When asked by the Chairwoman of the panel, the witness clearly stated
that he would rather testify in Hungarian then in English.

(*on 25 November 2019, there was an off the record suggestion Chairwoman of the
panel that the witness should testify in English. The deputy director of USKOK Tonći
Petković agreed that this might be a good suggestion since the witness might have
used English as a working language while he was in INA. The defence disagreed with
the suggestion at the time).

Consequently, around 09:30 the witness continued with his testimony in English (with
the interpretation of Mr. Nenad Vukadinović).

(*After Ms. Valković’s objection re the fact that the defence received the transcript of
the previous testimony of the witness only a day before, on 3 December 2019, and
that they could not verify the punctuality of Hungarian interpretation due to a lack of
time, the Chairwoman of the panel allowed for the testimony of the witness to start
from the beginning.)

(*break 10:30 – 11:10; after this break Ms. Jadranka Sloković was present in the
courtroom)

Witness Zoltán Áldott inter alia testified re global crises and decrease of oil and gas
prices on the global market; re the modernization of two INA’s refineries (Rijeka and
Sisak); re formation of oil and gas prices; re gas business of INA; re hedging; re INA’s
larger debtors at the time (including DIOKI); re Prirodni plin company; re SHA; re
reserved matters; re LODO; re the TIFON acquisition, etc.

While testifying today, the witness commented on the testimonies of witnesses


Radošević, Krešić and Štern previously given in this trial and partly presented to him
today by the defence, with whom the witness mostly disagreed by stating that he has
no logical explanations for the most of their statements.

The question put to the witness re legal opinion written by Hanžeković and partners’
law firm was forbidden – as irrelevant.
163
(*break 12:55 – 13:20)

After the break, judge Štampar Stipić instructed the witness to provide shorter answers
– since his long answers are irrelevant – which consequently led to a heated debate.

Ms. Sloković objected this instruction by stating that these questions were relevant for
the defence and that this is only a second defence witness in this case. Further, she
stated that in a case that the hearing will be conducted this way we will not need the
hearing at all. Ms. Valković joined the objection by stating that there is no need for a
speedy trial and that this is the only witness who is questioned re the same
circumstances we already questioned four different prosecution witnesses. Judge
Štampar Stipić then replied that in that case we all will be sitting until 10 PM today, if
necessary. Ms. Sloković responded that she will not be sitting in the courtroom until
10 PM, while judge Štampar Stipić replied that she is the only one who is going to
decide who long we are be sitting today. Ms. Sloković replicated that this whole thing
is only happening since the Panel has a problem with the statute of limitation, stating
that this is not a defence fault and that judge Štampar Stipić is angry because this trial
started only six moths before the statute of limitation runs out. Ms. Sloković then
continued that there was a series of events without precedents in this trial including
the fact that earlier this week judge Štampar Stipić invited a sick man – the Accused
(Mr. Ivo Sanader) – to come to the Court into her office, even without his attorneys
being present and informed about it, and without him and his attorneys knowing the
reason for this invitation. Judge Štampar Stipić just confirmed that this sort of meeting
took place by stating that she “did not invite him, he came on his own” (*from
Remetinec prison?!) adding that unlike Ms. Sloković, Mr. Sanader was very pleasant.

(*break 15:15 – 15:30)

At the very end of this hearing judge Štampar Stipić stated that she was planning the
presentation of Sanader’s own defence for 16 and 19 December 2019. Then she
asked Ms. Sloković if, after we hear the testimony of Flavio Sanader on 16 December
2019, Ivo Sanader can start presenting his own defence on 16 December 2019 and
further stated that, if he will not be ready, he does not have to state his defence at all.

Ms. Sloković stated that Ivo Sanader has to present his defence, asked why we have
this process then anyway if he is not going to present his defence and concluded that
this whole process is deeply unlawful!

Judge Štampar Stipić simply responded “you can appeal!”.

On 9 December 2019 witnesses Ilona Fodor and Ferenc Zoltán Horváth should testify
via video-link.

On 12 December 2019 witnesses Robert Ježić and Pal Kara should testify.

On 16 December 2019 witnesses Zoltán Sándor Áldott and Flavio Sanader should
testify.

Concluded at 17:15
(*next hearing is scheduled for 9 December 2019 at 9:00 a.m. in courtroom no. 37/I;
with witnesses Ilona Fodor and Ferenc Zoltán Horváth via video-link)
164
Report of Davor Lazić on hearing of 12.12.2019

REPORT No. 43

Hearing held before the County Court of Zagreb on 12 December 2019

Reference No. K-Us-50/14

Prosecutor: Bureau for Combating Corruption and Organized Crime of Zagreb


(“USKOK”)
Defendant: Ivo Sanader and Zsolt Tamás Hernádi
For the criminal offences referred to in Article 347 (1) and Article 348 (1) of the 1997
Criminal Act
USKOK's reference Nos. K-US-145/11 (IS-US-35/11)
Present on behalf of the court:
The Chairwoman of the panel – judge: Maja Štampar Stipić
Members of the panel – judges: Sanja Mazalin and Martina Maršić
Court reporter: Tibor Vukelić

The following persons appeared:


Prosecutor: Deputy director of USKOK Tonći Petković – in person

First defendant: Ivo Sanader – nobody


Second defendant: Zsolt Tamás Hernádi – nobody (trial in the absence)

Defence attorney of the first defendant: Jadranka Sloković in person


Defence attorney of the first defendant: Čedo Prodanović – nobody
(Court appointed) Defence attorney of the first defendant: Nikola Drobec – in person

Defence attorney of the second defendant: Laura Valković – in person


Defence attorney of the second defendant: Dalibor Valinčić – in person
Defence attorney of the second defendant: William Boyce QC – in person
(together with attorneys Ms. Franziska Christen and Mr. Peter F. Gerald)

Third party representative to whom the property gain has been transferred: Ksenija
Vržina – in person

Witnesses:
Robert Ježić – in person
The interpreter for English: Nenad Vukadinović – in person

(*at the Court entrance, I was again asked by the judicial police to leave my mobile
phone with them)

Opened at 09:05
At the outset, Deputy Director of USKOK Mr. Tonći Petković filed the new amended
indictment dated 11 December 2019.

165
Third party representative to whom the property gain has been transferred Ms. Ksenija
Vržina also submitted a motion declaring a view re the property gain.

Judge Maja Štampar Stipić indicated that professor Božidar Šebečić, MD, the
permanent court expert in surgery for orthopaedics and physiatrists, submitted his
expert witness findings and opinion made at the request of the court and based on a
medical review of Ivo Sanader in prison on 9 December 2019, in which he gave his
opinion stating that the post-operative recovery of Ivo Sanader is going slower than
expected and that Mr. Sanader is not yet able to attend hearings. After physical
therapy takes place he should be reassessed.

Further, Ms. Valković argued that the statute of limitation is applicable since May 2019
due to the fact that according to the new amended indictment dated 11 December
2019, “Sanader- Hernádi relationship” is placed at latest at 30 August 2008 (so now it
should be calculated as 30 Oct 2008 + 10 years + 209 days = 27 May 2019).
Consequently Ms. Valković proposed for the indictment to be rejected in a respect of
the second accused, Mr. Hernádi. Re criminal offense of bribery she further argued
that it is completely irrelevant when the payment has been made and that it is even
irrelevant if/when the payment of money occurred, pursuant to the jurisprudence of
both Supreme Court and Constitutional Court of Republic of Croatia.

Tonći Petković argued that Mr. Hernádi is incriminated with offering and giving bribe
and since 5 millions EUR were given on 17 June 2009 no statute of limitations applies
yet, according to USKOK.

(*witness Robert Ježić testified)

Based on Article 409, paragraph 2 of the CPA/08 witness Robert Ježić‘s testimony
was recorded.

Witness Robert Ježić inter alia testified re discrepancies and contradictions between
his testimony and the testimony of witness Hürlimann; re secret shareholder of
Xenoplast who had run away (*during this hearing the Trial Chamber once again
decided to reject defence's proposal to the Trial Chamber to instruct witness Ježić to
submit alleged confidentiality agreement and the name the 90% shareholder since
these facts are not relevant for the judgment in these criminal proceedings bearing in
mind the modified indictment, according to the Trial Chamber since the Court will
assess the authenticity of the testimony of Ježić and Hürlimann and, after that, bring a
decision); re the documentation linked to this case that Hürlimann brought to USKOK
when he came to give evidence; re Dioki's financial situation and 5 million EUR that it
would have to return to Croatia; etc.

(*breaks 11:30 – 12:15; 13:40-14:05)

Ms. Laura Valković objected for the articles proposed for admission by Mr. Tonći
Petković to be read and admitted into the evidence on the ground that there is no
confirmation of their authenticity. In a case the articles are admitted she proposed that
Mikhail Gutseriev should be invited to give his testimony.

166
Ms. Jadranka Sloković proposed that the following witnesses be invited as defence
witnesses: Ábel Galácz, Tomislav Dragičević, Siniša Caktaš, Ratko Maček and
Mladen Zlamalik.

Ms. Laura Valković proposed that the following witnesses be invited as defence
witnesses: Ilona Fodor, Pál Kara, David Dearman and Slobodan Uzelac. Further, Ms.
Laura Valković proposed for the following witnesses to be confronted: Ježić and
Hürlimann and Fazakas Hürlimann. Also the defence asked for the submission of an
official information from USKOK if there is an agreement between witness Ježić and
USKOK re Article 298 of CPA

(*Article 298 of CPA - The verdict and the establishment of the unlawfulness of the
evidence may not be based only on the testimony of the witness acquired pursuant to
Articles 296 and 297 of this Act.)549

USKOK objected to all the defence proposals.

(*break 14:40-15:20)

The Trial Chamber decided to dismiss all evidence proposals as irrelevant given that
all the decisive facts have been sufficiently established through evidence presented

549 Article 296


(1) If the special manner of examination of a witness refers only to non-disclosure of information, the
examination shall be carried out under a pseudonym without listing of other information referred to in
Article 288 paragraph 2 of this Act. As regards its other parts, the examination of the protected witness
shall be carried out pursuant to the general provisions of this Act related to the examination of witnesses.
(2) After the completion of the examination the protected witness shall sign the record by using a
pseudonym
Article 297
(1) If the special manner of examination of a witness refers not only to non-disclosure of information
referred to in Article 288 paragraph 2 of this Act but also to non- disclosure of physical appearance of
the witness, the examination shall be carried out by using audio and video devices. The audio and video
devices shall be operated by an expert person. The appearance and the voice of the witness shall be
changed during the examination. In the course of examination, the witness shall be situated in a room
that is separated from the room in which the investigating judge and other persons attending the
examination are situated. The examination shall be conducted pursuant to Article 292 paragraph 3 of
this Act.
(2) The investigating judge may decide that the examination of the protected witness be recorded
by an audio and video recording device or an audio recording device. The investigating judge shall bring
a decision on recording and the manner in which the recording shall be performed taking special care
of the protection of the witness. In that case the investigating judge shall not keep any records. The
recording shall be transcribed within three days.
(3) Before the examination, the protected witness must be instructed according to Article 87
paragraph 3 of this Act, in addition to the warning and instructions referred to in Article 288 paragraph
3 and Article 289 paragraphs 1 and 2 of this Act.
(4) In case the examination of the protected witness is recorded, the investigating judge shall note
in the record the ruling referred to in Article 295 paragraph 4 of this Act, and shall than proceed pursuant
to Article 87 paragraph 5 of this Act taking special care of the protection of the witness.
(5) When the examination of the protected is being recorded, two copies of examination shall be
made, one of which shall immediately be sealed and handed over to the investigating judge for
safekeeping. This recording shall be signed by the investigating judge, the witness in danger by
pseudonym and the expert person who made the recording. The other recording shall be handed over
to the State Attorney. The State Attorney shall make a copy of the recording within fifteen days and
enclose it with the file.
167
so far. Following the amended indictment, the Trial Chamber found that the
examination of the witnesses Pál Kara and Ilona Fodor is not necessary anymore and
therefore are dismissed as irrelevant as well.

The Trial Chamber also established that witness Ježić does not have a status of
“svjedok pokajnik” (*witness repentant, like“Pentito” in Italian system; in exchange for
the information they deliver, “svjedok pokajnik” can receive shorter sentence for the
crimes, witness protection, new identity and/or in some cases even freedom).

On 16 December 2019 witnesses Zoltán Áldott (at 8.30 AM) and Flavio Sanader (at
9.00 AM) should testify. After the testimonies of the said witnesses Ivo Sander will
present his defence. If he is not going to present his defence in 16 December 2019,
his previous defence will be read.

On 19 December 2019 the defence will have the closing arguments. Each counsel will
be allocated with maximum of two hours.

Ms. Jadranka Sloković stated that Sander’s defence does not have time to prepare
the closing arguments this way since two witnesses should be heard on 16 December
2019, followed by the presentation of Sanader’s defence; hence the deadline of two
days for the preparation of the closing arguments is too short.

Judge Štampar Stipić simply replied “you can start preparing today”.

Ms. Laura Valković joined the Sanader’s defence in theirs arguments and further
stated that the case file consists of 15,000 pages and therefore two allocated days for
the preparation of the closing arguments is not enough. It is also contrary to Article
29.2 of the Constitution of Republic of Croatia and contrary to Article 6 of European
Convention, Ms. Valković further argued.

The defence is of the opinion that today's decision rejecting all evidence proposals
including the proposal to hear witnesses Pál Kara and Ilona Fodor, prevents the
defence from establishing relevant facts and therefore it is unfair. Ilona Fodor appeared
before the court for the first time but was prevented from doing so second time. Ms.
Laura Valković stated that the Trial Chamber already accepted the defence proposals
to hear the evidence of witnesses Pál Kara and Ilona Fodor. Consequently, due to the
equality in arms, she emphasized that prosecution witnesses Spevec, Novak, Dragić,
Polančec, Čerhak and Dropulić did not appear before the Court without any justification
and this Trial Chamber at the time decided to call them again. The Trial Chamber did
not decide that these prosecution witnesses would not be examined, as it did now in
the case of the defence witnesses. By such a decision, the defence is prevented from
presenting the essential facts relevant to the judgment in this trial, she added.

Concluded at 15:35

(*next hearing is scheduled for 16 December 2019 at 9:00 a.m. in courtroom no. 37/I;

with witnesses Zoltán Áldott and Flavio Sanader)

168
Report of Davor Lazić on hearing of 16.12.2019

REPORT No. 44

Hearing held before the County Court of Zagreb on 16 December 2019

Reference No. K-Us-50/14

Prosecutor: Bureau for Combating Corruption and Organized Crime of Zagreb


(“USKOK”)
Defendant: Ivo Sanader and Zsolt Tamás Hernádi
For the criminal offences referred to in Article 347 (1) and Article 348 (1) of the 1997
Criminal Act
USKOK's reference Nos. K-US-145/11 (IS-US-35/11)
Present on behalf of the court:
The Chairwoman of the panel – judge: Maja Štampar Stipić
Members of the panel – judges: Sanja Mazalin and Martina Maršić
Court reporter: Tibor Vukelić

The following persons appeared:


Prosecutor: Deputy director of USKOK Tonći Petković – in person

First defendant: Ivo Sanader – nobody


Second defendant: Zsolt Tamás Hernádi – nobody (trial in the absence)

Defence attorney of the first defendant: Jadranka Sloković – in person


Defence attorney of the first defendant: Čedo Prodanović – nobody
(Court appointed) Defence attorney of the first defendant: Nikola Drobec – in person

Defence attorney of the second defendant: Laura Valković – in person


Defence attorney of the second defendant: Dalibor Valinčić – in person
Defence attorney of the second defendant: William Boyce QC – nobody

Third party representative to whom the property gain has been transferred: Ksenija
Vržina – nobody

Witnesses:

Zoltán Sándor Áldott – in person

Flavio Sanader – in person

The interpreter for English: Nenad Vukadinović – in person

(*at the Court entrance, I was again asked by the judicial police to leave my mobile
phone with them)

Opened at 08:40

169
(*witness Zoltán Sándor Áldott testified)

Based on Article 409, paragraph 2 of the CPA/08 witness Áldott‘s testimony was
recorded.

Witness Áldott today continued to answer the questions raised by USKOK.

Witness Áldott inter alia testified re IPO of INA; re negotiations on the amendments to
the Shareholders Agreement and the relevant people involved in the negotiations; re
consolidation of other Croatian companies by MOL, for example Podravka and more
recently Petkokemija Kutina; re Imre Fazakas, Yukos and Gutseriev, etc.

There were no objections to the testimony of witness Áldott.

(*witness Flavio Sanader testified)

Based on Article 409, paragraph 2 of the CPA/08 witness Flavio Sanader‘s testimony
was recorded.

Witness Flavio Sanader inter alia testified re meeting with Robert Ježić and Ivo
Sanader in hotel in Zürich and re his relationship with Robert Ježić in general.

There were no objections to the testimony of witness Flavio Sanader.

After the testimony of witness Flavio Sanader judge Maja Štampar Stipić asked the
defence if there is any new exhibit proposals. There was none.

Judge Štampar Stipić then announced that the Trial Chamber received an e-mail from
Ivo Sanader with the statement through which he was notifying the Court that due to
his medical condition he will not be able to come personally to give his defence today;
however, he stated that he will be able to attend the hearing in the second half of
January 2020.

(*break 09:30 – 10:15)

Aftert the break, judge Štampar Stipić having in mind i) the e-mail/statement of Ivo
Sanader and ii) expert findings and opinion of the medical expert Božidar Šebečić,
MD, further combined with the fact that Ivo Sanader put himself in that medical state,
announced that the Trial Chamber decided for the video recordings of the first
interrogation of Ivo Sanader before USKOK dated 30 August 2011 to be played and
subsequently for the minutes of the hearing, dated 13 November 2012 when Ivo
Sanader gave his defence before County Court to be read in the courtroom.

Ms. Jadranka Sloković objected to a proposed way of presenting Sanader’s defence.


She argued, having in mind Ivo Sanader's medical condition, that it is not correct to
state that the operation was not necessary and/or that it was an elective operation.
The surgical procedure was medically indicated and it was necessary and
consequently, she argued, Ivo Sanader’s rights to a fair trial are violated.

170
Ms. Laura Valković joined the objections of Sanader’s defence by further stating that
the violations of Sanader’s defence rights and a fair trial rights are reflected towards
the position of the second defendant Mr. Zsolt Tamás Hernádi in these proceedings.

Further, when Ms. Sloković inquired re the outcome of the appeal on the continuation
of the trial in Sanader’s absence filed before the Supreme Court of the Republic of
Croatia, judge Štampar Stipić responded that this is still pending. Ms. Sloković further
inquired re the precise date when the Trial Chamber forwarded the Appeal to the
Supreme Court. Judge Štampar Stipić responded that it was done on 13 November
2019 and that although the Supreme Court was told by her that this is an urgent matter
she got response that they are still working on the appeals from 2016. Accordingly,
Ms. Sloković argued that in this way the defence did not get the right to an effective
remedy. Judge Štampar Stipić only concluded that everything was done in accordance
with Article 404 (2) of CPA/08.

Consequently, the Trial Chamber made the following decisions:

i) video recordings of the first interrogation of Ivo Sanader before USKOK, dated 30
August 2011, will be played today in the courtroom, and

ii) the minutes of the hearing dated 13 November 2012, when Ivo Sanader gave his
defence before County Court in Zagreb, will be read today in the courtroom.

After the above mentioned video was played and the minutes of the hearing were read,
judge Štampar Stipić concluded that the evidentiary procedure was completed.

The closing arguments are scheduled for 19 December 2019 at 9:00 a.m.

Concluded at 11:15

(*next hearing – the closing arguments are scheduled for 19 December 2019 at 9:00
a.m. in courtroom no. 37/I)

171
APPENDIX 7

SELECTED MEDIA ARTICLES

Article on Supreme Court decision in Šeparović proceedings

(Jutarnji List, 23.3.2019)

Miroslav Šeparović,, President of the Croatian Constitutional Court, sued professor


Vjekoslav Milicic for slander because he included Šeparović, among plagiarists in his
book. In the first procedure, the Zagreb Municipal Court found Professor Milicic guilty
and sentenced him to a financial fine of HRK 14.500. However, on appeal, the Zagreb
County Court repealed the verdict for procedural reasons. A retrial was conducted at
the Municipal Court, where the irregularities identified by the County Court were
removed. Milicic was again found guilty and received the same financial fine again.

The private plaintiff Miroslav Šeparović,’s attorneys requested that the Supreme Court
assign the appeal to another court in Croatia. And the Supreme Court, adopted their
proposal and delegated the case file to the Pula County Court. [awaiting anoymisation
of judgment before publication 23.3.2019)

Zagreb County Court ovteruned the orginal verdict finding Milicic guilty of having made
false factual statements concerning the doctoral thesis of Miroslav Šeparović,, even
though he was aware of the fact that they were false. The verdict stated that Milicic
acted with an intention to harm the honour and reputation of Miroslav Šeparović,, “who
serves as president of the Constitutional Court of the Republic of Croatia”. Šeparović,’s
duty was taken as an aggravating circumstance against Milicic.

This was one of the main reasons for the annulment of the verdict because at the time
of the publication of Milicic’s book, Šeparović, was not the president, but a judge of the
Constitutional Court. The Zagreb County Court also found disputable that the court of
first instance rejected the proposal of the defence to hear the criminal law expert,
Professor Petar Novoselec, as witness.

However “despite the evident irregularities in the first verdict, it seems that Šeparović,
and his lawyers suspect that the verdict was annulled for completely different reasons.
This is also backed by the explanation of his lawyer Ivana Spehar. “The proposal is
based on important reasons that exist. Which ones? This is a matter of personal
relations between the private plaintiff Miroslav Šeparović, and president of the Zagreb
County Court Ivan Turudić, whose court is competent for making a decision on the
appeal,” She was asked to explain which personal relations she was referring to but
she refused to answer, adding that she “does not want to open Pandora’s box”. She
repeated that she had not seen the decision of the Supreme Court and that she did
not know on which basis it was made, so she did not know whether the reason they
stated in the request, which consists of several ‘sub-reasons’ was accepted or whether
something else prevailed.

It is known that Šeparović, and Turudić had been on friendly terms for a number of
years. In late 1990s, Turudić was also assistant to Šeparović,, who was justice minister
172
at the time. Their relation cooled off when the Constitutional Court repealed ‘Turudić’s’
final verdict against Prime Minister Ivo Sanader in the INA, MOL and Hypo case in
2015. However, despite their mutual animosity, it remains unclear why the Supreme
Court though that other judges of the Zagreb County Court could not make an
independent and unbiased decision on the appeal to the verdict of the court of second
instance in the case, in which Miroslav Šeparović, is the private plaintiff.

Ivan Turudić - “This is, in fact, a request for my removal”

Head of the Zagreb County Court Ivan Turudić said to us that he had not seen the
decision of the Supreme Court, but he pointed out that he did see the proposal of
Šeparović,’s lawyers for the case file delegation. “This is, in fact, a request for my
removal and not a delegation of jurisdiction due to alleged cost-effectiveness of the
criminal procedure. The applicant obviously thinks that it is more cost-effective to
conduct the procedure in a way in which a verdict he desires is handed out. This
proposal is based on untruth because I have not ordered to anyone to make a certain
decision, but colleagues who worked on the case spotted a series of substantial
violations of the law and annulled the verdict of the court of first instance. But, ask
Šeparović, whether he called someone at the County Court and requested something
relating to the case,” Turudić said. “Question is whether such a proposal would have
been accepted if someone else and not the mighty head of the Constitutional Court of
the Republic of Croatia had requested the delegation. Not very likely,” Turudić
concerted.

173
Article on Mittermayer proceedings

(Objektiv – “Lens”, 16.7.2012)

County Court President, according to law, should not hold trials. He should not choose
cases, especially a case against a man who is tied to his promotion. Sanader allegedly
arranged a job at Sv. Duh hospital for Turudić’s wife

Ivan Turudić, one of the most powerful judges in Croatia at the moment was recently
appointed as President of the Zagreb County Court, after being acting president for
some time. However, this appointment, like many others in Turudić’s career, did not
go without loose ends. Shortly after Turudić’s appointment, one of the candidates
competing for the position, County Court judge Oliver Mittermayer, filed a dispute with
the Zagreb Administrative Court, claiming Turudić was appointed to the position
illegally.

In his lawsuit, Mittermayer claims that Turudić got some of the evaluation points, which
are awarded by the County Court Judges’ Council and the State Judges’ Council,
without earning them. He accused the Council chairman of helping Turudić out with
more points and withholding points for Mittermayer. In his lawsuit, Mittermayer says
he filed a complaint with the Supreme Court during the candidacy process and that
the Court found that the County Court Council withheld 7 points for Mittermayer.

Mittermayer also says that the chairman of the Judges’ Council gave Turudić points
which he is not eligible for in accordance to the Methodology for the Evaluation of
Judges. In the last three years, according to the lawsuit, Turudić had 18.28 % of
reversed decisions, which is why he was supposed to get five points less than he was
given by the Chairman of the County Judges’ Council. He also believes it is an
irregularity that throughout 2009 and 2010, as chairman of the Uskok Department,
Turudić’s performance standard was reduced by 50%, although it should have been
reduced by 25%.

In the end, Turudić got 150 points and Mittermayer got 148, although Mittermayer
believes it should have been the other way around.

Neither USKOK nor the State Attorney’s Office, according to our sources, has verified
a single claim from Mittermayer’s suit. And we are not talking about the appointment
of the president of primary school class 3A, this is the president of the one of the most
important courts in the country. If Turudić was appointed to the position like
Mittermayer claims, than this is a new judicial scandal. On the other hand, if
Mittermayer is making false claims, then he should be held liable for that. However, it
seems that nobody in this country cares about that, especially now that we’ve
concluded our negotiations with the EU

Just look back at the Kalambura case, the trial which was supposed to be held at this
court, and where one of the accused was Bozo Milkovic, father of Turudić’s deputy
Darko Milkovic. Objektiv was the only media outlet to report on this. It is interesting to
note that former minister Mirela Holy, a friend of Sanja Kalambura, claimed she knew
the lawsuit would be concluded in her favour. It’s clear why she claimed this. European
delegation wasn’t concerned by this case, nor was County Court President Turudić.

174
Perhaps he didn’t know, or he has too much work and not enough time to deal with
the things which he was appointed to do.

According to the Courts’ Act, Presidents of courts with more than 20 judges may only
work in court administration in order to be able to run the court well. Turudić is the
president of a court with more than 80 judges, and we all know what he is doing. He
is making a circus in the courtroom in the biggest trial since Croatia gained its
independence, the trial of former Prime Minister Ivo Sanader. It is much more
important for Turudić to be a showbiz judge, something he proves from day to day at
the Sanader trial (just remember the insults of Luka Bebic and the Croatian
Parliament), than to run the court’s administration in order to keep the County Court
running well. We’ve spoken to many County Court judges about this, but they all
wanted to stay anonymous because Turudić is their superior.

He doesn’t care about how the court functions – says one of the older County Court
judges – to him, it’s important to remain in the centre of attention, and the fact that
judges work in almost impossible conditions, rooms without air conditioning and so on,
is not important to him.

He adds that no President of the court to date, “as far as he remembers”, was
conducting trails; they were in charge of the organization. Turudić’s predecessor
Mirjana Rigljan did not do it, but it seems that Turudić has no intention of stopping.
The problem is not in the fact that that he has no intention of stopping, but that it’s
illegal. We asked the Ministry of Justice what they think about the fact that the County
Court President is holding trials.

According to the Courts’ Act, Presidents of courts with more than 20 judges are only
allowed to run court administration in order to be successful in running the courts – PR
department of the Ministry of Justice told us, immediately adding a non-sequitur – they
can, but they are not obligated to. Which means that there is no prohibition and in the
case of Turudić, or any other judge of any court, this is not illegal.

There is another interesting detail about Turudić appointment as judge in the Sanader
case. When candidates for the position of court president talked to the members of the
State Judges’ Council, Alan Uzelac, one of the members, asked Turudić how it was
decided who will be the judge in the case against the former Prime Minister. According
to Vjesnik reports, Turudić gave the case to himself because the choice of judges for
the case was very limited. Doesn’t awarding the Sanader case to oneself by free
choice, and not by computer or alphabetical order as Court rules state, constitute a
lack of independence and impartiality? And we also know that former Minister of
Justice Vesna Skare-Ozbolt until recently claimed that Turudić was promised the
position of County Court President by Sanader himself because Turudić sentenced
Petrac, which was very important to the previous government because of Croatian’s
accession to the EU. According to Skare-Ozbolt, Turudić was supposed to be
appointed as president of the court back then, but she did not agree with that, she was
punished and removed from her position as Minister.

We also called her up to get a comment on this topic, but she wasn’t prepared to talk
to us. It seems that nobody is willing to talk about Turudić on-the-record, which just
goes to show how powerful and untouchable he is at the moment. The judges with

175
whom we spoke told us anonymously that they would never give themselves the
Sanader case, especially in the context of former Prime Minister’s friendship with
Turudić.

Rumours are circulating around Zagreb that, as a reward for sentencing Petrac,
Sanader got Turudić’s wife, a gynecologist, a job at the Sveti Duh hospital, although
no job announcement for that position was published and she did not satisfy the
standard procedure for employment of new doctors. Several different sources
confirmed these suspicions anonymously. We spoke to Miran Martinac, director of the
hospital, about this case.

The employment of Dr. Turudić was conducted in 2006 (at the time when Petrac was
sentenced –author’s note) in accordance with legislation (the Work Act, Collective
Agreement for Health and Health Insurance), based on the Employment Plan of the
Sveti Duh general hospital for 2006, which had received approval from the Ministry of
Health at the time.

But let’s leave those speculations about Turudić’s wife aside. The fact remains that he
gave himself the Sanader case (although rumours claim they helped each other),
which is not common practice, and as president of a court with more than 20 judges,
he shouldn’t even be holding the trial. It is also interesting to note that one of the
candidates for the position of court president, Lana Peto-Kujundzic said during her
interview with the State Judges’ Council that cases aren’t given to judges in the right
manner at the County Court and that certain judges always get certain cases.

Turudić is trying or has tried the biggest cases, like Sanader, Polančec, Petrac, Neven
Jurica, the murder of Ivana Hodak, the showbiz dealers, the Dubai affair. Interestingly
enough, Mittermayer claims one fifth of Turudić’s judgments are reversed. The same
happened in the Dubai affair, which involved three entrepreneurs from Zagreb. The
Supreme Court has reversed the ruling because Turudić, believe it or not, failed to
hear the mother of the primary defendant, who was the formal owner of property which
the Court ordered seized in the sentence. The property was seized according to the
new act which states that everyone accused of corruption is obligated to prove the
origin of their property, or else it will be seized. But how could the mother of the
accused prove the origin of her property if she wasn’t called as a witness. Even to a
legal layman, this seems logical, so it is hard to believe that such a procedural error
could have been made by a judge who is often given the most complex and the most
sensitive cases in the country.

176
APPENDIX 8

UNOFFICIAL TRANSCRIPT OF HEARING 19.2.2019

(FINING OF DEFENCE COUNSEL)

JADRANKA SLOKOVIĆ: Well, all right, can we stop with the witness? Taking into
account Mr. Sanader, we really shouldn't push it, and on Monday, we will know what
is the situation. One hour has passed since then, it's two o'clock.

CHAIRWOMAN OF THE PANEL: It has not [interrupted]

LAURA VALKOVIĆ: Yes, it has, precisely one hour.

CHAIRWOMAN OF THE PANEL: Let us proceed to USKOK's questions, and then we


will see.

IVO SANADER: So, may I leave?

CHAIRWOMAN OF THE PANEL: You may. Leave, and then you will [interrupted]

LAURA VALKOVIĆ: But don't leave. You have the right to be present.

CHAIRWOMAN OF THE PANEL: Yes, he knows that he has such right, but if he
doesn't feel well, let him [interrupted]

LAURA VALKOVIĆ: But he has such right.

JADRANKA SLOKOVIĆ: He has the right to be present at the hearing.

LAURA VALKOVIĆ: If he doesn't feel well.

JADRANKA SLOKOVIĆ: Just because he doesn't feel well, we cannot make him
[interrupted]

CHAIRWOMAN OF THE PANEL: All right, because of what? Don't you see that
[unintelligible] the cameras [interrupted]

JADRANKA SLOKOVIĆ: Well, no, turn off the cameras [unintelligible, several persons
talking at the same time]

CHAIRWOMAN OF THE PANEL: I do not know what this is all about. Do you wish to
be present at the examination?

IVO SANADER: Yes.

CHAIRWOMAN OF THE PANEL: Do you allow us to examine the witness without


you?

LAURA VALKOVIĆ: No, no.

177
IVO SANADER: Well, I already told you during the break that I do not.

CHAIRWOMAN OF THE PANEL: I know, we agreed on one hour, but one hour has
not passed.

LAURA VALKOVIĆ: Yes, it has, precisely one hour.

JADRANKA SLOKOVIĆ: One hour!

CHAIRWOMAN OF THE PANEL: All right, well [interrupted]

LAURA VALKOVIĆ: But it has been precisely one hour.

CHAIRWOMAN OF THE PANEL: You cannot endure for a half of an hour more?

IVO SANADER: You said one hour.

CHAIRWOMAN OF THE PANEL: No, I did not, you asked me.

IVO SANADER: Yes, and you agreed.

CHAIRWOMAN OF THE PANEL: I told that... All right, can't you endure any longer?
Because in this way, we will never finish the hearings.

JADRANKA SLOKOVIĆ: But Miss [interrupted]

IVO SANADER: I can notify you, but if you want us to discuss it, please order the
journalists to leave.

CHAIRWOMAN OF THE PANEL: We will not discuss it now.

IVO SANADER: But you asked me! But I wouldn't like to talk about it in front of the
media. I think such things are intimate and inappropriate. I have that right.

CHAIRWOMAN OF THE PANEL: Members of the public, please go outside for a


moment.

IVO SANADER: Miss Chairwoman, please, I told you that I can be concentrated for
maximally two to three hours without harmful health effects. Listen to what the court
expert will say, let him decide. But I know how I feel, I simply cannot wait for one more
hour. I would love to, but I am not young anymore as I was ten years ago, when this
has started. This has been lasting, all the proceedings have been lasting for
[interrupted]

JADRANKA SLOKOVIĆ: Please do give us a break, please [interrupted]

CHAIRWOMAN OF THE PANEL: A break will [interrupted]

178
IVO SANADER: Well, I can't [unintelligible, several persons talking at the same time]
I have had the today's, I have had the today's quota, Miss Judge, I have had the today's
[interrupted]

CHAIRWOMAN OF THE PANEL: We can't bother the witnesses all the time, we can't
do that to the witnesses. The witnesses can't all the time [interrupted]

JADRANKA SLOKOVIĆ: All right, Miss Chairwoman, let's do it like this. You examine
the witnesses, Mr. Sanader will leave, and I will raise an objection and say that he
wanted to be present, but he can't, that he can't and [interrupted]

CHAIRWOMAN OF THE PANEL: Colleague Sloković, you are really creating tension
in these hearings which have now really become [interrupted]

JADRANKA SLOKOVIĆ: I am not creating tension [interrupted]

CHAIRWOMAN OF THE PANEL: Yes, you do!

JADRANKA SLOKOVIĆ: But you know what? There are no cameras now, so I can tell
you [interrupted]

CHAIRWOMAN OF THE PANEL: It doesn't matter that there are no cameras


[interrupted]

JADRANKA SLOKOVIĆ: You do not understand at all what are the defendant's rights.
You really do not understand.

CHAIRWOMAN OF THE PANEL: I thoroughly understand what are the defendant's


rights, but I will not allow their endless invoking.

JADRANKA SLOKOVIĆ: You do not have to allow [interrupted]

CHAIRWOMAN OF THE PANEL: His right is safeguarded by you defending him!

JADRANKA SLOKOVIĆ: No, it is not!

PREDSEDNICA VIJEĆA: Yes, it is!

JADRANKA SLOKOVIĆ: He has the right to be present if he wishes to be present


[interrupted]

CHAIRWOMAN OF THE PANEL: He has the right, but if he can't be present


[interrupted]

JADRANKA SLOKOVIĆ: It is written in the Criminal Procedure Act!

CHAIRWOMAN OF THE PANEL: So, what does that mean? That we should hold
hearings for one hour [interrupted]

JADRANKA SLOKOVIĆ: No! I am telling you, no, I am telling you [interrupted]

LAURA VALKOVIĆ: Yes, if the doctor says so [interrupted]


179
CHAIRWOMAN OF THE PANEL: No, no, no!

LAURA VALKOVIĆ: Yes, yes, yes.

JADRANKA SLOKOVIĆ: Examine [interrupted]

PREDSEDNICA VIJEĆA: We will schedule hearings for every day.

JADRANKA SLOKOVIĆ: Examine the witness [interrupted]

CHAIRWOMAN OF THE PANEL: Every day, we will hold a hearing for one hour!

LAURA VALKOVIĆ: No, we will not, because we have previously scheduled hearings.

CHAIRWOMAN OF THE PANEL: No, you will not be able to do so!

LAURA VALKOVIĆ: You can't harass us.

JADRANKA SLOKOVIĆ: You can't be so violent.

LAURA VALKOVIĆ: All right, then do it, do it.

CHAIRWOMAN OF THE PANEL: I am deciding, the court is deciding [interrupted]

JADRANKA SLOKOVIĆ: Can I tell you something!?

CHAIRWOMAN OF THE PANEL: Don't yell at me.

JADRANKA SLOKOVIĆ: You are yelling!

CHAIRWOMAN OF THE PANEL: Fine her!

JADRANKA SLOKOVIĆ: Fine me!

CHAIRWOMAN OF THE PANEL: Fine the defense attorney of the first defendant with
HRK 10,000 for yelling at the court.

JADRANKA SLOKOVIĆ: All right. The judge has been yelling at me all the time
[interrupted]

CHAIRWOMAN OF THE PANEL: No, I have not been yelling at you [interrupted]

JADRANKA SLOKOVIĆ: No. You have been yelling at me.

CHAIRWOMAN OF THE PANEL: Because you have been preventing the hearing
[interrupted]

JADRANKA SLOKOVIĆ: We have everything recorded [interrupted]

CHAIRWOMAN OF THE PANEL: Feel free to record, moreover, feel free to publish it.
You have been strongly hindering the conducting of these proceedings [interrupted]

JADRANKA SLOKOVIĆ: No, I have not been hindering.


180
CHAIRWOMAN OF THE PANEL: You have been hindering.

JADRANKA SLOKOVIĆ: Please let me ask you just one thing.

CHAIRWOMAN OF THE PANEL: You have been hindering.

JADRANKA SLOKOVIĆ: The hearing can be held. Let the entire hearing be held
[interrupted]

CHAIRWOMAN OF THE PANEL: No, no. So that you can say that the defendant can't
[interrupted]

JADRANKA SLOKOVIĆ: Please just record in the minutes that we are requesting a
medical examination of Mr. Sanader.

CHAIRWOMAN OF THE PANEL: Agreed, all of that has already been decided.

JADRANKA SLOKOVIĆ: And that by that time, if he can't be present [interrupted]

CHAIRWOMAN OF THE PANEL: It has been decided. It has been decided.

JADRANKA SLOKOVIĆ: All right. If he can't [interrupted]

LAURA VALKOVIĆ: Let her say.

JADRANKA SLOKOVIĆ: Can I say one sentence [interrupted]

CHAIRWOMAN OF THE PANEL: I haven't asked you anything, it's enough, colleague,
it's really enough!

LAURA VALKOVIĆ: Do you hear yourself?

CHAIRWOMAN OF THE PANEL: Are you a defense attorney? Do you hear yourself?
Why are you looking at me all the time with a surprised expression? Do you
[interrupted]

LAURA VALKOVIĆ: That is my expression, you will have to get used to it.

CHAIRWOMAN OF THE PANEL: No, that is not your expression. Please go ahead.

JADRANKA SLOKOVIĆ: Do you want me to get sick in the end as well?

CHAIRWOMAN OF THE PANEL: I don't know.

JADRANKA SLOKOVIĆ: Well, just this, I would like to tell you one thing. I got nervous
now.

CHAIRWOMAN OF THE PANEL: Me too.

JADRANKA SLOKOVIĆ: I would like to tell you one thing. So, if you wish to resume
the hearing, resume it [interrupted]

181
CHAIRWOMAN OF THE PANEL: We will resume it after one hour.

JADRANKA SLOKOVIĆ: However, please record in the minutes that Mr. Sanader
[interrupted]

CHAIRWOMAN OF THE PANEL: Yes.

JADRANKA SLOKOVIĆ: Is not able to endure it anymore because of his health


condition, and that his defense opposes the resuming of the witness examination
without his presence.

CHAIRWOMAN OF THE PANEL: All right, then we will say it publicly. There is no
reason to hide it. Call the journalists. And let everything go to... Why would we keep it
secret? So what? The court has time by four o'clock. So, let us record in the minutes
everything that needs to be recorded [interrupted]

JADRANKA SLOKOVIĆ: Please give us a five-minute break [interrupted]

CHAIRWOMAN OF THE PANEL: The cameramen are recording me, so it will


[interrupted]

JADRANKA SLOKOVIĆ: Because I feel sick.

182