CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 18 janvier 2011

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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 1.     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. 2.     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. 3.     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 4.     The applicant was born in 1956 and lives in Niš. 5.     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. 6.     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. 7.     It would appear that the applicant served incarceration alternating between Požarevac-Zabela Correctional Institution and Niš Penitentiary. 8.     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. 9.     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. 10.     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. 11.     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. 12.     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. 13.     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 14.     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 15.     The applicant complained about the opening of his correspondence with the Court, as well as with various domestic bodies, by the prison authorities. 16.     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). 17.     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. 18.     The Government further contended that there had been no violation of Article 8 of the Convention. 19.     The applicant reaffirmed his complaint. 20.     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. 22.     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 23.     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 1.     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;   2.     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