SECOND SECTION

CASE OF HANŽEVAČKI v. CROATIA

(Application no. 49439/21)

JUDGMENT

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

STRASBOURG

5 September 2023

This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
 HANŽEVAČKI v. CROATIA JUDGMENT

In the case of Hanževački v. Croatia,

The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Arnfinn Bårdsen, President,
Jovan Ilievski,
Egidijus Kūris,
Pauliine Koskelo,
Frédéric Krenc,
Diana Sârcu,
Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 49439/21) against the Republic of Croatia lodged with
the Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a Croatian
national, Mr Kristijan Hanževački (“the applicant”), on 1 October 2021;
the decision to give notice to the Croatian Government (“the
Government”) of the application;
the parties’ observations;
Having deliberated in private on 4 July 2023,
Delivers the following judgment, which was adopted on that date:

INTRODUCTION
1. The present case concerns the applicant’s conditions of detention in
Varaždin, Zagreb, Lepoglava and Bjelovar prisons and his alleged lack of
effective access to the Constitutional Court on account of the retroactive
application of admissibility criteria for lodging a constitutional complaint in
his case.

THE FACTS
2. The applicant was born in 1983 and lives in Kućan Marof. He was
represented by Ms L. Horvat, a lawyer practising in Zagreb.
3. The Government were represented by their Agent, Ms Š. Stažnik.
4. The facts of the case may be summarised as follows.
5. In 2008 the applicant was convicted of arson and sentenced to a term
of imprisonment of two years. In 2010 he was convicted of another criminal
offence and sentenced to four years and four months’ imprisonment. On
5 November 2012 he was convicted of yet another criminal offence and
sentenced to a total of four years and eight months’ imprisonment.

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I. THE APPLICANT’S PRISON CONDITIONS

6. Between 12 April and 24 December 2008 the applicant was held in

pre-trial detention in Varaždin Prison (Istražni zatvor u Varaždinu). Between
12 April and 17 December 2008 he was placed in a cell measuring
26.76 sq. m, excluding sanitary facilities, with five to ten other prisoners.
Between 18 and 24 December 2008 he was placed in a cell measuring
17.01 sq. m, excluding sanitary facilities, with five other detainees. On
24 December 2008 the applicant was released from pre-trial detention.
7. On 30 October 2009 the applicant was again arrested and sent to the
Zagreb Diagnostics Centre (Centar za dijagnostiku u Zagrebu – hereinafter
“Zagreb Prison”), where he stayed until 13 January 2010, with a view to a
proposal being drawn up for his referral to a correctional facility. He stayed
in a cell measuring 21.10 sq. m with six to seven other prisoners. A partially
partitioned sanitary facility measuring 1.57 sq. m formed part of the cell.
Food was served in the cell while there was a constant smell coming from the
sanitary facility. The inmates were allowed one hour’s walk outside the cell
every day and they were locked in the cell for the remainder of the day.
Moreover, the inmates were only allowed to shower twice a week and no
recreational or vocational activities were organised.
8. Between 13 January 2010 and 6 September 2011 the applicant was
serving his prison sentence in Lepoglava State Prison (Kaznionica
u Lepoglavi). Between 13 January and 2 February 2010 he was held in a cell
measuring 7.7 sq. m, excluding sanitary facilities, with three other prisoners;
between 2 and 9 February 2010 and between 26 April and 6 September 2011
he stayed in a cell measuring 9.8 sq. m with three other prisoners; between
9 February and 4 April 2010 he stayed in a cell measuring 8.07 sq. m with
three other prisoners; and between 4 April 2010 and 24 April 2011 he stayed
in a cell measuring 33.12 sq. m with seven to eleven other prisoners. During
part of his stay there the applicant worked, and he also completed a vocational
programme.
9. Between 6 September 2011 and 29 May 2013 the applicant was serving
his prison sentence in Bjelovar Prison (Zatvor u Bjelovaru). During the first
eighty-five days he stayed in a cell measuring 17.8 sq. m; for seventeen of
those days he shared the cell with five other prisoners, thus having 2.96 sq. m
of personal space between 21 and 23 September, 27 and 29 September, on
9 November and from 20 to 29 November 2011. He stayed in the same cell
for twenty-two days with four other prisoners, for thirty-eight days with three
other prisoners and for eight days with two other prisoners. For the remaining
546 days of his stay in Bjelovar Prison, the applicant stayed in a cell
measuring 9.22 sq. m with one other prisoner for 530 days and alone for
sixteen days.

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II. THE APPLICANT’S COMPLAINTS CONCERNING PRISON

CONDITIONS AND CIVIL PROCEEDINGS

10. On 19 January 2012, while serving his sentence in Bjelovar Prison,

the applicant submitted a request for judicial protection to the
sentence-execution judge of the Bjelovar County Court (Županijski sud u
Bjelovaru), complaining of inadequate conditions in Varaždin, Zagreb,
Lepoglava and Bjelovar prisons. On the same date he also lodged an
application for a friendly settlement with the Varaždin Municipal State
Attorney’s Office, which was dismissed.
11. Following a visit to Bjelovar Prison and after requesting a statement
from the prison authorities, on 22 March 2012 the sentence-execution judge
dismissed the applicant’s complaint as ill-founded, holding that his conditions
of detention were satisfactory.
12. On 12 April 2012 the appeal panel of the Bjelovar County Court
dismissed a complaint by the applicant against that decision.
13. On 5 December 2012 the applicant brought a civil action against the
State in the Zagreb Municipal Civil Court (Općinski građanski sud
u Zagrebu), seeking damages in the amount of 70,550 Croatian kunas
(HRK – approximately 9,400 euros (EUR)).
14. On 10 October 2018 the first-instance court dismissed the applicant’s
claim, finding that he had failed to prove the existence of a breach of his
personality rights of such gravity, intensity and duration as to justify an award
in respect of non-pecuniary damage. The applicant was ordered to reimburse
the State’s costs of legal representation in the amount of HRK 12,500
(approximately EUR 1,660).
15. On 21 July 2020 the Osijek County Court (Županijski sud u Osijeku)
dismissed an appeal by the applicant as ill-founded.
16. On 23 October 2020 the applicant lodged a constitutional complaint
against the second-instance judgment. Relying on Articles 23 § 1, 29 § 1 and
35 of the Constitution, as well as on Articles 3, 6 and 13 of the Convention,
the applicant complained about the violation of his civil rights and maintained
that his conditions of detention in the various prisons had been inhuman and
degrading, contrary both to the Convention and the domestic law. He also
complained that the domestic courts had wrongly and arbitrarily dismissed
his civil claim for compensation of damage in that respect without sufficient
reasoning and ordered him to pay costs of proceedings.
17. On 18 March 2021 the Constitutional Court dismissed the applicant’s
constitutional complaint as ill-founded as regards the costs of proceedings,
finding that he had failed to show that those costs had imposed a significant
financial burden on him. At the same time, his complaint concerning the
conditions of detention was declared inadmissible because the applicant had
never used the existing preventive remedies (see paragraph 27 below) during

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his stay in the detention conditions complained of. The above-mentioned

decision was served on the applicant on 2 April 2021.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

18. The relevant domestic law and practice are set out in Ulemek
v. Croatia (no. 21613/16, §§ 38-57, 31 October 2019).
19. On 4 February 2020, in its decision no. U-III-2757/2018 (published in
Official Gazette No. 26/2020 of 10 March 2020), the Constitutional Court
examined the case of an appellant who had been detained in Zagreb Prison
and who had lodged a constitutional complaint in 2018 against a civil court
judgment dismissing his civil action for compensation for inadequate
conditions of detention in that prison. The Constitutional Court considered
that the case fell to be examined under Article 23 § 1 and Article 25 § 1 of
the Constitution (see Ulemek, cited above, § 38, for the text of those
provisions) and Article 3 of the Convention and declared it inadmissible. The
relevant parts of the decision read as follows:
“3. The constitutional complaint [against the civil courts’ judgment] is inadmissible
because one of the conditions for lodging a constitutional complaint has not been met,
namely, the relevant legal remedies had not been exhausted.
In particular, before lodging a civil action for damages during his stay in the prison,
the appellant had not used the remedy for the protection of his rights as provided by the
Enforcement of Prison Sentences Act ... and therefore the relevant remedy concerning
his constitutional complaint under Articles 23 and 25 of the Constitution and Article 3
of the Convention was not pursued.
This decision of the Constitutional Court represents a departure from its earlier case-
law, for which the relevant reasons are provided below.
...

General principles
7. The Constitutional Court begins by noting that a civil action for damages is only
one aspect of the overall system of effective remedies for prisoners concerning the
conditions of their detention. The first aspect of the overall system [of remedies]
concerns the preventive remedy under the Enforcement of Prison Sentences Act which
is aimed at improving the conditions of detention of prisoners: in other words, [it is
aimed at] bringing the ongoing violation relating to inadequate conditions of detention
to an end. [On the other hand], a civil action for damages concerning inadequate
conditions of detention is the other part of the overall [system of remedies] (the
compensatory remedy).
8. As regards the effectiveness of remedies [in the context of conditions of detention],
the Constitutional Court accepts the general principles developed in the case-law of the
European Court of Human Rights under Article 13 of the Convention [see also the
relevant principles set out in Ulemek, [cited above,] §§ 71 and 83-86] ...
11. The Constitutional Court notes that, in accordance with the Enforcement of
Prison Sentences Act, prisoners have at their disposal an effective remedy capable of
bringing to an end a breach of their rights guaranteed under Article 23 § 1 and

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Article 25 § 1 of the Constitution and Article 3 of the Convention ... In particular,

prisoners have an opportunity to lodge a complaint [with the prison administration]
under section 15 of the Enforcement of Prison Sentences Act and a complaint with the
sentence-execution judge under section 17 of the Enforcement of Prison Sentences Act.
In this connection, the Constitutional Court stresses the importance of the powers
granted to the sentence-execution judge under [the above-mentioned Act], which
represent the expression of the State’s duty to ensure adequate conditions of detention.
Having regard to this duty, it is sufficient that the prisoner raises an arguable claim that
the conditions of his or her detention or treatment in prison are contrary to the
requirements of Article 23 § 1 and Article 25 § 1 of the Constitution or Article 3 of the
Convention, and it is then for the State authorities to examine that claim and to establish
the facts. These are in fact the powers vested in the sentence-execution judge.
On the other hand, a civil court which is called upon to examine an action for
compensation for damage does not have investigative powers and its [examination of
the case] is limited to the parties’ proposals and the rules on the burden of proof,
according to which it is exclusively for the claimant to prove his or her claim. Having
regard to the special nature of the duty which the State has towards prisoners, civil
proceedings are not an adequate legal remedy for the protection of prisoners from
inhuman conditions [of detention] or conduct [by the prison administration]. Moreover,
civil proceedings are not an appropriate way to put an end to [ongoing] breaches. In
addition, the sentence-execution judge has the duty to act in a manner in which,
according to the relevant principles, effective protection of the prisoners’ rights and
interests is guaranteed (section 44(2) of the Enforcement of Prison Sentences Act),
which is achieved through, inter alia, short time-limits for the taking of actions [by the
sentence-execution judge] ...
12. As regards civil proceedings for damages concerning conditions of detention, the
Constitutional Court stresses that appellants who have not used the preventive remedy
under the Enforcement of Prison Sentences Act cannot raise before the Constitutional
Court, in their constitutional complaints lodged against judgments of the civil courts
concerning actions for compensation for damage for inadequate conditions of detention,
complaints under Article 23 § 1 and Article 25 § 1 of the Constitution.
While in civil proceedings for damages relating to breaches of personality rights
concerning inadequate conditions of detention the court establishes the existence of the
legal conditions for compensation for damage, the subject matter of the Constitutional
Court’s assessment relating to the conditions of detention ... is different and goes
beyond the scope of the judicial assessment conducted in civil proceedings for damages.
13. When the Constitutional Court examines appellants’ complaints under Article
23 § 1 and Article 25 § 1 of the Constitution and Article 3 of the Convention, the focus
of its assessment is not on the civil proceedings for damages but on the conditions in
which the appellant served or is serving his or her sentence of imprisonment and the
manner in which the State responded to his or her complaints [in that respect].
If the appellant failed to give an opportunity to the State to respond to such a
complaint, notably by protecting him or her from inhuman conditions of imprisonment
in breach of Article 23 § 1 and Article 25 § 1 of the Constitution and Article 3 of the
Convention, he or she cannot raise that issue in a constitutional complaint lodged
against a judgment of the civil courts concerning his or her action for compensation for
damage [relating to allegedly inadequate conditions of detention].

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Application of those principles to the present case

14. ... The examination of the [civil court’s] case file shows that the appellant did not
use the remedies under the Enforcement of Prison Sentences Act; he did not lodge a
complaint [with the prison administration] under section 15 of the Enforcement of
Prison Sentences Act or a complaint [with the sentence-execution judge] under
section 17 of the Enforcement of Prison Sentences Act.
Given that he spent sixty-five days in the prison, the Constitutional Court considers
that the appellant had sufficient time to use the remedies under the Enforcement of
Prison Sentences Act.
In view of the above, the Constitutional Court finds that the appellant failed to use the
relevant legal remedy, namely the effective remedy for the protection of his
constitutional rights under Article 23 § 1 and Article 25 § 1 of the Constitution, and
thus he cannot successfully raise these complaints in the constitutional complaint.
15. It has therefore been decided [to declare the constitutional complaint
inadmissible].”
20. On 29 March 2022, in decision no. U-III-3047/2019, the
Constitutional Court held as follows:

“Admissibility of the constitutional complaint

19. It follows that, before lodging the constitutional complaint, the complainant used
only the compensatory remedy in respect of inadequate conditions of detention
(compare paragraphs 55 and 63 of the [Court’s] decision in Janković and Others
[v. Croatia (dec.), nos. 23244/16 and 4 others, 21 September 2021]) but before using
that remedy, he had not used preventive remedies on the basis of the Execution of Prison
Sentence Act. Bearing in mind that he could only have used those remedies from 2012
to 2013, but that at that time he could not have foreseen that the use of preventive
remedies would become a criterion for the admissibility of a constitutional complaint,
the Constitutional Court, applying the standpoint expressed in paragraph 63 of the
[Court’s] decision in Janković and Others [cited above], concludes that in this particular
case, the failure to use preventive remedies on the basis of the Enforcement of Prison
Sentences Act cannot be imputable to the complainant.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

21. The applicant complained that the Constitutional Court had declared
his constitutional complaint inadmissible by the retroactive application of its
admissibility criteria. He relied on Article 6 § 1 and Article 13 of the
Convention, asserting that a constitutional complaint had been ineffective in
his case. Given that Article 6 § 1 is to be considered a lex specialis in relation
to Article 13 (see, for example, Kardoš v. Croatia, no. 25782/11, § 63,
26 April 2016), the Court will examine this complaint solely under
Article 6 § 1 of the Convention, which in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair
... hearing ... by [a] ... tribunal ...”

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A. Admissibility

22. The Court notes that this complaint is neither manifestly ill-founded
nor inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.

B. Merits

1. The parties’ observations

23. The applicant argued that the Constitutional Court’s decision
no. U-III-2757/2018 should not have been applied in his case because, during
his detention in the conditions complained of, that court’s practice had not
required the use of the preventive remedy as a condition for the use of the
compensatory one. The application of such a precondition had thus not been
foreseeable for the applicant and he should not have been forced to bear the
burden of subsequent changes in the Constitutional Court’s practice. He
submitted that the Court itself had already criticised the retroactive effect of
the Constitutional Court’s case-law in Janković and Others v. Croatia ((dec.),
nos. 23244/16 and 4 others, 21 September 2021).
24. The Government pointed out that the applicant had lodged his
constitutional complaint more than six months after the Constitutional Court
had changed its practice with respect to admissibility criteria in cases
concerning prison conditions. He must therefore have been aware of the
Constitutional Court’s new practice, which accordingly had not been
unforeseeable for him. The applicant’s right of access to the Constitutional
Court had thus not been disproportionately restricted.

2. The Court’s assessment

(a) General principles
25. The general principles concerning access to a court, and in particular
access to superior courts, have been summarised in Zubac v. Croatia ([GC],
no. 40160/12, §§ 76-89, 5 April 2018).
26. The Court reiterates, in particular, that the right of access to a court is
not absolute but may be subject to limitations; these are permitted by
implication, since the right of access by its very nature calls for regulation by
the State, which enjoys a certain margin of appreciation in this regard.
Nevertheless, the limitations applied must not restrict or reduce the access left
to the individual in such a way or to such an extent that the very essence of
the right is impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim and if there is not a
reasonable relationship of proportionality between the means employed and
the aim sought to be achieved (see, among many other authorities, Petko
Petkov v. Bulgaria, no. 2834/06, § 27, 19 February 2013).

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(b) Development of the Constitutional Court’s case-law in cases concerning

conditions of detention in Croatia
27. As regards the domestic remedies and the competence of the
Constitutional Court to examine cases concerning conditions of detention, in
its leading judgment in Ulemek v. Croatia (no. 21613/16, 31 October 2019)
the Court explained that the Croatian legal system provided for both
preventive and compensatory remedies in respect of inadequate prison
conditions. The preventive remedies involved making a complaint to the
prison administration and/or the sentence-execution judge directly, while the
compensatory remedy related to the possibility of obtaining compensation
from the State in proceedings before the relevant civil courts. In the event of
an unfavourable outcome after using the preventive and/or compensatory
remedy, applicants were able to lodge a constitutional complaint with the
Constitutional Court (ibid., §§ 93-110).
28. The Court further noted that, according to the case-law of the
Constitutional Court at the material time, for the purposes of exhaustion of
remedies before lodging a constitutional complaint following the use of the
compensatory remedy, complainants had not been required to first use the
preventive remedies if they later availed themselves of a civil action for
damages – namely the compensatory remedy - in the relevant civil court
concerning allegations of inadequate conditions of detention (see, for further
details of this case-law, Ulemek, cited above, §§ 39 and 51-54). In Ulemek
the Court consequently found that the applicant had not had to exhaust the
existing preventive remedies (ibid., § 118).
29. Following the Court’s adoption of the judgment in Ulemek, there have
been changes in the Constitutional Court’s case-law. In its decision no. U-III-
2757/2018, adopted on 4 February 2020, the Constitutional Court established
the principle according to which a complainant 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 used the preventive remedy during his or her stay in the prison
conditions complained of (see paragraph 21 above and sub-paragraph 3 in
fine of the Constitutional Court’s decision cited in paragraph 19 above).
30. Having examined the above-mentioned decision in the subsequent
case of Janković and Others, the Court confirmed that this development in
the Constitutional Court’s case-law was substantively in line with the Court’s
findings in Ulemek concerning the complementary nature of the preventive
and compensatory remedies in the context of conditions of detention
(see Janković and Others, cited above, § 58).
31. However, the Court expressed concerns about the retroactive nature
of the Constitutional Court’s new case-law. Specifically, in the absence of a
transition period or any indication as regards the manner in which the
Constitutional Court’s decision no. U-III-2757/2018 was to apply over time,
the Court found that the retroactive application of the Constitutional Court’s

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leading case-law raised an issue of foreseeability, and thus effectiveness, of

the constitutional complaint as a remedy in the context of conditions of
detention for all complainants who used the compensatory remedy but had
not used the preventive remedy before 10 September 2020 (that is, six months
after that decision’s publication), and were no longer in a position to do so
with respect to the particular conditions of their detention (see Janković and
Others, cited above, §§ 62-63). The Court, however, allowed for the further
development of the Constitutional Court’s case-law without considering the
constitutional complaint to be an ineffective remedy at the material time
(ibid., §§ 64-66).
32. Following the Court’s decision in Janković and Others, the
Constitutional Court yet again adjusted its approach on the matter in its
decision no. U-III-3047/2019 of 29 March 2022 (see paragraph 20 above). In
a case comparable to the applicant’s, where the complainant had not used the
preventive remedies but only the compensatory one, in view of the fact that
he could have had recourse to the former only during his imprisonment, at
which time it had not been foreseeable for him that using that remedy would
become the condition for the admissibility of his constitutional complaint in
subsequent civil proceedings, the Constitutional Court held that his failure to
use the preventive remedies could not be held against the complainant in that
case (ibid.).
33. In sum, prior to March 2020 and the Constitutional Court’s decision
no. U-III-2757/2018, domestic law had not required the use of the preventive
remedies for the admissibility of a constitutional complaint during subsequent
civil proceedings for damages (the compensatory remedy). After that date,
the use of the preventive remedies became obligatory for all complainants
wishing to lodge a constitutional complaint in civil proceedings for damages
(compensatory remedy), irrespective of whether or not they still had the
possibility of using the preventive remedies. As of March 2022, and the
Constitutional Court’s decision no. U-III-3047/2019, the condition of using
the preventive remedy is no longer applied in cases where the complainant
could no longer have used that remedy.

(c) Application of the above findings to the present case

34. Turning to the present case, the Court notes that the applicant lodged
his constitutional complaint in October 2020 and it was declared inadmissible
in March 2021 through the application of the Constitutional Court’s then
leading decision no. U-III-2757/2018. This constituted a restriction on his
right of access to the Constitutional Court.
35. It thus falls to the Court to ascertain whether the restriction applied by
the Constitutional Court was clear, accessible and foreseeable within the
meaning of the Court’s case-law, whether it pursued a legitimate aim and
whether it was proportionate to that aim (see Petko Petkov, cited above, § 30).
While case-law development is not, in itself, contrary to the proper

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administration of justice (see Lupeni Greek Catholic Parish and Others

v. Romania [GC], no. 76943/11, § 116, 29 November 2016; Nejdet Şahin and
Perihan Şahin v. Turkey [GC], no. 13279/05, § 58, 20 October 2011; and
Legrand v. France, no. 23228/08, § 37, 26 May 2011), in cases where
changes in domestic case-law had affected pending civil proceedings, the
Court has found no issue under Article 6 only where the way in which the law
had developed had been well known to the parties, or had at least been
reasonably foreseeable, and where no uncertainty had existed as to their legal
situation (see Gil Sanjuan v. Spain, no. 48297/15, § 38, 26 May 2020).
36. Turning to the present case, the Court has already found that the
Constitutional Court’s decision no. U-III-2757/2018 applied the new
admissibility requirement retroactively and without any transitional
measures, which raised an issue of foreseeability under the Convention
(see Janković and Others, cited above, §§ 62-63; see also paragraph 31
above).
37. The Government’s principal argument consisted in asserting that,
since more than six months had passed between the publication of the
Constitutional Court’s decision no. U-III-2757/2018 in March 2020 and the
applicant’s lodging of his constitutional complaint in October 2020, the
applicant could no longer argue that the new admissibility criterion had been
unforeseeable to him. Instead, he should have been aware that the
above-mentioned case-law would be applied in his case.
38. In that connection, the Court notes, as did the Constitutional Court in
its subsequent case-law (see paragraph 20 above), that 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 was the period between 2008 and 2011,
while he was still 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. As things stood at the relevant time, however, the applicant
believed that he had a choice between the preventive and the compensatory
remedies, and he chose the latter, trusting that he would be able to have his
claim examined by the civil courts and ultimately by the Constitutional Court.
However, on account of the unexpected change in the Constitutional Court’s
practice with retroactive effect, the applicant was no longer in a position to
fulfil the newly imposed condition of using the preventive remedy.
39. Moreover, in a situation where the practice of the Constitutional Court
had been evolving (see paragraphs 21 and 22 above), and in line with the
principle of subsidiarity, it cannot be held against the applicant for having
requested that the highest national court in Croatia rule on his case
(see, mutatis mutandis, Vrtar v. Croatia, no. 39380/13, § 76, 7 January 2016).
40. The foregoing considerations are sufficient to enable the Court to
conclude that the unforeseeable retroactive imposition of a procedural

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condition, which the applicant could no longer fulfil, restricted his access to
a court to such an extent that the very essence of that right was impaired.
41. There has accordingly been a violation of Article 6 § 1 of the
Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

42. The applicant complained that his prison conditions had been
inhuman and degrading, contrary to Article 3 of the Convention, which reads
as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”

A. Admissibility

1. The parties’ observations

43. The Government maintained that the six-month time-limit for the
applicant to lodge a complaint concerning the conditions in the various
prisons he had stayed in had started to run from the dates on which he had
ceased to be detained in each of those institutions. Alternatively, they
submitted that the applicant had failed to exhaust preventive domestic
remedies in respect of inadequate prison conditions in Croatia, that is to say,
a complaint with the sentence-execution judge and, ultimately, a
constitutional complaint. Lastly, the Government argued that the applicant
had failed to properly avail himself of the compensatory remedy in respect of
inadequate prison conditions in that his civil claim for damages in respect of
his stay at Varaždin Prison had become time-barred.
44. The applicant disagreed. He submitted that he had lodged his
application with the Court within six months from the exhaustion of the
domestic remedies in the case and that, in line with the domestic law at the
material time, he had not been required to exhaust preventive remedies
concerning prison conditions prior to turning to compensatory ones. Lastly,
the applicant argued that his complaint had not been time-barred, as
evidenced by the fact that the civil courts had dismissed his claim without
finding it time-barred.

2. The Court’s assessment

45. The general principles concerning the exhaustion of domestic
remedies and compliance with the six-month rule in cases concerning
conditions of detention have been summarised in Ulemek (cited above, §§ 81-
92).
46. As regards the Government’s objection that the applicant had not
brought his complaint in respect of the conditions in each prison within six

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months after his release from the respective facility, the Court notes that
according to its case-law, an applicant is in general required to bring to the
Court any possible complaints he or she might have had concerning the
conditions of his or her detention within six months following the final
decision in the process of exhaustion of domestic remedies and, only if such
remedies did not properly operate in the particular circumstances of the case,
six months following his or her removal from the particular adverse
conditions of detention or detention regime (ibid., § 114).
47. Since the applicant in the present case first sought to make use of an
effective domestic remedy, namely civil proceedings for damages against the
State following the end of his imprisonment, and the civil courts decided on
the merits of his claim, the Court is satisfied that by raising his complaint
before it within six months from the last domestic decision in those civil
proceedings, the applicant complied with the six-month time-limit. The
Government’s argument in this respect must therefore be dismissed.
48. Furthermore, in so far as the Government argued that the applicant
should have exhausted the preventive remedies in respect of inadequate
conditions of detention, which he had failed to do, before applying to the
Court, the Court has already concluded in respect of the complaint under
Article 6 of the Convention that this requirement was imposed on the
applicant retroactively and that it was consequently impossible for him to
fulfil (see paragraphs 34-41 above). For the same reasons, the Court dismisses
the Government’s preliminary objection in this respect.
49. Lastly, as regards the Government’s argument that in respect of his
detention in Varaždin Prison, the applicant’s civil action for compensation
had become time-barred because he had brought it outside the statutory
time-limit of three years, the Court notes as follows. The applicant was
detained in Varaždin Prison between 12 April and 24 December 2008, and on
19 January 2012 he took the relevant preliminary step of bringing an action
for compensation for inadequate conditions of detention (see paragraphs 6
and 10 above). Since he brought his civil action outside of the three-year
statutory limitation period, the Government’s objection that he did not
properly exhaust domestic remedies in respect of that period must be upheld.
It follows that this part of the application is inadmissible and must be rejected
pursuant to Article 35 §§ 1 and 4 of the Convention.
50. As regards the remaining periods, the Court notes that this complaint
is neither manifestly ill-founded nor inadmissible on any other grounds listed
in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. The parties’ observations

51. The applicant complained that his conditions of detention in prisons
in Zagreb, Lepoglava and Bjelovar had been inhuman and degrading. In

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particular, he submitted that in all of those prisons he had had insufficient

personal space, the conditions of hygiene had been appalling and the food had
been of poor quality. Specifically, in Zagreb Prison he had stayed in an
overcrowded cell for twenty-two hours per day, from which the sanitary
facilities had been only partially separated by a partition, which had made the
smells unbearable and privacy non-existent. The meals had also been served
in the same room. In Lepoglava State Prison, the applicant had continuously
had less than 4 sq. m of personal space and, in particular, for 328 days he had
had less than 3 sq. m, which had not been compensated for by a greater
freedom of movement. He could only stay outdoors for two hours, his health
had deteriorated and he had not been afforded adequate healthcare or
conditions of hygiene. As regards Bjelovar Prison, the applicant pointed out
that the documents submitted by the Government had excluded the sanitary
facilities which were in the room and that, accordingly, for at least seventeen
days he had only had access to 2.90 sq. m of personal space, whereas for
twenty-two days he had had access to 3.49 sq. m.
52. The Government contested those allegations. As regards Zagreb
Prison, they maintained that the applicant had often stayed outside his cell for
interviews with the professional staff and for medical examinations.
Moreover, he had been allowed outdoor activity for at least two hours per day
and he had been able to use the games, library and television in the leisure
room. In Lepoglava State Prison the applicant had stayed in dry, warm and
clean cells and had been afforded between 1.92 and 4.14 sq. m of personal
space during different periods. His lack of space had, however, been
compensated for by sufficient freedom of movement and activities outside
the room. Lastly, as regards Bjelovar Prison, the applicant had had between
3.28 and 9.22 sq. m of personal space at all times, he had stayed in the
renovated prison wing and had been able to use the day room with a
television, books and games for ninety minutes per day and had had two hours
of outdoor exercise daily.

2. The Court’s assessment

53. The Court refers to the principles established in its case-law regarding
inadequate conditions of detention (see, for instance, Muršić v. Croatia [GC],
no. 7334/13, §§ 96-101, 20 October 2016). It reiterates in particular that a
serious lack of space in a prison cell weighs heavily as a factor to be taken
into account for the purpose of establishing whether the detention conditions
described were “degrading” from the point of view of Article 3 and may
disclose a violation, both alone or taken together with other shortcomings
(ibid., §§ 122-41; see also Ananyev and Others v. Russia, nos. 42525/07 and
60800/08, §§ 149-59, 10 January 2012).
54. The Court notes that in Zagreb Prison the applicant had less than 3 sq.
m of personal space throughout his stay, which lasted for seventy-five days
(see paragraph 7 above; see also the Court’s findings of a violation of

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Article 3 in respect of stays in Zagreb Prison in Ulemek, cited above, §§ 128-

31, and Longin v. Croatia, no. 49268/10, §§ 60-61, 6 November 2012). The
same holds true as regards at least half of his stay in Lepoglava State Prison,
where he was imprisoned for 601 days (see paragraph 8 above).
55. In the leading cases of Muršić (cited above, §§ 69-73 and 91-173) and
Ulemek (cited above, §§ 71-120 and 126-46), the Court found a violation in
respect of issues similar to those in the present case. Having examined all the
material submitted to it, the Court has not found any fact or argument capable
of persuading it to reach a different conclusion on the merits of the application
in the present case.
56. There has accordingly been a violation of Article 3 of the Convention
as regards the applicant’s conditions of detention in Zagreb Prison and
Lepoglava State Prison.
57. However, the Court finds no issue with the conditions of the
applicant’s detention in Bjelovar Prison, where he was subjected to minor
reductions of personal space (2.96 sq. m) only on short, non-consecutive
occasions and this was compensated for by sufficient out-of-cell activities
(see paragraph 9 above, and compare Muršić, cited above, §§ 154-71, where
the Court found that the occasional stay in the same conditions in Bjelovar
Prison for non-consecutive periods of up to eight days could be regarded as
short and minor reductions in personal space, during which sufficient
freedom of movement and out-of-cell activities had been available).
Moreover, out of the 631 days he spent in that prison, only on twenty-two
days did the applicant have between 3 and 4 sq. m of personal space, whereas
for the remaining period he had more than 4 sq. m. The Court has also
previously found that the overall conditions of detention in Bjelovar Prison
in approximately the same period were generally appropriate (see Muršić,
cited above, §§ 164-68).
58. There has accordingly been no violation of Article 3 of the Convention
as regards the applicant’s conditions of detention in Bjelovar Prison.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

59. Lastly, the applicant complained that the domestic courts, when
dismissing his claim for damages as ill-founded, had ordered him to
reimburse to the State the costs of litigation. He relied on Article 6 § 1 and
Article 1 of Protocol No. 1 to the Convention.
60. Having regard to the facts of the case and in the light of all the material
in its possession as well as its above findings under Article 3 and Article 6 § 1
of the Convention, the Court considers that, since it has examined the main
legal questions raised in the present application, there is no need to give a
separate ruling on the remaining complaints (see Centre for Legal Resources
on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156,
ECHR 2014, with further references).

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IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the
injured party.”

A. Damage

62. The applicant claimed 10,000 euros (EUR) in respect of

non-pecuniary damage.
63. The Government contested that amount.
64. The Court awards the applicant EUR 9,900 in respect of
non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

65. The applicant also claimed EUR 15,251.68 for the costs and expenses
incurred before the domestic courts and those incurred before the Court.
Specifically, he claimed EUR 6,532.45 in respect of proceedings before the
domestic courts, EUR 7,465.66 in respect of proceedings before the Court
and EUR 1,253.57 in respect of translation costs.
66. The Government contested those claims.
67. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown that
these were actually and necessarily incurred and are reasonable as to quantum
(see, among many others, L.B. v. Hungary [GC], no. 36345/16, § 149,
9 March 2023). In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 3,000 covering costs under all heads, plus any tax that may
be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the conditions of detention in

Varaždin Prison inadmissible and the remainder of the application
admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 3 of the Convention on

account of inadequate conditions of detention in Zagreb Prison and
Lepoglava State Prison;

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4. Holds that there has been no violation of Article 3 of the Convention on

account of inadequate conditions of detention in Bjelovar Prison;

5. Holds that there is no need to give a separate ruling on the remaining

complaints raised by the applicant;

6. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 9,900 (nine thousand nine hundred euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(iii) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 5 September 2023, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Arnfinn Bårdsen

Registrar President

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