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SECOND
SECTION
CASE OF MILOŠEVIĆ v. SERBIA
(Application
no. 32484/03)
JUDGMENT
STRASBOURG
18 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Milošević
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 Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32484/03) against the Republic
of Serbia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Serbian national, Mr Radoslav Milošević
(“the applicant”), on 28 July 2003.
- The
applicant was represented by Ms V. Ðurović-Bojović, a
lawyer practising in Belgrade. The Serbian Government (“the
Government”) were represented by their Agent, Mr
S. Carić.
- On
10 July 2009, the President of the
Second Section decided to give notice of the
application to the Government. In accordance with Protocol no. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Niš.
- Following
the applicant's arrest in 1999 and detention in 2000, there were two
sets of criminal proceedings brought against him. By 17 February 2004
the applicant was convicted for the crimes charged with.
- On
24 November 2005, in view of all applicant's convictions and
sentences, the competent domestic court imposed a single sentence
(jedinstvena kazna zatvora) against the applicant. The
applicant did not appeal against this judgment.
- It
would appear that the applicant served incarceration
alternating
between PoZarevac-Zabela
Correctional Institution and Niš Penitentiary.
- The
applicant's letters to the District Courts in Kraljevo and Šabac,
the Supreme Court, the Public Prosecutor's Office and the Serbian
Ministry of Justice, of 4 March 2004, 15 March 2004, 31 March 2004,
13 April 2004, 7 October 2004, 3 December 2004, 10 September 2005, 26
September 2005 and 25 October 2005, all bore prison stamps dated 4
March 2004 (24-2879/2004), 15 March 2004 (24-3211/2004), 1 April 2004
(24-4105/2004), 13 April 2004 (24-4557/2004), 7 October 2004
(1-713-3064/2004), 3 December 2004 (713-12568/2004), 10 September
2005 (1-713-1965/2005), 26 September 2005 (1-071-2172/2005) and 25
October 2005 (1-071-2419/2005), respectively.
- The
Supreme Court's letter of 25 March 2004, addressed to the applicant,
bore the prison stamp of 31 March 2004 and registration number
1-713-4038/2004. Furthermore, the decisions of the District Court in
Šabac of 25 November 2004, the Supreme Court of 8 February
2005, as well as the District Court in Kraljevo of 23 August 2005 and
24 November 2005, also bore the prison stamps dated 1 December 2004
(713-12391/2004), 18 April 2005 (713-4624/2005), 7 September 2005
(713-9801/2005) and 5 December 2005 (713-13783/2005),
respectively.
- The
applicant's letter of 26 April 2004, sent to the Court, bore the
prison stamp dated 26 April 2004, as well as registration number
24-5086/2004.
- In
its own letter of 22 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 subsequent letter of 18 January 2005, the applicant acknowledged
that his letter addressed to the Court had born the prison stamp and
stated that he would like to additionally complain about the State's
ongoing interference with his correspondence. This letter did not
bear any prison stamp or registration number.
- In
his letter of 24 November 2005, the applicant informed the Court
that, as of 1 November 2005, prisoners were allegedly allowed to send
their letters without leaving them opened to be stamped by the prison
authorities.
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 Government in addition invited the Court to “strike
out” the application in question, as the applicant failed to
comment on the Government's observations of 10 November 2009 as he
had been instructed in the Court's letter of 21 July 2010. However,
the Court notes that applicant's representative in her letter of 9
August 2010 pointed out the reasons for not being able to so and
furthermore explicitly demonstrated the applicant's intention to
pursue his application before the Court. 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 OTHER COMPLAINTS
21. Relying
on Articles 3, 5, 6 and 13 of the Convention, the applicant further
complained about being ill-treated in 2000, unlawfully detained until
October 2001, as well as about the conditions of detention at that
time. He further complained about the fairness and outcome of the two
sets of the criminal proceedings mentioned in the paragraph 5 above.
- The Court has examined the
remainder of the complaints as submitted by the applicant. However,
having regard to all the material in its possession, and in so far as
the matters complained of are within its competence ratione
temporis, the Court finds that the
applicant has failed to substantiate his complaints. It follows that
this part of the application must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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;
Done in English, and notified in writing on 18 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos András
Sajó
Deputy Registrar President
