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Cite as: [2010] ECHR 1407

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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