CEDH · CASELAW;CLIN;ENG — 8 octobre 2024

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Croatia (dec.) - 5584/24 Decision 8.10.2024 [Section II] Article 6 Constitutional proceedings Criminal proceedings Article 6-1 Access to court Dismissal of constitutional complaint for failure to lodge a request for extraordinary review of a final judgment in criminal proceedings with the Supreme Court, based on Constitutional Court’s new practice following legislative developments: inadmissible Facts – In September 2022 the applicant was found guilty of two criminal offences against sexual freedom and sentenced to six and a half years’ imprisonment. That conviction was upheld at second instance and his sentence was increased to seven and a half years’ imprisonment. On 27   October 2023, the Constitutional Court declared inadmissible the applicant’s constitutional complaint, lodged on 5   September 2023, for non-exhaustion of other available remedies. That court, applying its new practice as established in a decision of 21   December 2021 (published on 19   January 2022), held that the applicant had failed to lodge a request for extraordinary review of a final judgment with the Supreme Court based on the grounds provided in the Code of Criminal Procedure, as amended in 2013. The applicant complained that the Constitutional Court’s decision declaring his constitutional complaint inadmissible applying the new practice had violated his right of access to a court. 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 criminal cases raising human rights issues which could be resolved by the Supreme Court. The only 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 evolution of the Constitutional Court’s case-law was in line with the developments in the legal regulation of requests for extraordinary review of a final judgment. In particular, since 2013, under the Code of Criminal Procedure, a person sentenced to unconditional imprisonment, juvenile detention or psychiatric internment could use the remedy in question if convicted in violation of the fundamental human rights and freedoms guaranteed by the Croatian Constitution and the Convention and a serious violation of the right to a fair trial under the same code was a ground for using that remedy. Those grounds entirely corresponded to those for lodging a constitutional complaint. Indeed, it would have been unreasonable to expect that the Constitutional Court’s practice would not change. The change in the criteria for the admissibility of constitutional complaints in criminal proceedings established by the Constitutional Court’s decision of 21 December 2021 had only taken effect on 19 July 2022, that is, six months following its publication, enabling all interested persons to become acquainted with the new rule. Thus, no issue arose as regards the foreseeability of the requirement to lodge a request for extraordinary review of a final judgment before turning to the Constitutional Court for those applicants who were and would have been able to use that remedy after 19 July 2022. Since the applicant in the present case had lodged his constitutional complaint on 5 September 2023, the application of the Constitutional Court’s new practice to his case had been foreseeable in the circumstances. Moreover, more than a year had passed between the entry into force of the new practice regarding the exhaustion of remedies in criminal proceedings and the lodging of the applicant’s constitutional complaint. The Constitutional Court had meanwhile published on its website two decisions issued on 16   February 2023 implementing the new practice in subsequent cases before it and had amended instructions for completing the constitutional complaint form. Lastly, as regards the applicant’s argument that the Constitutional Court had wrongly held that the statutory criteria for lodging an extraordinary review request had been met in his case, the Court noted that an unconditional prison sentence had been imposed on him, which was one of the criteria for lodging the request, and in his constitutional complaint he had complained of a violation of his right to a fair trial, which was a ground for lodging such a request. Conclusion : inadmissible (manifestly ill-founded). (See also 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 ; Zelenika v.   Croatia (dec.), 39801/23, 21   May 2024, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .