Information Note on the Court’s case-law 254

August-September 2021

Janković and Others v. Croatia (dec.) - 23244/16, 26032/16, 26636/16 et al.

Decision 21.9.2021 [Section I]

Article 35

Article 35-1

Exhaustion of domestic remedies

Premature complaints on retrospective application of Constitutional Court case-law relating to inadequate prison condition remedies: inadmissible

Facts – The applicants alleged that they had been held in inadequate conditions of detention in several prison facilities. They all have proceedings currently pending before the domestic courts.

Law – Article 35 § 1: In the recent leading Ulemek judgment, the Court had elaborated extensively on the different aspects of its case-law concerning the effectiveness of remedies and compliance with the six-month rule in conditions of detention cases. Following a careful examination of the different practical aspects in the operation of those remedies at the relevant time, the Court had confirmed its earlier case-law as to the existence of effective remedies in Croatia concerning allegations of inadequate conditions of detention.

However, after the adoption of Ulemek there had been changes in the Constitutional Court’s case-law. In decision no. U-III-2757/2018, adopted on 4 February 2020, the Constitutional Court had established the principle according to which an appellant cannot successfully raise his or her complaints of inadequate conditions of detention in a constitutional complaint after the use of a civil action for damages if he or she has not first properly exhausted the preventive remedy during his or her stay in detention. That contrasted with the Constitutional Court’s earlier position – applicable at the time of the Ulemek assessment – according to which, for the purposes of the exhaustion requirement before lodging a constitutional complaint with it, appellants had not been required first to use the preventive remedy if they later availed themselves of a civil action for damages (the compensatory remedy) before the relevant civil court concerning allegations of inadequate conditions of detention.

The Court therefore had to determine whether the constitutional complaint was still an effective remedy which the applicants were required to exhaust for the purpose of Article 35 § 1.

The evolution of the Constitutional Court’s case-law in the aforementioned decision was 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. The effectiveness of the remedy before the Constitutional Court could not therefore be called into question from the perspective of the manner in which the Constitutional Court had construed the duty of exhaustion of the preventive and compensatory remedies available before the lower authorities.

However, the Court shared the applicants’ concerns as regards the retroactive nature of the Constitutional Court’s new case-law. The leading decision in the case no. U-III-2757/2018 had been adopted in February 2020 with regard to a case introduced in 2018.

The Court had held that in cases like the present one, where the remedy in question had been the result of interpretation by the courts, it normally took six months for such a development of the case-law to acquire a sufficient degree of legal certainty before the public might be considered to be effectively aware of the domestic decision which had established the remedy and the persons concerned be enabled and obliged to use it. As decision no. U-III-2757/2018 had been published on 10 March 2020, no issue as regards the effectiveness of the constitutional complaint arose for those applicants who would be in a position to use the relevant remedies after 10 September 2020.

On the other hand, in the absence of a transitionary period or any indication as regards the manner in which decision no. U-III-2757/2018 would apply in time, the retrospective application of the admissibility criteria for a constitutional complaint established in that decision raised an issue of effectiveness of the constitutional complaint for all applicants who would use the compensatory remedy but have not used the preventive remedy before 10 September 2020, and were no longer in a position to do so with respect to the particular conditions of detention. For those applicants, the retrospective application of the Constitutional Court’s leading case-law raised an issue of foreseeability, and thus effectiveness, of the constitutional complaint as a remedy in the conditions of detention context.

However, despite those concerns, the Court found it inappropriate, at this stage, to consider the constitutional complaint to be an ineffective remedy due to the retrospective application of that case-law. In that connection the Court was in particular mindful of the evolving nature of the Constitutional Court’s case-law in that context and the substantive adequacy of the findings in decision no. U-III-2757/2018. The primary responsibility for protecting the rights set out in the Convention lay with the domestic authorities and, in order to comply with the principle of subsidiarity, the applicants were in principle required to afford the Constitutional Court, as the highest court in Croatia, the opportunity to remedy their situation.

Nevertheless, the Court would be prepared to change its approach as to the effectiveness of the remedy in question for applicants in the situation described above, should the practice of the Constitutional Court show that constitutional complaints were being continually refused on the basis of the retroactive application of the case-law in decision no. U-III-2757/2018, without the elaboration of a transitory period or any indication as regards the manner in which the case-law would apply in time.

Having regard to the above considerations, and the fact that the present applicants’ cases were pending either before the civil courts or the Constitutional Court, the applicants’ complaints under Articles 3 and/or 8 were premature.

Conclusion : inadmissible (failure to exhaust domestic remedies).

The Court also decided, unanimously, that the applicants’ complaint under Article 13 was manifestly ill-founded.

(See also Ulemek v. Croatia , 21613/16, 31 October 2019, Legal Summary , and Kirinčić and Others v. Croatia, 31386/17 , 30 July 2020)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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