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This compilation gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union. By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law to build strategic litigation avenues.

HANŽEVAČKI v. CROATIA Applications nos. 49439/21

Lack of effective access to Constitutional Court due to unforeseeable retroactive application of admissibility criteria for lodging a constitutional complaint of inadequate conditions of detention: violation of Article 6 § 1; poor detention conditions: violation of Article 3.

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HANŽEVAČKI v. CROATIA Applications no. 49439/21 Second Section  5 September 2023

Art 6 § 1 (civil) ■ Lack of effective access to Constitutional Court due to unforeseeable retroactive application of admissibility criteria for lodging a constitutional complaint of inadequate conditions of detention ■ Applicant no longer in a position to fulfil procedural condition of using preventive remedy before availing himself of compensatory remedy ■ Very essence of right of access to a court impaired
Art 3 (substantive) ■ Degrading treatment ■ Conditions of detention

Facts Between 2008 and 2013 the applicant was held in different prisons, namely Varaždin Prison, Zagreb Diagnostics Centre (“Zagreb Prison”), Lepoglava State Prison and Bjelovar Prison. In October 2020 he lodged a constitutional complaint against a civil judgment dismissing his action for compensation for his conditions of detention. His complaint was declared inadmissible in March 2021 by the Constitutional Court, through the application of that court’s then leading decision no. U-III-2757/2018 of 4 February 2020, for failure to use the existing preventive remedies during his stay in the prison conditions complained of.

Law Article 6 § 1

After March 2020, following the Constitutional Court’s decision no. U-III-2757/2018, a complainant could not successfully raise his or her complaints of inadequate conditions of detention in a constitutional complaint after the use of a civil action for damages (the compensatory remedy) if he or she had not first properly exhausted the preventive remedies (the making of a complaint to the prison administration and/or the sentence-execution judge directly) during his or her stay in detention.

The use of the preventive remedies had become obligatory for all complainants who had wished to lodge a constitutional complaint in civil proceedings for damages, irrespective of whether or not they still had had the possibility of using the preventive remedies. That had differed with the Constitutional Court’s earlier position – applicable at the time of the Court’s assessment of the relevant remedies in its leading judgment in Ulemek v. Croatia – which had not required the use of preventive remedies as a first step.

In the subsequent case of Janković and Others v. Croatia (dec.), although the Court had confirmed that that development in the Constitutional Court’s case-law had been substantively in line with the Court’s case-law in Ulemek concerning the complementary nature of the preventive and compensatory remedies in the context of conditions of detention, it had expressed concerns as regards the retroactive nature of the Constitutional Court’s new case-law. Specifically, in the absence of a transitionary period or any indication as regards the manner in which decision no. U-III-2757/2018 was to apply over time, the retroactive application of new admissibility requirement raised an issue of foreseeability, and thus effectiveness of the constitutional complaint as a remedy for complainants who had used the compensatory remedy but not the preventive remedy before 10 September 2020, and had no longer been in a position to do so with respect to the particular conditions of detention.As of March 2022, following the Court’s decision in Janković, the Constitutional Court had adjusted its approach (decision no. U‑III-3047/2019 of 29 March 2022) and the condition of using the preventive remedy was no longer applied in cases where the complainant could no longer have used that remedy.

In the present case, the dismissal of the applicant’s constitutional complaint through the application of decision no. U-III-2757/2018 had constituted a restriction on his right of access to the Constitutional Court. As noted by the Constitutional Court in its subsequent case-law, the relevant moment for the assessment of the foreseeability of a restriction on access to a court was the time when it had been possible for the applicant to observe any such limitation. In the applicant’s case, that had been the period between 2008 and 2011, while he had still been incarcerated and could have exhausted the preventive remedies, had he known that it would become a condition for the admissibility of his constitutional complaint in the subsequent civil proceedings.However, at the relevant time the applicant had believed that he had had a choice between the preventive and the compensatory remedies, and he had chosen the latter, trusting that he would have been able to have his claim examined by the civil courts and ultimately by the Constitutional Court.In fact, on account of the unexpected change in the Constitutional Court’s practice with retroactive effect, the applicant had no longer been in a position to fulfil the newly imposed condition of using the preventive remedy. Moreover, in a situation where the practice of the Constitutional Court had been evolving, and in line with the principle of subsidiarity, it could not be held against the applicant for having requested that the highest national court in Croatia rule on his case.

Accordingly, the unforeseeable retroactive imposition of a procedural condition, which the applicant could no longer fulfil, had restricted his access to a court to such an extent that the very essence of that right had been impaired.

Conclusion Violation of Articles 6 § 1

The Court also found, unanimously, a violation of Article 3 in respect of the applicant’s conditions of detention in Zagreb and Lepoglava prisons, but no violation of Article 3 regarding his conditions of detention in Bjelovar prison. The applicant’s complaint in respect of Varaždin prison was declared inadmissible for failure to exhaust domestic remedies.

Article 41 EUR 9,900 in respect of non-pecuniary damage.

See also Ulemek v. Croatia, no. 21613/16, 31 October 2021, Legal SummaryJanković and Others v. Croatia (dec.), no. 23244/16 et al., 21 September 2021, Legal Summary

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