Legal summary
June 2024
Zelenika v. Croatia (dec.) - 39801/23
Decision 21.5.2024 [Section II]
Article 6
Constitutional proceedings
Article 6-1
Access to court
Dismissal of constitutional complaint for failure to lodge appeal on points of law to the Supreme Court, based on Constitutional Court’s new practice following legislative amendments: inadmissible
Facts – On March 2023 the applicant brought a civil action seeking compensation for the conditions of his detention and breaches of his rights to respect for his private and family life resulting from inadequate organisation of prison visits. The first-instance court ruled in his favour with regard to the former claim and this judgment was upheld at second instance. On 6 June 2023 the Constitutional Court, declared inadmissible the applicant’s constitutional complaint, lodged on 10 March 2023, for non-exhaustion of other available remedies. That court, applying its new practice as established in two decisions published on 15 and 22 March 2023, held that he had failed to lodge a petition for leave to appeal on points of law with the Supreme Court based on the grounds provided in the Civil Procedure Act, as amended by the 2022 Amendments which entered into force in July 2022.
The applicant complained that the Constitutional Court’s decision was not foreseeable, given that the decisions signalling the change in its practice had been published after he had lodged his constitutional complaint.
Law – Article 6 § 1:
Access to the Constitutional Court through the possibility of lodging a constitutional complaint was restricted by certain admissibility conditions. The rule requiring complainants to exhaust other available remedies before lodging a constitutional complaint aimed to ensure the proper administration of justice by preventing the overburdening of the Constitutional Court with a large number of cases raising human rights issues which could be resolved by the Supreme Court. The central issue in the present case was whether the Constitutional Court’s application of that rule to the applicant’s case, in particular its new practice, had been proportionate to that aim and, more specifically, whether it had been foreseeable.
The requirement for parties to civil proceedings who intended to lodge a constitutional complaint to first lodge an appeal on points of law whenever that appeal was available had been in force since 1991. The Constitutional Court’s practice making the application of that admissibility condition more flexible had been prompted by the changes in the legal regulation of appeals on points of law between 2008 and 2022 and the resultant practice of the Supreme Court, from which it had not always been clear whether that remedy had been admissible in any given case. Having regard to the Court’s findings in Zvolský and Zvolská v. the Czech Republic, any other, less flexible approach, in the given circumstances, would have risked hindering access to the Constitutional Court in a manner incompatible with Article 6 § 1. It was therefore to be expected that, once the conditions for the admissibility of appeals on points of law had become clearer after the entry into force of the 2022 Amendments, the Constitutional Court would adjust its practice. Further, the new grounds for appeals on points of law largely corresponded to those for lodging a constitutional appeal. Indeed, it would have been unreasonable to expect that the Constitutional Court’s practice would not change.
As regards the applicant’s argument that it normally took six months for a development of the case-law to acquire a sufficient degree of certainty before the public might be considered to be effectively aware of it, the Court noted that that was only one of the elements which might be of importance in assessing foreseeability and was not necessarily decisive. In the present case, all the other elements suggested that the shift in the Constitutional Court’s practice had been reasonably foreseeable. Moreover, that shift had been prompted by legislative amendments which took effect after a certain period of time, in the manner of a vacatio legis, thus allowing all interested persons to become acquainted with the new rules. In that connection, the Court also noted that more than seven months had passed between the entry into force of the 2022 Amendments and the lodging of the applicant’s constitutional complaint.
In conclusion, while it seemed evident that the applicant’s constitutional complaint would not have been declared inadmissible had the Constitutional Court not changed its practice, that change had been reasonably foreseeable. Lastly, his case had been examined on the merits at two levels of court with full jurisdiction and there were no elements suggesting that the rejection of his constitutional complaint had disproportionately restricted his right of access to court.
Conclusion: inadmissible (manifestly ill-founded).
In view of its above findings, the Court dismissed the applicant’s complaints under Articles 3 and 8 inadmissible for non-exhaustion of domestic remedies.
(See also Zvolský and Zvolská v. the Czech Republic, 46129/99, 12 November 2002, Legal Summary; Janković and Others v. Croatia (dec.), 23244/16 et al, 21 September 2021, Legal Summary; Hanževački v. Croatia, 49439/21, 5 September 2023, Legal Summary)
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This summary by the Registry does not bind the Court.
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