(Application no. 34425/04)
19 May 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stojanović v. Serbia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
Milenko Kreća, ad hoc judge,
and Mrs S. Dollé, Section Registrar,
Having deliberated in private on 7 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's dentures
B. The applicant's correspondence
C. Other relevant facts
II. RELEVANT DOMESTIC LAW
A. Charter on Human and Minority Rights and Civic Freedoms of the State Union of Serbia and Montenegro (Povelja o ljudskim i manjinskim pravima i građanskim slobodama drZavne zajednice Srbija i Crna Gora; published in the Official Gazette of Serbia and Montenegro - OG SCG - no. 6/03)
Article 24 §§ 1 and 3
“Everyone has the right to respect for his private and family life, his home and his correspondence.
The confidentiality of letters and other means of communication shall be inviolable. Exceptions shall be permitted for a limited period of time and only on the basis of a court decision, if necessary for the purposes of conducting criminal proceedings or the defence of the country, in a manner prescribed by law.”
B. Constitution of the Republic of Serbia 1990 (Ustav Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - no. 1/90)
“The confidentiality of letters and other means of communication shall be inviolable.
Laws may provide that, on the basis of a court decision, ... [this principle] ... may be departed from, if it is indispensable for the conduct of criminal proceedings or the defence of the Republic of Serbia.”
“Everyone is entitled to the protection of his health.
Children, pregnant women and the elderly shall have the right to health care financed from public funds, if this right is not secured on some other ground, while other persons shall enjoy such care under the conditions provided by law.”
“Under the obligatory insurance scheme, in accordance with the law, employed persons ...[enjoy] ... the right to health care and other rights in the event of sickness, ... pregnancy, childbirth, impairment or loss of the ability to work, unemployment and old age ... , as well as rights to other forms of social security ...
Social security rights for those citizens who are not covered by the obligatory social insurance scheme shall be regulated by law.”
C. Enforcement of Criminal Sanctions Act 1997 (Zakon o izvršenju krivičnih sankcija; published in OG RS nos. 16/97 and 34/01)
Article 6 § 1
“Individual decisions concerning the rights and obligations of persons subjected to criminal sanctions may not be challenged through the judicial review procedure.”
“The health care unit [of the penitentiary] shall provide preventive assistance, treat convicted persons and persons detained on remand, and supervise the hygiene and quality of the food and water.”
“Details concerning the life and work of convicted persons shall be further regulated in the Prison Rules.
Prison Rules shall be adopted by the Minister of Justice”
“Everyone shall respect the dignity of a convicted person.
No one may endanger the physical and mental health of a convicted person.”
“Convicted persons shall have the right to nutrition capable of sustaining their good health and strength ...”
Article 65 §§ 1 and 3
“Convicted persons shall have the right to send written communications to competent State bodies.
Convicted persons shall receive and send written communications through the prison authorities.”
“Convicted persons shall have an unrestricted right to correspond.”
Article 90 §§ 1 and 2
“Convicted persons shall enjoy free health care.
Convicted persons who cannot receive adequate medical treatment in the penitentiary shall be transferred to the prison hospital, a psychiatric ward or another medical institution.”
“Convicted persons shall have the right to complain to the governor [of the penitentiary] concerning a violation of their rights or other irregularities which they have suffered.
The governor is obliged to examine such complaints carefully and take a decision.
Convicted persons who do not receive a response to their complaints or are not satisfied with the decision adopted shall have the right to submit a written application to the head of the Directorate [for the Enforcement of Institutional Sanctions].
Convicted persons shall have the right to complain to the official authorised to supervise the operation of the penitentiary, without the prison staff or the officials appointed to serve in the institution being present.
The substance of the complaint as well as the application shall be confidential.”
D. Enforcement of Criminal Sanctions Act 2005 (Zakon o izvršenju krivičnih sankcija; published in OG RS no. 85/05)
E. Prison Rules 2001 (Pravilnik o kućnom redu u zavodima zatvorenog i strogo zatvorenog tipa; published in OG RS no. 5/01)
Article 23 §§ 1 and 2
“Convicted persons shall have an unrestricted right to correspond, in accordance with the law.
Their mail shall be received and dispatched through the prison authorities.”
F. Prison Rules 2006 (Pravilnik o kućnom redu u kazneno popravnim zavodima i okruZnim zatvorima; published in OG RS no. 27/06)
G. Code of Criminal Procedure (Zakonik o krivičnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 70/01 and 68/02, as well as OG RS no. 58/04, 85/05 and 115/05)
H. Health Care Insurance Act (Zakon o zdravstvenom osiguranju; published in OG RS nos. 18/92, 26/93, 53/93, 67/93, 48/94, 25/96, 46/98, 54/99, 29/01, 18/02, 80/02, 84/04 and 45/05.)
I. Decision on the Participation of Insured Persons in the Costs of Health Care 2001 (Odluka o učešću osiguranih lica u troškovima zdravstvene zaštite; published in the OG RS no. 31/01)
“This decision sets out the modalities and the level of contributions by insured persons to the costs of health care ..., any exemptions from paying such contributions, as well as the location and manner of payment.”
“A contribution is to be made for ... the production or procurement of prosthetics ... [as follows:] ...
16. [for] dental prosthetics ...
16.2. removable dental prosthetics ... 60% ... [of the price set by the health insurance board]”
Article 4 § 2
“Blood donors are exempt from paying contributions within a period of 12 months following each blood donation, except the contribution referred to in [Article 3] paragraphs 15, 16, 17, 19 and 20 ...”
J. Decision on the Participation of Insured Persons in the Costs of Health Care 2004 (Odluka o učešću osiguranih lica u troškovima zdravstvene zaštite; published in the OG RS no. 83/04, 118/04, 71/05 and 18/06.)
K. Criminal Code 1977 (Krivični zakon Republike Srbije; published in OG RS nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, 21/90, 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03.)
“1. Whoever, without authorisation, opens a letter or a telegram or any other closed communication or item of mail of another person, or in some other way violates their privacy, or without authorisation, keeps, conceals, destroys or delivers to another a person's letter, telegram, closed communication or item of mail shall be punished by imprisonment not exceeding one year.
3. If the offence referred to in paragraph 1 ... of this Article is committed by an official in the performance of his public duties, that person shall be punished by imprisonment from six months to five years.”
L. Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 29/78, 39/85, 45/89, 57/89 and OG FRY no. 31/93)
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AS REGARDS THE APPLICANT'S CORRESPONDENCE
“1. Everyone has the right to respect for his ... correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ...”
1. Compatibility ratione temporis
2. Exhaustion of domestic remedies
(a) Arguments of the parties
- file a criminal complaint based on Article 72 of the Criminal Code 1977 (see paragraph 48 above);
- bring a civil claim in accordance with Articles 199 and 200 of the Obligations Act (see paragraph 49 above) or, indeed, the Convention itself (in support of the said civil claim, the Government provided the Court with several judgments whereby the domestic courts had awarded compensation to plaintiffs, in various contexts and had, in so doing, relied on the Convention);
- make use of the remedies provided for in the Enforcement of Criminal Sanctions Act 1997 (see paragraphs 39 and 40 above, Articles 103 and 347 in particular); or
- lodge a specific complaint with the Court of Serbia and Montenegro in respect of the violations alleged.
(b) Relevant principles
(c) The Court's assessment in the present case
1. Arguments of the parties
2. The Court's assessment
II. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION AS WELL AS OF ARTICLE 1 OF PROTOCOL NO. 12 IN RESPECT OF THE APPLICANT'S DENTURES
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 19 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. TULKENS
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) partly concurring opinion of Judge Mr Kreća,
(b) partly dissenting opinion of Judge MR Zagrebelsky.
PARTLY CONCURRING OPINION OF JUDGE KREĆA
I agree with the finding that the Respondent's law does not provide grounds for considering that a criminal complaint could afford the applicant adequate redress.
I could also go along with the finding – although it is one of a more delicate nature – that civil proceedings as such do not necessarily address the root cause of the matter, as well as that regarding a specific complaint with the Court of Serbia and Montenegro.
My reservations essentially have to do with the treatment of the administrative remedy concerning the implementation of prison regulations. They are basically derived from the intrinsic requirements of the principle of judicial consistency.
Judicial consistency understood as consistency with its own past case-law “is the essence of judicial reasoning” (Case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), judgment of 15 December 2004, ICJ Reports 2004, Joint Declaration of Vice-President Ranjeva and Judges Guillaume, Higgins, Koojimans, Al-Khasawneh, Buergenthal and Elaraby, paragraph 3).
This is particularly true of this Court, having in mind that in its judicial activity the principle of judicial consistency possesses not only the ideal meaning of stability and predictability of the jurisprudence of the Court, but also a practical meaning in that, considering the large number of cases submitted to the Court, it enables proper administration of justice.
In the Novak v. Croatia Case (application no. 8883/04, judgment of 14 June 2007), the applicant alleged that the prison authorities had opened his correspondence with the Court, thus violating his right established under Article 8 of the Convention.
The Government objected that “the applicant had failed to exhaust domestic remedies because he had not addressed this complaint to the domestic authorities, such as the VaraZdin Prison Administration or the judge responsible for the execution of sentences” (paragraph 49 of the judgment).
In its judgment the Court found that:
“... the applicant did not address a complaint concerning the opening of his correspondence with it to any domestic authorities, although under section 15(2) of the Enforcement of Prison Sentences Act he was able to lodge such a complaint with either the VaraZdin Prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration” (paragraph 51 of the judgment; emphasis added).
From this specific finding follows the conclusion that:
“... in respect of this complaint the applicant has not exhausted domestic remedies and that therefore this complaint must be rejected in accordance with Article 35, §§ 1 and 4 of the Convention” (paragraph 52 of the judgment).
4. It goes without saying that the Court has the power to depart from its previous decision, but the Court should exercise this power with good reason. Precedential authority of a previous decision is non-existent where cases, resting on different principles, are distinguishable.
As regards these cases – Horvat v. Croatia and Stojanović v. Serbia – it appears that there exists almost complete identity of the relevant elements of both the factual and the legal framework.
In both cases, the applicants allege that their right to confidentiality guaranteed under Article 8 of the Convention was violated by the acts of the prison authorities. The internal laws of both Governments provide for, inter alia, administrative remedies for the protection of the relevant right in the form of a complaint “to the governor of the penitentiary” (section 103 of the Enforcement of Criminal Sanctions Act) or “the right to submit a written application to the Head of the Directorate for the Enforcement of Institutional Sanctions” according to the law of Serbia, and a complaint to the prison governor or the Head Office of the Prison Administration (section 15(2) of the Enforcement of Prison Sentences Act) according to the law of Croatia. Neither of the applicants Novak and Stojanović addressed a complaint to any of the above-mentioned authorities concerning the opening of their correspondence.
It is true, however, that there are two differences in the circumstances surrounding these two cases.
Firstly, Croatia's law also provides, in the Enforcement of Prison Sentences Act, for a complaint to a judge responsible for the execution of sentences, in addition to a complaint to the prison governor and the Head Office of the Prison Administration; and
Secondly, “the Government have failed to produce relevant case-law which would demonstrate that any of the administrative remedies on which they relied could have provided the applicant with adequate redress for the violation alleged” (paragraph 62 of the judgment), followed by the observation that “the Government [of Serbia] themselves acknowledged that the alleged interference stemmed from an administrative practice” (ibid.).
It appears that neither of the said differences makes these two cases distinguishable, being objectively inadequate to justify departure from the precedent established by the Novak v. Croatia case.
6.1. The fact that under Croatia's law, in addition to the governor of the prison and the Head Office of the Prison Administration the applicant could also have addressed the judge responsible for the execution of sentences is irrelevant here. In its Judgment in the Horvat v. Croatia case, the Court indicated as alternatives the possible addressees with whom the applicant could have lodged a complaint. This means, clearly and unambiguously, that a complaint lodged with any of the addressees indicated in paragraph 51 of the judgment is an effective remedy for the purposes of Article 35 of the Convention. Or, if we apply the precedential authority of the Court's judgment in the Horvat v. Croatia Case to this particular case, that the administrative remedies as provided for by the Enforcement of Criminal Sanctions Act are effective remedies for the purposes of Article 35 of the Convention.
6.2. It is worth mentioning that in the Horvat v. Croatia case the Court did not demand the production of relevant case-law demonstrating that any of the administrative remedies on which the Government relied could have provided the applicant with adequate redress for the violation alleged.
Such an approach seems a proper one in the light of the well-established principle in the jurisprudence of the Court that “the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism” (Azinas v. Cyprus, application no. 56679/00, § 38; Ilhan v. Turkey, application no. 22277/93, §59). Failure to produce relevant case-law, in particular when Contracting Parties are concerned which, like Croatia and Serbia, belong to the continental system of law, could hardly, in itself, constitute a basis for disqualifying a particular remedy as an effective one. From the standpoint of the question whether a particular remedy is an effective one, sometimes recourse to testing on an empirical basis, as indicated by the dictum of the Chamber of the International Court of Justice in the ELSI case, may be the most appropriate answer:
“for an international claim to be admissible, it is sufficient if the essence of the claim has been brought before the competent tribunals and pursued as far as permitted by local law and procedures, and without success”. (ICJ Reports 1989, p. 15 at p. 42, paragraph 50; emphasis added).
Indeed, it seems exaggerated to disqualify a particular remedy as effective exclusively on the basis of formalistically established standards relating to the distribution of the burden of proof while neglecting its substantive capability of affording redress in respect of the breaches alleged.
6.3. An additional argument of the majority that “the Government themselves acknowledged that the alleged interference stemmed from an administrative practice” does not seem to be of decisive importance in this particular context either.
The acknowledgment was expressed, in the first place, in an abstract form, as a defence, rather than as a substantiated and formal acknowledgment.
Moreover, even assuming that opening correspondence was an administrative practice, that circumstance is not in itself reason for disqualifying the complaint to higher administrative structures as an effective one. The practice of lower administrative structures opening correspondence is one thing, whereas the practice, whether established or reasonably possible, of higher structures vested with the power to censor mail based on specific rules is quite another.
Having found that the applicant's complaint concerning the dentures, based, inter alia, on Protocol No. 12, had been resolved within the meaning of Article 37, § 1 (b) of the Convention, the Court was no longer in a position to address the normative potential of Protocol No. 12.
That potential is unfathomable; it encompasses the almost revolutionary perspective of the convergence of civil and political rights, on the one hand, and economic, social and cultural rights, on the other. Ultimately, it could be conducive to the establishment of the right to dignified life (divina vitae) as the embodiment of the eternal goal relating to the purpose and nature of human existence.
It is certain, in this connection, that the Court's future jurisprudence must provide guidelines as to how the normative potential of Protocol No. 12 should be perceived.
PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY
I voted against striking out the complaint concerning the applicant's dentures for the following reasons, which relate solely to the impact of this judgment for the Court's case-law on Article 37 of the Convention. The merits of the applicant's complaint (which was not declared inadmissible by the Chamber as manifestly ill-founded) are in no way the subject-matter of my dissent, any more than of the judgment itself.
In my view the matter giving rise to the applicant's complaint under Article 3 of the Convention cannot be considered resolved.
According to the Court's case-law, “[i]n order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his application, the Court considers that it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed. This approach reflects the structure of the Convention's supervisory machinery, which provides both for a reasoned decision of judgment as to whether the facts in issue are compatible with the requirements of the Convention (Article 45), and, if they are not, for the award of just satisfaction (Article 41)” (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002).
The Court, in a number of its judgments concerning the expulsion of aliens has accepted that to put an end to the risk of their being removed from the country by way of the delivery of (one of the various kinds of) residence permits can constitute an adequate and sufficient form of redress and thus a reason for finding that both of the above-mentioned conditions are met in cases concerning Article 8 (see, among other authorities, Sisojeva and Others v. Latvia [GC], no. 60654/00, § 97, ECHR 2007 ..., and Ibrahim Mohamed v. the Netherlands (striking out), no. 1872/04, §§ 19-24, 10 March 2009). The same case-law has been adopted by the Court under Article 3 of the Convention in cases concerning expulsions or extraditions whose execution was no longer possible (see Bilasi-Ashri v. Austria (dec.), no. 3314/02, ECHR 2002 X; Abraham Lunguli v. Sweden (dec.), no. 33692/02, 1 July 2003; Laleh Mir Isfahani v. the Netherlands (dec.), no. 31252/03, 31 January 2008; Bari v. Sweden (dec.), no. 56726/00, 5 March 2002; Hesam Safawi Bayat v. the Netherlands (dec.), no. 7233/02, 8 July 2003; R.N. v. the United Kingdom (dec.), no. 28242/02, 2 September 2003; Q v. Finland (dec.), no. 42640/04, 22 May 2007; Azzedine Chelghoum v. France (dec.), no. 54654/00, 10 October 2000; and Tony Chidobe v. Italy (dec.), no. 30978/04, 9 September 2004). Apparently, the Court found that the matter had been resolved in a case where leave to remain in the country had finally been granted to the applicant (see Mostafa Kordoghliazar v. Romania (dec.), no. 8776/05, 20 May 2008). In El Majjaoui and Stichting Touba Moskee v. the Netherlands ((striking out) [GC], no. 25525/03, §§ 30-34, 20 December 2007), the Court reached similar findings in a very specific case, brought under Article 9 of the Convention, concerning the denial and then the delivery of a residence and work permit to a foreign imam.
The Court, to my knowledge, has never found the matter to have been resolved in a case under Article 3 of the Convention such as the present one. The applicant suffered from the refusal of the authorities to provide him with the dentures he needed from at least February 2004 (see paragraph 13) to 26 June 2007 (see the note of 27 June 2007 from the applicant's representative, the Belgrade Centre for Human Rights). The Government's action was taken after a long period of three years and four months (nearly three years after the application had been lodged). No redress has been granted in respect of the violation complained of (still less have the Government taken action to fulfil their procedural obligations under Article 3 of the Convention).
I am unable to see how it can be said that the issue of the case has been resolved by the sole fact that a possible violation of Article 3 has finally ended and I am deeply worried by a judgment that sets such a precedent in the Court's Article 3 case-law. Moreover one can easily conceive possible developments and applications of this new precedent, capable of spreading across a broader range of Convention violations such as serious violations of Article 3, or of Article 5 and so forth.
I respectfully suggest that this judgment should not establish a precedent in the Court's case-law.