BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF
JOVANČIĆ v. SERBIA
(Application
no. 38968/04)
JUDGMENT
STRASBOURG
5 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Jovančić v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a
Committee composed of:
András
Sajó,
President,
Dragoljub
Popović,
Kristina
Pardalos,
judges,
and
Françoise Elens-Passos,
Deputy Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38968/04) against the State
Union of Serbia and Montenegro, lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”), by, at that
time, a citizen of the State Union of Serbia and Montenegro, Mr
Nebojša Jovančić (“the applicant”), on
25 October 2004.
- As
of 3 June 2006, following the Montenegrin declaration of
independence, Serbia remained the sole respondent in the proceedings
before the Court.
- The
Serbian Government (“the Government”) were represented by
their Agent, Mr S. Carić.
- On
10 July 2009 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was also decided that the merits of the application
would be examined together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1959 and lives in Medoševac.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
7. Following the applicant's arrest on 19 June 2002, on 21 May
2003 the District Court of Niš convicted the applicant of
forgery and sentenced him to four years and six months in prison.
- The Supreme Court of Serbia upheld both the conviction
and the sentence on 28 January 2004.
- On 19 November 2004 the Supreme Court dismissed the
applicant's further appeal on points of law as unavailable under
domestic law in the particular circumstances of the case (odbacio
kao nedozvoljen zahtev za ispitivanje zakonitosti pravnosnaZne
presude).
- The applicant served his sentence in the Niš
Penitentiary (Kazneno-popravni zavod u Nišu;
hereinafter “the prison”).
- The
applicant's letter of 21 May 2004 to the District Court in Niš
bore the prison stamp of the same date and registration number
24-6274/2004.
- The
applicant's first letter of 22 October 2004, sent to the Court on 27
October 2004, also bore the prison stamp dated 25 October 2004 and
registration number 24-13588/2004.
- In
its own letter of 6 December 2004, inter alia, the Court's
Registry therefore informed the applicant in Serbian of the said
stamp, assuming that he may not have been aware of it.
- In
his application form submitted on 23 December 2004, the applicant
stated that all his mail addressed to State bodies or his family had
to be submitted opened to the prison administration, where it was
read. He alleged that this was standard practice based on the
provisions of the applicable prison regulations. He also submitted
that, in accordance with the said practice, all incoming mail was
delivered to prisoners opened, stamped and registered. This letter
did not bear any prison stamp.
- Finally,
the above decision of the Supreme Court of 19 November 2004, which
was subsequently sent to the applicant, also bore the prison stamp
dated 4 February 2005 and registration number 713-1237/2005.
- On
19 September 2006 the applicant was released early on parole.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is set out in the Court's judgment of
Stojanović v. Serbia (no. 34425/04, §§ 37-43
and 48-49, 19 May 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS
REGARDS THE APPLICANT'S CORRESPONDENCE
- The
applicant complained about the opening of his correspondence with the
Court, as well as with various domestic bodies, by the prison
authorities.
- The
Court considers that this complaint falls to be examined under
Article 8 of the Convention, rather than Article 34, there being no
evidence that the correspondence between the Court and the applicant
was unduly delayed, tampered with, or otherwise “hindered”
(see Manoussos v. the Czech Republic and Germany (dec.), no.
46468/99, 9 July 2002, and Stojanović v. Serbia, no.
34425/04, § 51, 19 May 2009).
- The
Government raised various objections to the admissibility of the
applicant's complaint. However, the Court has rejected the same
objections in Stojanović v. Serbia (cited above,
§§ 62-64) and finds no reason not to do so on this
occasion. The complaint is therefore declared admissible.
- The
Government further contended that there had been no violation
of Article 8 of the Convention.
- The
applicant reaffirmed his complaint.
- The
Court has already considered practically identical circumstances in
Stojanović v. Serbia (cited above, §§ 68-75) in
which it found, inter alia, a violation of Article 8 of the
Convention because the interference complained of was not “in
accordance with the law” at the material time. Having examined
all relevant circumstances, in particular, an absence of a specific
court decision allowing interference with the applicant's
correspondence, as well as the ambiguity of the applicable prison
rules and regulations at the relevant time, the Court does not see
any reason to hold otherwise in the present case. There has
accordingly been a breach of Article 8 of the Convention as regards
the interference with the applicant's correspondence.
II. THE APPLICANT'S
COMPLAINTS CONCERNING HIS ARREST AND THE FAIRNESS OF THE CRIMINAL
PROCEEDINGS
24. The
applicant also complained, under various articles of the Convention,
about his arrest on 19 June 2002 and the fairness of the criminal
proceedings brought subsequently.
- As
regards the applicant's arrest of 19
June 2002, since Serbia ratified the
Convention on 3 March 2004, the Court finds the complaint
incompatible ratione temporis with the provisions of the
Convention and, as such, inadmissible in accordance with Article 35
§§ 3 and 4.
- As
regards the applicant's complaint about the fairness of the
criminal proceedings, the Court reiterates that applicants must
comply with the relevant domestic formal and procedural rules while
attempting to exhaust domestic remedies (see, mutatis mutandis,
Cardot v. France, judgment of 19 March 1991, Series A no. 200,
§ 34). Where an applicant has attempted to make use of an
unavailable and/or ineffective remedy, the time taken to do so will
not interrupt the running of the six-month time limit, which may lead
to the application being rejected as out of time (see, mutatis
mutandis, Rezgui c. France, no. 49859/99, decision of 7
November 2000).
- The
Court notes that the applicant sought to exhaust an appeal on points
of law, which was unavailable under domestic law in the particular
circumstances of the case (see paragraph 9 above). Accordingly, the
final domestic decision to be taken into account for the purposes of
calculating the six-month period within the meaning of Article 35 §
1 of the Convention is the decision of the Supreme Court of Serbia
dated 28 January 2004, which the applicant received on 22 April 2004,
but lodged the application with this Court on 25 October 2004. It
follows that this part of the application has been lodged out of time
and must be rejected in accordance with Article 35 §§ 1 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 5,000,000 euros (EUR) and EUR 250,000,
respectively, for pecuniary and non-pecuniary damage suffered. He
also claimed EUR 500 for the costs incurred before the Court,
particularly, for postage. The Government contested these claims.
- In
the circumstances of the case, the Court considers that the finding
of a violation of Article 8 of the Convention alone constitutes
adequate just satisfaction in respect of the compensation claimed by
the applicant (see, mutatis mutandis, Campbell and Fell v.
the United Kingdom, 28 June 1984, § 141, Series A no. 80;
Calogero Diana v. Italy, 15 November 1996, § 44, Reports
of Judgments and Decisions 1996 V; Savenkovas v. Lithuania,
no. 871/02, 18 November 2008; and Stojanović v. Serbia,
cited above, § 85).
- 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 have been actually and necessarily
incurred and were also reasonable as to their quantum (see, for
example, Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, § 54, ECHR 2000-XI). Regard being had to the
documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant the sum of EUR 100 for
the costs and expenses incurred in the proceedings before this Court.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 8 of the
Convention concerning the interference with the applicant's
correspondence admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of
Article 8 of the Convention;
3. Holds that the finding of a violation of Article 8 in
itself constitutes sufficient just satisfaction for the non-pecuniary
damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 100 (one hundred euros) in respect of costs and expenses, which
sum is to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement, plus any tax
that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos András
Sajó
Deputy
Registrar President
