Buhin v. Croatia

FIRST SECTION

Application no. 20538/24 Jasmina BUHIN against Croatia

The European Court of Human Rights (First Section), sitting on 30 June 2026 as a Chamber composed of:

Ivana Jelić , President , Raffaele Sabato, Frédéric Krenc, Davor Derenčinović, Alain Chablais, Artūrs Kučs, Anna Adamska-Gallant , judges , and Ilse Freiwirth, Section Registrar,

Having regard to the above application lodged on 10 July 2024,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

1 The case concerns a decision of the Constitutional Court applying its new case law on the admissibility criteria for lodging constitutional complaints in civil proceedings and declaring the applicant’s complaint inadmissible, despite having previously informed her that it would hear her complaint (compare Zelenika v. Croatia (dec.), no. 39801/23, §§ 37-56, 13 June 2024).

2 . There are 16 similar applications currently pending before the Court.

3 The applicant, Ms Jasmina Buhin, is a Croatian national who was born in 1980 and lives in Garešnica. She was represented before the Court by Mr B. Doneski, a lawyer practising in Daruvar.

4 The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

5 The facts of the case, as submitted by the parties, may be summarised as follows.

6 On 28 November 2011 the applicant brought a civil action against an insurance company in the Daruvar Municipal Court ( Općinski sud u Daruvaru, Stalna služba u Garešnici ) seeking damages in connection with the deterioration of her health. She submitted that the deterioration had been caused by abdominal surgery which had been negligently performed by a doctor in a public hospital insured by the defendant company. The applicant claimed that after the surgery she had suffered inflammation and had had to have two further operations. She sought compensation of 27,585 euros (EUR) for pecuniary and non-pecuniary damage, together with statutory default interest.

7 After hearing the applicant and the doctors who had treated her and obtaining two expert reports, on 5 March 2015 the Daruvar Municipal Court dismissed the applicant’s claim. The applicant appealed, and on 12 January 2017 the Bjelovar County Court ( Županijski sud u Bjelovaru ) quashed that judgment and instructed the first-instance court to clarify certain facts.

8 In the remitted proceedings, the Daruvar Municipal Court obtained two further expert reports and on 20 April 2022 it dismissed the applicant’s claim as unfounded. It concluded that the abdominal surgery had been properly performed, that the inflammation leading to the second operation the applicant had had to undergo had been a post-operative complication which could occur even in properly performed surgery, and that her third operation had not been causally linked with her abdominal surgery.

9 . On 29 September 2022 the Bjelovar County Court upheld that judgment.

10 . On 1 December 2022 the applicant, represented by a qualified lawyer, simultaneously lodged against the second-instance judgment:

(i) a petition for leave to appeal on points of law with the Supreme Court ( Vrhovni sud Republike Hrvatske ), and

(ii) a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ).

The applicant’s petition for leave to appeal was not made on human rights grounds (these were new grounds for appeals on points of law introduced by the 2022 Amendments to the Civil Procedure Act (“the 2022 Amendments)”, which had entered into force on 19 July 2022, see paragraphs 20-23 below). Instead, she argued that the decision in her case depended on a point of procedural law whose clarification was important for ensuring the uniform application of the law (that is, the grounds for appeals on points of law which had been available also before the 2022 Amendments).

In her constitutional complaint she argued that the proceedings in the lower courts had been conducted in breach of the provisions of the Croatian Constitution which guaranteed equality before the law and before the courts, the right to a fair hearing and the right to medical care. She also alleged that there had been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

11 . By a letter of 7 December 2022, the Constitutional Court informed the applicant that it would await the Supreme Court’s decision on her petition for leave to appeal on points of law before it heard her constitutional complaint. The letter said that if the Supreme Court were to declare the petition inadmissible, the applicant should submit a copy of that decision to the Constitutional Court, which would then hear her constitutional complaint against the second-instance judgment. The letter also stated that, in the event of the Supreme Court allowing her petition for leave, the applicant would have the right to make a new constitutional complaint against the Supreme Court’s judgment.

12 . On 25 April 2023 the Supreme Court declared the applicant’s petition for leave to appeal on points of law inadmissible. It held that the answer to the point of procedural law on which the applicant had sought clarification was set out in a provision of the Civil Procedure Act.

13 On 1 September 2023 the applicant submitted a copy of the Supreme Court’s decision to the Constitutional Court.

14 . On 29 February 2024 the Constitutional Court applied its new case law on the admissibility criteria for constitutional complaints in civil proceedings (established in decisions nos. U-III-207/2023 and U ‑ III ‑ 7150/2022 of 7 March 2023, see paragraph 26 below) and, relying on section 62 of the Constitutional Court Act (see paragraph 18 below), declared the applicant’s constitutional complaint against the second‑instance judgment inadmissible for non-exhaustion of other available remedies. Specifically, it held that before making her constitutional complaint the applicant should have lodged a petition for leave to appeal on points of law on the basis of breaches of fundamental human rights guaranteed by the Constitution or the Convention. The Constitutional Court also stated, referring to Stojaković v. Croatia ([Committee] (dec.) no. 16931/12, §§ 30-32, 12 June 2018), that it could not examine the Supreme Court’s decision because the applicant had not extended her constitutional complaint to that decision.

15 The Constitutional Court’s decision was notified to the applicant’s representative on 11 March 2024.

16 The relevant domestic law and practice are integrally set out in Zelenika v. Croatia (dec.), no. 39801/23, §§ 9-34, 21 May 2024.

17 The following domestic provisions and practice are of particular importance for the present case.

18 . Section 62 of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 13/91), which has been in force since 21 March 1991, as amended by the 2002 Amendments, which entered into force on 15 March 2002, reads as follows:

“(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms ... guaranteed by the Constitution (‘constitutional right[s]’) ...

(2) If another legal remedy is available for the violation of the constitutional right(s) [complained of], the constitutional complaint may be lodged only after that remedy has been used.

(3) In matters in which an action for judicial review [ upravni spor ] or, in civil and non-contentious proceedings, an appeal on points of law [ revizija ] is available, remedies shall be considered exhausted only after a decision on those legal remedies has been given.”

19 The developments in the legal regulation of appeals on points of law under the Civil Procedure Act are outlined in detail at paragraphs 11-23 of Zelenika .

20 . In so far as relevant for the present case, prior to the 2022 Amendments to the Civil Procedure Act ( Zakon o izmjenama i dopunama zakona o parničnom postupku , Official Gazette no. 80/22), which entered into force on 19 July 2022, petitions for leave to appeal on points of law were confined to points of substantive or procedural law that were important for ensuring the uniform application of the law.

21 . Following the 2022 Amendments, while that ground of ensuring the uniform application of the law was retained, an additional and distinct ground was introduced for appeals on points of law, that based on breaches of human rights.

22 . In particular, the relevant provisions of the Civil Procedure Act, as amended by the 2022 Amendments, read as follows:

Section 385a

“(1) The Supreme Court shall grant leave to lodge an appeal on points of law if ... a decision in the case depends on the resolution of a point of law examined by the lower courts which is important for ensuring the uniform application of the law and the equality of all in its application, or for case-law development, in particular:

– if the decision of the second-instance court on that point of law deviates from the Supreme Court’s practice; or

– if there is no practice of the Supreme Court on that point of law, especially if the practice of higher courts is not uniform, or

– if the Supreme Court’s practice on that point of law is not uniform, or

– if the Supreme Court has already ruled on that point and the decision of the second instance court is based on that ruling but ... the case-law should be revisited in view of changes in the legal system occasioned by new legislation, international agreements or decisions of the Constitutional Court, the European Court of Human Rights or the Court [of Justice] of the European Union.

(2) The Supreme Court shall also grant leave to lodge an appeal on points of law if a party argues plausibly that in the first- or second-instance proceedings, owing to particularly serious breaches of the rules of civil procedure or an incorrect application of substantive law, there has been a breach of a fundamental human right guaranteed by the Croatian Constitution or the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the party, if possible, already referred to those breaches in the proceedings before the lower courts.”

23 . Under section 107(5) of the 2022 Amendments, the above-mentioned new rules on appeals on points of law applied to all ongoing civil proceedings in which a second-instance decision was not given before the entry into force of those amendments.

24 The practice of the Constitutional Court regarding the admissibility of constitutional complaints in the light of section 62(2) and (3) of the Constitutional Court Act (see paragraph 18 above) evolved over time, in line with the developments in the legal regulation of appeals on points of law (see paragraphs 24-34 of Zelenika ).

25 . In particular, prior to the 2022 Amendments to the Civil Procedure Act, the Constitutional Court differentiated its approach depending on the procedural situation. Given the uncertainty as to whether the Supreme Court would admit a petition for leave to appeal on points of law (that is, before the 2013 Amendments to the Civil Procedure Act, an extraordinary appeal on points of law, see paragraph 19 of Zelenika ), the Constitutional Court adopted the following flexible approach.

If only a constitutional complaint was lodged, the Constitutional Court would examine the complaint on the merits without requiring a prior extraordinary appeal on points of law/petition for leave to appeal on points of law.

If an extraordinary appeal on points of law/a petition for leave to appeal on points of law was lodged first, and if the Supreme Court declared it inadmissible, a constitutional complaint could be directed only against the Supreme Court’s decision; complaints against the lower courts’ decisions were out of time.

In case of simultaneous lodging of an extraordinary appeal on points of law/a petition for leave to appeal on points of law and a constitutional complaint, the Constitutional Court would send a so‑called appeal-on-points-of-law letter ( revizijsko pismo ) and stay its examination pending the Supreme Court’s decision. After the Supreme Court’s decision, it would proceed to examine the constitutional complaint against the second-instance decision (and allow it to be extended to include the Supreme Court’s decision).

26 . Following the 2022 Amendments, which introduced the new ground for leave based on alleged breaches of fundamental human rights (section 385a(2) of the Civil Procedure Act), the Constitutional Court revised its approach.

In its decisions U‑III‑207/2023 and U‑III‑7150/2022 of 7 March 2023 (cited at paragraphs 31-33 of Zelenika ), the Constitutional Court held that a petition for leave to appeal on points of law must be used as a prior remedy whenever the applicant alleges a breach of constitutional or Convention rights. This requirement derived from the principle of subsidiarity and section 62 of the Constitutional Court Act (see paragraph 18 above), and the Supreme Court must be given the opportunity to address such complaints first.

As to simultaneous lodging of a petition for leave to appeal on points of law and a constitutional complaint, departing from its earlier practice, the Constitutional Court held that a constitutional complaint lodged simultaneously with a petition for leave was premature and therefore inadmissible if the Supreme Court has not yet ruled on it (decision U‑III‑207/2023).

If a person failed to lodge a petition for leave to appeal on points of law, the Constitutional Court held that a constitutional complaint lodged without first petitioning the Supreme Court for leave is inadmissible for non‑exhaustion of remedies (decision U‑III‑7150/2022). The Constitutional Court emphasised that the 2022 Amendments intentionally entrusted the Supreme Court with reviewing alleged human‑rights violations and that allowing direct access to the Constitutional Court would circumvent the legislator’s intent and undermine the Supreme Court’s new role.

27 . As explained in its Instructions for completing the constitutional complaint form of 30 March 2023 ( Upute za ispunjavanje obrasca ustavne tužbe ), published on its website and cited at paragraph 34 of Zelenika , the Constitutional Court not only reviews judgments of the Supreme Court dismissing appeals on points of law but also reviews Supreme Court decisions declaring petitions for leave to appeal on points of law inadmissible. In other words, the Constitutional Court examines the Supreme Court’s decisions (in particular whether the Supreme Court addressed the parties’ arguments regarding breaches of human rights protected by the Constitution or the Convention, and how it assessed such arguments) and also examines the decisions of the lower courts that preceded the Supreme Court’s decision if the complainants challenged them.

28 . The Government also referred to the Constitutional Court’s decisions nos. U-III-2019/2021 of 4 June 2024; U-III-1328/2024 of 5 June 2024; U-III-813/2024 of 26 June 2024; U-III-4248/2023 of 12 September 2024; U-III-2677/2024 of 10 October 2024; U-III-4862/2023 of 7 November 2024; U-III-3765/2024 of 3 December 2024, and U-III-3859/2023 of 6 March 2025, in which the Constitutional Court heard complaints against the Supreme Court’s decisions dismissing as unfounded or declaring inadmissible the complainants’ petitions for leave to appeal on points of law against second ‑ instance court’s judgments.

29 The parties also relied on the following domestic provisions and practice.

30 . The applicant relied on section 66(1) of the Constitutional Court Act ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette nos. 13/1991 and 29/2002):

“The Constitutional Court shall allow reinstatement of the proceedings to a person who for any justified reason has omitted to lodge a constitutional complaint within the prescribed time-limit, if during a term of fifteen days after the reason for the omission has ceased to exist, that person submits a proposal for reinstatement of the proceedings and at the same time submits a constitutional complaint.”

31 . The Government submitted that in a joint session of 12 February 2013, the judges of the Constitutional Court had adopted a conclusion in connection with a case which concerned a situation similar to that in Čamovski v. Croatia no. 38280/10, §§ 43-45, 23 October 2012 (where the Court found a violation of Article 6 § 1 of the Convention on account of an obvious error and a miscalculation of the time-limit by the Constitutional Court when it declared inadmissible the applicant’s constitutional complaint). The conclusion reads:

“Where the Constitutional Court dismisses a constitutional complaint on procedural grounds or discontinues proceedings on a constitutional complaint, and a complainant, in a submission (‘appeal’), indicates that the Constitutional Court’s decision was based on an error of fact (for example, an error regarding the date on which the constitutional complaint was posted or given to a prison administrator, or an error regarding whether or not the complainant had complied with an instruction of the Constitutional Court when, in fact, their submission was mistakenly not placed on the file before the decision was drafted), and the Constitutional Court establishes that the decision to dismiss or discontinue proceedings was made on the basis of an error of fact, the case, together with an official note from the legal adviser who prepared the decision, should be referred to ordinary constitutional proceedings under the same case number. The complainant’s submission indicating that the Constitutional Court’s decision is based on an error of fact is to be treated as an application for the reinstatement of the proceedings to the previous state.”

32 In their updated action report of 16 December 2014 (DH‑DD(2015)28), submitted to the Committee of Ministers in the process of supervision of the execution of the Court’s judgment in the Čamovski case, the Government referred to the conclusion drawn by the Constitutional Court on 12 February 2013 and submitted that the Constitutional Court had therefore established the means to rectify an erroneous declaration that a constitutional complaint was inadmissible on procedural grounds.

33 . The Government further referred to the Constitutional Court’s decisions nos. U-III-3704/2012 of 14 February 2013; U-III-1973/2019 of 1 June 2023; U-III-4783/2023 of 5 December 2024; U-III-4325/2024 of 6 February 2025, and U-III-2047/2024 of 12 March 2025, in which the Constitutional Court set aside its earlier decisions in which it had erroneously declared constitutional complaints inadmissible on procedural grounds (as having been lodged outside the statutory time-limit; or treated as having been withdrawn). Specifically, after their complaints had been declared inadmissible, the complainants informed the Constitutional Court that the decisions had been made on the basis of errors of fact. The Constitutional Court had treated the complainant’s submissions as an application for reinstatement of the proceedings and proceeded to a substantive hearing of their constitutional complaints.

34 The applicant complained under Article 6 § 1 of the Convention that the Constitutional Court’s decision declaring her constitutional complaint inadmissible had violated her right of access to a court.

35 The applicant complained that the Constitutional Court’s decision to declare her constitutional complaint against the second-instance judgment inadmissible on the basis of its new admissibility criteria, despite having previously informed her that it would hear her complaint, had been in breach of her right of access to a court.

36 She relied on 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 ...”

37 . The Government argued that the applicant had failed to exhaust the available and effective domestic remedies.

38 . Firstly, if she had considered that the Constitutional Court had erroneously declared her constitutional complaint inadmissible on procedural grounds, she should have lodged an application with the Constitutional Court to restore the proceedings to the status quo ante ( prijedlog za povrat u prijašnje stanje ), a possibility introduced by the Constitutional Court in February 2013 (see paragraph 31 above). Since then, the Constitutional Court had applied this practice in many of its cases (see paragraph 33 above). Given that the applicant had been represented by a lawyer, she should have been aware that this remedy was available. By failing to use it, she had deprived the Constitutional Court of the opportunity to reconsider its inadmissibility ruling and to hear her constitutional complaint.

39 . Secondly, the applicant had failed to lodge a petition with the Supreme Court for leave to appeal on points of law on the grounds of breaches of human rights. Amendments to the Civil Procedure Act which had been in force since 19 July 2022 had introduced this new ground for petition (see paragraph 22 above). The amendments had been publicly available and had entered into force nearly five months before the applicant lodged her constitutional complaint (see paragraphs 21-22 above). She could therefore have raised her human rights arguments in a petition for leave to appeal on points of law. Had she done so, the Constitutional Court would have heard her constitutional complaint.

40 . Thirdly, the applicant had failed to lodge a constitutional complaint against the Supreme Court’s decision declaring inadmissible her petition for leave to appeal on points of law. The Constitutional Court’s well‑established case-law referred to in paragraph 28 above shows that it hears complaints of this kind, and that this is an effective and accessible remedy. Nevertheless, the applicant had not pursued it.

41 The Government further argued that the restriction of the applicant’s right of access to the Constitutional Court was lawful and proportionate to the legitimate aim pursued.

42 Section 62(2) of the Constitutional Court Act required complainants to exhaust other available remedies before lodging a constitutional complaint, and section 62(3) specified that in civil proceedings that meant pursuing an appeal on points of law when that was available.

43 . Following the 2022 amendments to the Civil Procedure Act which introduced the appeals on points of law on human rights grounds, the applicant should have expected the Constitutional Court to adjust its approach and to decline to admit constitutional complaints if the complainant had not sought leave to appeal on points of law on human rights grounds. As established in Zelenika , (§§ 53 and 55), the development of the Constitutional Court case-law requiring complainants to first use that remedy had been reasonably foreseeable.

44 . Therefore, regardless of the content of the so-called appeal-on-points-of-law letter ( revizijsko pismo ), from which it had in any event undoubtedly followed that a constitutional complaint could only be filed after another legal remedy for breach of the constitutional rights had been exhausted, from the content of the legal provisions it had to be clear to the applicant, who had been represented by a lawyer, that before filing a constitutional complaint, she was obliged to bring her complaints about breaches of fundamental constitutional and Convention rights before the Supreme Court.

45 . In sum, unlike in Arrozpide Sarasola and Others v. Spain , nos. 65101/16 and 2 others, 23 October 2018, in which the domestic courts’ case-law was inconsistent, the Constitutional Court’s decision in the applicant’s case was a result of legislative amendments which had entered into force five months before she had lodged her constitutional complaint. The decision of the Constitutional Court was therefore reasonably foreseeable.

46 In reply to the Government objection that she had not exhausted the domestic remedies, the applicant contended that the Constitutional Court Act permitted the reinstatement of proceedings only if a complainant missed the time-limit for lodging a constitutional complaint, not when the Constitutional Court had already ruled on the admissibility of a constitutional complaint (see paragraph 30 above). Given this explicit statutory limit, she maintained that the Government’s reliance on the practice established by the Constitutional Court in February 2013 merely reinforced her argument that the Constitutional Court applied procedural rules in an arbitrary manner, creating remedies which were not grounded in the legislation.

47 . The applicant further submitted that, although under the Civil Procedure Act a petition for leave to appeal on points of law could be made on human rights grounds, this remedy was confined to situations involving particularly serious procedural breaches or misapplications of substantive law. If the Constitutional Court were only to hear complaints about human rights violations within that limited framework, it would fail to fulfil its constitutional purpose as the ultimate guardian of constitutional and Convention rights.

48 . The applicant maintained that the Constitutional Court’s decision had not been foreseeable to her. She stressed that by making frequent changes to the admissibility criteria for constitutional complaints in its decisions in individual cases, the Constitutional Court created legal uncertainty regarding the protection of human rights and fundamental freedoms guaranteed by the Constitution and the Convention.

49 The applicant further submitted that the Constitutional Court was not part of the judicial system and was therefore not bound by statutory provisions concerning the possibility for a party in judicial proceedings to rely on violations of human rights and fundamental freedoms. Rather, the purpose of the Constitutional Court was to provide citizens with protection against violations of rights guaranteed by the Constitution and the Convention committed in judicial proceedings.

50 . The applicant also argued that, in such circumstances, her failure to raise constitutional and Convention breaches in a petition for leave to appeal on points of law could not reasonably be interpreted as a failure to exhaust remedies. Given that the grounds for invoking human‑rights violations in a petition for leave to appeal on points of law were narrow, the Constitutional Court should have examined her constitutional complaint in order to fulfil its purpose set by the Constitution and Constitutional Court Act.

51 As to the Government’s non-exhaustion objections outlined in paragraphs 37-40 above, the Court firstly notes that the fact that the applicant had not based her petition for leave to appeal on points of law on alleged human rights breaches, for which reason the Constitutional Court declared her constitutional complaint inadmissible for non-exhaustion of other available remedies (see paragraph 39 above), goes to the heart of the applicant’s complaint that the Constitutional Court’s application of that new admissibility requirement had not been foreseeable (see paragraph 48 above and paragraphs 55-74 below).

52 The Court next notes that the applicant’s complaint concerns her alleged lack of access to the Constitutional Court in respect of the second-instance judgment rendered in the civil proceedings instituted by her (see paragraph 21 above and contrast, for factual circumstances, Stojaković v. Croatia ([Committee] (dec.) no. 16931/12, §§ 30-33, 12 June 2018). The fact that the applicant had not lodged a constitutional complaint against the Supreme Court’s decision therefore has no bearing on her complaint before the Court.

53 The Court further notes that an application to the Constitutional Court to restore the proceedings to the status quo ante , as set up by the Constitutional Court’s interpretation referred to in paragraph 31 above, appears to be designed for situations in which the Constitutional Court based its inadmissibility decision on an error of fact, for instance in respect of the date when the constitutional complaint was lodged (see paragraph 33 above). The decision that the applicant’s case was inadmissible was not based on an error of fact but on the new requirement for lodging constitutional complaints in civil proceedings (see paragraph 14 above).

54 Nevertheless, the Court can leave open the issue of whether the applicant should have exhausted this remedy within the meaning of Article 35 of the Convention, because the application is in any event inadmissible for the following reasons (see, for a similar approach, Baranska v. Poland (dec.), no. 46863/09, § 37, 16 December 2014; Olsoy v. Turkey (dec.), no. 75468/10, § 38, 26 May 2015; and M.A. and Others v. Latvia (dec.), no. 25564/18, § 44, 29 March 2022).

55 . The Court refers to the general principles concerning the right of access to a court and, in particular, access to superior courts, which are summarised in Zubac v. Croatia [GC], no. 40160/12, §§ 76-86, 5 April 2018. Specifically, the right of access to a court is not absolute but may be subject to limitations, which must not restrict 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 (ibid., § 78).

56 In the present case, the applicant lodged her constitutional complaint in December 2022, and it was declared inadmissible in February 2024. The decision was based on the Constitutional Court’s new case-law on the admissibility criteria for lodging constitutional complaints in civil proceedings, established in decisions nos. U-III-207/2023 and U ‑ III ‑ 7150/2022 of 7 March 2023, which were published in the Official Gazette on 15 and 22 March 2023. Specifically, the Constitutional Court held that before making her constitutional complaint the applicant should have lodged a petition for leave to appeal on points of law on the basis of breaches of fundamental human rights guaranteed by the Constitution or the Convention (see paragraphs 10 and 14 above).

57 The inadmissibility decision in the present case constituted a restriction on the applicant’s right of access to the Constitutional Court. The Court must therefore 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 v. Bulgaria , no. 2834/06, § 30, 19 February 2013 and Hanževački v. Croatia , no. 49439/21, § 35, 5 September 2023).

58 In Zelenika v. Croatia ((dec.), no. 39801/23, §§ 43-45, 13 June 2024), the Court has already held that section 62 of the Constitutional Court Act (see paragraph 18 above), which restricts access to the Constitutional Court through admissibility rules requiring exhaustion of other remedies, was not per se incompatible with the Convention. Its aim was to ensure the proper administration of justice by preventing the Constitutional Court from becoming overburdened with a large number of cases raising human rights issues which could have been resolved by the Supreme Court. The only issue for the Court in Zelenika was whether the way in which the Constitutional Court had applied that rule had been proportionate to that aim and, more specifically, whether it had been foreseeable.

59 The Court further held in Zelenika that the change in the Constitutional Court’s practice regarding admissibility criteria for lodging constitutional complaints in civil proceedings, prompted by the 2022 Amendments of the Civil Procedure Act which introduced alleged human rights breaches as new grounds for appeals on points of law (see paragraph 22 above), was reasonably foreseeable. It also held that, by declaring the applicant’s constitutional complaint lodged on 10 March 2023 against the second instance judgment inadmissible for non-exhaustion of other available remedies, that court did not disproportionately restrict the applicant’s right of access to court (ibid., §§ 49-56).

60 As in Zelenika , the applicant in the present case likewise failed to lodge a petition for leave to appeal on points of law on human rights grounds. The Constitutional Court thus declared the constitutional complaints in both cases inadmissible for failure to exhaust other available remedies. Furthermore, in both Zelenika and the present case, the applicants had failed to exhaust that remedy before the shift in the Constitutional Court’s case-law in March 2023, but after the entry into force of the amendments which had prompted that change in July 2022 (see paragraphs 20-23 and 26-27 above).

61 The present case differs from Zelenika on one point only. Namely, in the present case the applicant had simultaneously lodged a petition for leave to appeal on points of law (not based on alleged human rights breaches but on uniform application of the law) and a constitutional complaint against the second-instance judgment (see paragraph 10 above and see Zelenika , cited above, § 6).

62 . Under its earlier practice, the Constitutional Court would in such situations inform complainants by letter (the so-called appeal-on-points-of-law letter, revizijsko pismo ) that it would wait for the Supreme Court’s decision on the petition for leave to appeal on points of law before hearing the constitutional complaint. If the Supreme Court later declared the petition inadmissible, the Constitutional Court would then examine the merits of the constitutional complaint against the second-instance judgment (see paragraph 25 above).

63 Such a letter was sent to the applicant in the present case on 7 December 2022 (see paragraph 11 above). As it transpires from 16 other similar applications pending before the Court (see paragraph 2 above), as late as 11 January 2023 the Constitutional Court was still sending the so-called appeal-on-points-of-law letters to complainants who had simultaneously lodged a petition for leave to appeal on points of law and a constitutional complaint against a second-instance judgment.

64 The Court finds it regrettable that the Constitutional Court continued to send such letters to those complainants even after the entry into force of the 2022 Amendments of the Civil Procedure Act, which introduced alleged human rights breaches as new grounds for appeals on points of law.

65 However, the Court cannot ignore the fact that the letters in question were sent to the complainants after they had already lodged the available domestic remedies in a manner advised by their legal representatives (under section 91.a of the Civil Procedure Act, a petition for leave to appeal on points of law can only be lodged by a person who has passed the Bar exam).

66 The Constitutional Court did not therefore wrongly instruct the applicant regarding lodging remedies against the second-instance judgment. The present case should thus be distinguished from Majski v. Croatia (no. 2) , no. 16924/08, §§ 67-72, 19 July 2011, where the State Attorneys Council wrongly informed the applicant on the legal remedies available against its decision.

67 The present case should also be distinguished from Vusić v. Croatia , no. 48101/07, §§ 39-46, 1 July 2010, where the Supreme Court adopted two contradictory decisions on the admissibility of an appeal on points of law in the same proceedings. The Court observed in that case that, under domestic law, the Supreme Court was bound by its initial decision, as it did not concern the conduct of the proceedings. It held that, by subsequently departing from that decision on the same issue in the same case, the Supreme Court had breached the principle of legal certainty inherent in Article 6 § 1 of the Convention.

68 In the present case, an indication given in a form of a letter, which was sent upon receiving the applicant’s constitutional complaint and which stated that the complaint would be examined if the Supreme Court declared the applicant’s petition for leave to appeal on points of law inadmissible, did not bind the Constitutional Court in the same way as the Supreme Court’s initial decision on admissibility in Vusić .

69 In the present case the fact remains that the applicant, represented by a qualified lawyer, failed to lodge a petition for leave to appeal on points of law on human rights breaches against the second-instance judgment of 29 September 2022, even though the new rule on appeals on points of law which had entered into force on 19 July 2022 applied to all ongoing civil proceedings in which a second-instance decision had not been adopted before the entry into force of those amendments (see paragraphs 20-23 above).

70 In such circumstances, holding that the error of the applicant represented by a qualified lawyer to use the remedy in question could be excused by a subsequent letter regrettably sent by the Constitutional Court, would run counter to the requirement of the proper exhaustion of domestic remedies (compare, mutatis mutandis , Zubac , cited above, §§ 90-95, 119 ‑ 121).

71 As to the applicant’s argument that the possibility of raising human rights issues in an appeal on points of law before the Supreme Court is more limited than before the Constitutional Court, implying that she could therefore not foresee that her constitutional complaint would be inadmissible for failure to exhaust other remedies (see paragraphs 47 and 50 above), the Court notes that section 62(2) of the Constitutional Court Act requires complainants to exhaust other available remedies before lodging a constitutional complaint, and that section 62(3) specifies that in civil proceedings that means pursuing an appeal on points of law when that is available (see paragraph 18 above). It also notes that the 2022 Amendments specifically entrusted the Supreme Court with reviewing alleged human‑rights violations and that the Constitutional Court examines the Supreme Court’s decisions (in particular whether the Supreme Court addressed the parties’ arguments regarding breaches of human rights protected by the Constitution or the Convention, and how it assessed such arguments), as well as the decisions of the lower courts that preceded the Supreme Court’s decision if the complainants challenged them (see paragraphs 27 and 28 above).

72 The Court therefore finds that the Constitutional Court’s decision that the applicant’s constitutional complaint was inadmissible because of its new requirement for lodging a constitutional complaint did not raise an issue of foreseeability under the Convention and did not therefore affect the proportionality of the resulting restriction of the applicant’s right of access to the Constitutional Court.

73 The Court further notes that applicant’s case was examined on the merits at two levels of court with full jurisdiction (see Croatian Radio-Television v. Croatia , nos. 52132/19 and 19 others, § 165, 2 March 2023, and contrast with Gil Sanjuan v. Spain , no. 48297/15, § 45, 26 May 2020 ), and finds no other elements to suggest that in declaring the applicant’s constitutional complaint inadmissible the Constitutional Court disproportionately restricted her right of access to court (see Zelenika , cited above, § 55).

74 . It follows that the application is inadmissible under Article 35 § 3 (a) of the Convention for being manifestly ill-founded and that it must therefore be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 September 2026.

Ilse Freiwirth Ivana Jelić Registrar President