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SECOND
SECTION
CASE OF JUHAS ĐURIĆ v. SERBIA
(Application
no. 48155/06)
JUDGMENT
STRASBOURG
7 June
2011
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 Juhas Đurić v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
Giorgio
Malinverni,
Işıl
Karakaş,
Guido
Raimondi,
Paulo
Pinto de Albuquerque,
judges,
and
Stanley Naismith, Section
Registrar.
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48155/06) against 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 Viktor Juhas Đurić
(“the applicant”), on 20 November 2006.
- The
Serbian Government (“the Government”) were represented by
their Agent, Mr S. Carić.
- The
applicant alleged that he had been denied access to a court in the
determination of his civil rights and obligations. He further
complained about the length of the civil proceedings at issue, as
well as the respondent State’s interference with his right to
pursue his application before the Court.
- On
21 April 2010 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (former Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966. He is a practising lawyer and lives in
Subotica, Serbia.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The applicant’s request regarding D.G.
- On
19 May 2004 the Police Department in Subotica appointed the applicant
to represent D.G., a suspect in a preliminary criminal investigation,
during his questioning by the police. The applicant provided no legal
assistance to the suspect beyond this hearing.
- On
the same day the applicant filed a request with the police, seeking
payment of his fees in accordance with the Tariff issued by the Bar
Association.
- Having
received no response, on 13 September 2004 the applicant lodged a
civil claim with the Municipal Court in Subotica, requesting that his
fees be covered (7,800 Serbian Dinars, “RSD”,
approximately 105 Euros, “EUR”, at the time, according to
the exchange rate of the National Bank of Serbia).
- On
21 April 2005, the Municipal Court rendered a judgment in default
(presuda zbog izostanka) in favour of the applicant. It
thereby ordered the Police Department to pay him a total of RSD
18,800 (approximately EUR 230 at the time), on account of his fees
and litigation costs, plus statutory interest.
- On
15 August 2005 the District Court in Subotica quashed this judgment
on appeal.
- On
23 January 2006 the Municipal Court declared itself as lacking
jurisdiction ratione materiae to consider the applicant’s
claim on its merit (oglasio se stvarno nenadleZnim za postupanje)
and ordered the applicant to pay RSD 10,500 for litigation costs
(approximately EUR 120 at the time).
- On
29 September 2006 the District Court confirmed this decision on
appeal and it thus became final.
- Both
the Municipal Court and the District Court reasoned, inter alia,
that the fees in question were related to a preliminary criminal
investigation, which was a specific kind of administrative
proceedings, not a formal criminal procedure, and concluded that his
claim was therefore not for the civil courts to determine. The police
themselves, however, had had an obligation to decide upon the
applicant’s request.
- On
13 November 2006 the applicant paid the litigation costs imposed
against him.
- On
23 January 2008, on the grounds that he had misdirected his payment
of 13 November 2006, the applicant was ordered once again to pay the
litigation costs at issue plus statutory interest. By March 2009 the
applicant therefore paid another RSD 18,068 (approximately EUR 190 at
the time).
B. The applicant’s request regarding G.I., D.Č.,
V.Đ., B.Đ. and D.Đ.
- On
31 July 2006 the Police Department in Subotica appointed the
applicant to represent G.I., D.Č.,
V.Đ., B.Đ. and D.Đ., all suspects in a preliminary
criminal investigation, during their questioning by the police.
- On
the same day the applicant filed a request with the police, seeking
payment of his fees in accordance with the Tariff issued by the Bar
Association (in total RSD 12,960, approximately EUR 155 at the time).
C. The applicant’s request regarding S.S., B.B.,
A.S., and D.J.
- On
6 August 2008, 24 April 2009, 19 May 2009 and 1 June 2009 the Police
Department in Subotica appointed the applicant to represent S.S.,
B.B., A.S., and D.J., all suspects in a preliminary criminal
investigation, during their questioning by the police.
- On
11 August 2008, 11 May 2009, 21 May 2009 respectively the applicant
filed a request with the police, seeking payment of his fees in
accordance with the Tariff issued by the Bar Association (in total
RSD 48,000, approximately EUR 500 at the time).
II. RELEVANT DOMESTIC LAW AND JURISPRUDENCE
A. The Criminal Procedure Code (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
the Official Gazette of the Republic of Serbia – OG RS –
nos. 58/04, 85/05 and 115/05)
- Article
193 § 1 provides, inter alia, that “criminal
procedure costs” (troškovi krivičnog postupka)
shall include all expenses incurred in connection with criminal
proceedings, “from their commencement until their conclusion”.
- Article
193 § 6 provides that the costs incurred in the course of a
preliminary criminal investigation (pretkrivični postupak),
which concern fees to be paid to a police-appointed lawyer, shall be
covered by the police themselves.
- Article
196 provides, inter alia, that a defendant who has been
convicted shall bear the costs of the criminal proceedings.
- Article
197 § 1 provides, inter alia, that should criminal
proceedings (krivični
postupak) against a defendant be discontinued, the indictment be
rejected, or the defendant be acquitted, the defence lawyer’s
fees shall be covered from the court’s budget.
- Article
197 § 6 provides, inter alia, that should the criminal
court reject a claim for costs made under Article 197 § 1, or
fail to rule thereupon within a period of three months, the defendant
and his or her lawyer shall have the right to file a separate claim
before the civil courts.
- Article
225, inter alia, sets out the general duties of the police
during a preliminary criminal investigation.
- Article
226 §§ 7-9, inter alia, regulates the questioning by
the police of persons suspected of having committed a crime, whose
statements may, under certain conditions, be used as evidence in the
subsequent criminal proceedings.
- Article
243 provides, inter alia, that a formal judicial investigation
shall commence upon the adoption of a specific judicial decision to
this effect.
B. The relevant commentary as regards Articles 193, 225
and 226 of the Criminal Procedure Code
- Costs
covered by the police in connection with Article 225 of the Criminal
Procedure Code cannot be considered as criminal procedure costs
within the meaning of Article 193 thereof (see Komentar Zakonika o
krivičnom postupku, Prof. dr Tihomir Vasiljević and
Prof. dr Momčilo Grubač, IDP Justinijan, Belgrade, 2005, p.
338, paragraph 2).
- General
duties of the police during a preliminary criminal investigation are
not formally regulated by the Criminal Procedure Code, the exception
to this rule being those activities referred to in Article 226 §§
7-9 (ibid., p. 397, paragraph 8).
C. The decision issued by the investigating judge of
the District Court in Subotica (Ki 25/04 of February 2005)
- The
investigating judge held, inter alia, that the defendant
against whom the charges had been dropped was not entitled to the
full recovery of his lawyer’s fees from the budget of the
District Court in Subotica. Specifically, he noted that since a part
of these fees concerned legal services rendered during a preliminary
criminal investigation it was up to the police themselves to cover
any such costs (the defendant’s lawyer in the domestic
proceedings being the applicant in the present case before the
Court).
D. The Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in OG RS no. 125/04)
- Article
1 provides, inter alia, that the Civil Procedure Act shall be
applied to all property-related/pecuniary matters (imovinskopravni
sporovi), except those where the law specifically provides for
another procedure.
- Article
16 provides, inter alia, that should a court establish its
lack of jurisdiction ratione materiae it shall, ex officio,
reject the claim in question regardless of the stage of the
proceedings.
E. The Courts’ Act 1991 (Zakon o sudovima;
published in OG RS 46/91, 60/91, 18/92 and 71/92)
- Article
12 § 2 (a) provides that Municipal Courts shall have
jurisdiction to rule in respect of all property-related/pecuniary
claims (imovinskopravnim zahtevima) unless they fall within
the competence of the Commercial Courts.
- Article
17 § 1 (z) provides that the Supreme Court shall be competent to
assess the lawfulness of all final administrative decisions adopted
by the State, unless specifically provided otherwise by law.
- Article
17 § 2 (v) provides that the Supreme Court shall resolve any
conflicts of jurisdiction (rešava sukobe nadleZnosti)
between the lower courts.
F. The Organisation of Courts Act 2001 (Zakon o
uređenju sudova; published in OG RS
nos. 63/01, 42/02, 27/03, 29/04, 101/05 and 46/06)
- Article
4 provides that a court of law cannot refuse to consider a claim in
respect of which its jurisdiction has been established by law or the
Constitution.
G. The General Administrative Proceedings Act (Zakon o
opštem upravnom postupku; published in OG FRY nos. 33/97 and
31/01)
- Article
208 § 1 provides, inter alia, that in simple matters an
administrative body shall be obliged to issue a decision within one
month as of when the claimant had lodged his or her request. In all
other cases, the administrative body shall render a decision within
two months thereof.
- Article
208 § 2 enables the claimant whose request has not been decided
within the periods established in the previous paragraph to lodge an
appeal as if his or her request has been denied. Where an appeal is
not allowed, the claimant shall have the right to directly initiate
an administrative dispute before the competent court of law.
H. The Administrative Disputes Act (Zakon o upravnim
sporovima; published in OG FRY no. 46/96)
- Article
6 provides that an administrative dispute may only be instituted
against an “administrative act”, which is, inter alia,
an act/decision adopted by a State body in the determination of one’s
rights and obligations concerning “an administrative matter”.
- Article
9 § 1 (1) provides that an administrative dispute may not be
instituted against an “act”/decision rendered in matters
where judicial redress has been secured outside of the administrative
disputes procedure.
- Articles
8 and 24 provide, inter alia, that a claimant who lodged a
request with an administrative body shall have the right to institute
an administrative dispute before a court in the following situations:
(i) Should
an appellate body fail to issue a decision upon his or her appeal
within sixty days the claimant may repeat the request, and if the
appellate body declines to rule within an additional period of seven
days the claimant may institute an administrative dispute.
(ii) In
accordance with the conditions set out under (i) above, should a
first instance administrative body fail to issue a decision and there
is no right to an appeal, the claimant may directly institute an
administrative dispute.
(iii) Should
a first instance administrative body fail to issue a decision upon
the claimant’s request within sixty days, in matters where an
appeal has not been excluded, the claimant shall have the right to
lodge the said request with the appellate administrative body. Should
that body render a decision, the claimant shall have the right to
institute an administrative dispute against it, and should it fail to
rule the claimant shall be entitled to institute an administrative
dispute in accordance with the conditions set out under (i) above.
- Article
41 § 5 provides that where an administrative dispute has been
brought under Article 24 the court shall, should it rule in favour of
the claimant, order the administrative body in question to decide
upon the claimant’s original request.
- Articles
63 provides, inter alia, that should the said administrative
body fail to comply with this instruction within a period of thirty
days, the claimant shall be entitled to request the enforcement of
the court’s decision. Should the administrative body fail to
respond to this request within a period of seven days, the claimant
may petition the court to decide his case on the merits, i.e. to
adopt the necessary decision in the administrative body’s
stead. The court shall then request information from the
administrative body as to the reasons for its failure to comply with
the court’s order. Should the administrative body fail to
respond within a period of seven days or should its explanation fail
to satisfy the court, the court itself shall decide on the claimant’s
original request.
- Articles
41 §§ 1-4, 61 and 62 provide details as regards other
situations in which a claimant’s request may be decided on its
merits.
I. The relevant commentary as regards Article 24 of the
Administrative Disputes Act
- There
is no deadline for the institution of an administrative dispute in
accordance with Article 24 of the Administrative Disputes Act (see
Komentar Zakona o opštem upravnom postupku i Zakona o
upravnim sporovima, Svetislav Vuković, Poslovni biro,
Belgrade, 2006, p. 219).
J. The relevant domestic case-law provided by the
Government
- In
six judgments rendered between 8 December 1999 and 9 April 2009 the
Supreme Military Court and the Supreme Court of Serbia, respectively,
ruled on the merits of administrative disputes concerning pension
entitlements, the right to stand for elections, property-related
municipal decisions, disability benefits and the proposed change in
the registration of persons authorised to represent political parties
(see Up. br. 2530/03, UZ. 133/92, UZ. 11/08, U.br. 1739/08, U.br.
48/08 and U.br. 1093/02).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 that he had been denied
access to a court of law in the determination of his civil rights and
obligations, i.e. the payment of the fees in question. The applicant
further complained, under the same provision, about the length of the
proceedings before the courts in Subotica.
- Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by ... [a] ... tribunal established by law ...”
A. As regards the access to a court
1. Admissibility
(a) Article 35 § 3 (b) of the
Convention
- The
Government argued that the applicant’s complaint concerning his
fees of 19 May 2004 should be declared inadmissible since “he
had not suffered a significant disadvantage” within the meaning
of Article 35 § 3 (b) of the Convention. In particular, they
noted that the applicant’s claim concerned fees in the amount
of EUR 105 only, and added that it had nevertheless been duly
considered by the Municipal Court and District Court in Subotica.
Lastly, the Government referred to the Court’s recent case-law
(Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010;
and Bock v. Germany (dec.), 19 January 2010), deeming it
particularly relevant.
- The
applicant acknowledged that his claim concerned a relatively small
amount, but argued that as a result of statutory interest it has
since increased considerably. He further noted the amount of fees
whose payment by the police he had requested subsequently (see
paragraphs 17- 20 above); referred to the litigation costs which he
had paid or which had been enforced against him (see paragraphs 12,
15 and 16 above); and recalled, in this context, that the average
salary in Serbia was approximately EUR 310. The applicant also
pointed out that Article 35 § 3 (b) of the Convention was not in
force at the time when he had lodged his application with the Court,
and maintained that the underlying issue in the present case was not
primarily financial: it concerned the payment of fees to
police-appointed defence counsel in the course of a preliminary
criminal investigation, i.e. an issue of great significance for the
functioning of the entire criminal justice system in Serbia. Finally,
the applicant’s claim had not been “duly considered”
by the domestic courts since they had offered no reasoning as to why
they considered it as an administrative rather than a civil matter.
- The
Court recalls that Article 35 of the Convention, as amended by
Protocol No. 14, which entered into force on 1 June 2010,
provides as follows:
“3. The Court shall declare inadmissible any
individual application submitted under Article 34 if it considers
that:
...
b. the applicant has not suffered a significant
disadvantage, unless respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be rejected
on this ground which has not been duly considered by a domestic
tribunal.”
- As
indicated in paragraph 79 of the Explanatory Report to Protocol
No. 14: “The new criterion may lead to certain cases being
declared inadmissible which might have resulted in a judgment without
it. Its main effect, however, is likely to be that it will in the
longer term enable more rapid disposal of unmeritorious cases”.
- The
main aspect of this new criterion is whether the applicant has
suffered any significant disadvantage, which assessment may itself be
based on criteria such as the financial impact of the matter at issue
or the importance of the case for the applicant (see, for example,
Mihai Ionescu v. Romania (dec.), cited above).
- However,
even should the Court find that the applicant has suffered no
significant disadvantage, it shall not declare an application
inadmissible if respect for human rights, as defined in the
Convention and the Protocols thereto, requires an examination on the
merits, or if the matter has not been “duly considered”
by a domestic tribunal.
- Turning
to the present case, even assuming that the applicant has not
suffered a significant disadvantage in view of the said financial
impact and quite apart from the requirement for his complaint to have
been duly considered by a tribunal, the Court is of the opinion that
respect for human rights, as defined in the Convention, requires its
examination on the merits. As noted by the applicant, the role of a
police-appointed lawyer in a preliminary criminal investigation is
crucial in terms of maintaining the functioning and fairness of the
Serbian criminal justice system, particularly since statements made
in his or her presence may be used as evidence in the subsequent
criminal procedure (see paragraph 27 above). It follows therefore
that issues closely related to the procedural status of such lawyers,
including the payment of their fees, without which their continued
participation clearly could not be relied on, cannot be considered
trivial, or, consequently, something that does not deserve an
examination on the merits.
- As
regards the Court’s decisions in Mihai Ionescu v. Romania
and Bock v. Germany
(both cited above), it is noted that these cases are clearly
distinguishable from the application at hand since, inter
alia, the former concerned access to
a court in a case involving contractual issues between the applicant
and a transportation company, whilst the latter concerned the length
of proceedings in a suit where the applicant had claimed EUR 7.99 for
the medication prescribed by his physician. In other words, neither
raised issues of general interest.
- In
view of the above, the Government’s objection must be
dismissed.
(b) Exhaustion of domestic remedies
- The
Government maintained that the applicant had failed to make use of
the relevant administrative remedies and thereafter, if needed, to
institute an administrative dispute before the Supreme Court.
- The Court considers that this objection goes to the
very heart of the question whether the applicant had been denied the
right of access to a court in the determination of his civil rights
and obligations in breach of Article 6 § 1 of the Convention. It
would thus be more appropriately examined at the merits stage.
(c) Conclusion
- The
Court notes that the applicant’s complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
ground. It must therefore be declared admissible.
2. Merits
- The
Government submitted that there had been no violation of the
Convention as the applicant had not been denied access to a court in
respect of his fees-related request. Indeed, he had simply chosen an
inappropriate avenue of redress, i.e. a civil claim, instead of
having made use of the existing administrative remedies and then, if
necessary, brought an administrative dispute before the Supreme
Court. Further, the applicant should have tried the administrative
avenue even if he had had some doubt as to its effectiveness. Lastly,
the Government submitted that domestic courts have frequently ruled
in administrative disputes on the very merits of a claimant’s
request, in which respect they provided the Court with relevant
domestic jurisprudence (see paragraph 47 above).
- The
applicant firstly maintained that he had not instituted
administrative proceedings on 19 May 2004, having instead merely
requested the police to pay his fees. Secondly, this payment was not
an administrative matter as defined under Articles 6 and 9 of the
Administrative Disputes Act (see paragraphs 40 and 41 above). It was,
rather, a pecuniary dispute referred to in Article 1 of the Civil
Procedure Act, and, as such, actionable before the civil courts (see
paragraph 32 above). Thirdly, even assuming that the administrative
avenue could be deemed available, it could not be considered
effective in a case such as the applicant’s since the
Government have failed to provide relevant domestic case-law to this
effect. Moreover, administrative redress would have taken too long,
and would have involved the Supreme Court which is normally most
reluctant to decide a case on its merits, preferring instead to quash
the impugned decision and remit the matter for administrative
re-examination. Fourthly, the applicant recalled that, in any event,
even where there are several effective remedies available, it is for
the applicant to select which remedy to pursue.
- In
its Golder v. the United Kingdom judgment of 21 February 1975,
the Court held that Article 6 § 1 “secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal” (§ 36, Series A no.
18). This “right to a court”, of which the right of
access is an aspect, may be relied on by anyone who considers on
arguable grounds that an interference with the exercise of his or her
civil rights is unlawful and complains that no possibility was
afforded to submit that claim to a court meeting the requirements of
Article 6 § 1 (see, inter alia, Roche v. the United
Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X).
- Turning
to the present case, it is noted that the applicant’s
fees-related claims clearly fall within the scope of Article 6 §
1 (see, mutatis mutandis, Editions Périscope v.
France, 26 March 1992, § 40, Series A no. 234 B).
Further, while it is not this Court’s task to decide which
domestic court, civil or administrative, had jurisdiction to
determine these claims on their merits (see Beneficio Cappella
Paolini v. San Marino, no. 40786/98, § 29, ECHR 2004 VIII
(extracts)), it is noted that: (i) the domestic civil courts had
considered the fees issue as an administrative matter and had offered
some reasoning in this respect (see paragraph 14 above); (ii) the
applicant could therefore have made use of the administrative avenue
and, if needed, brought his case to the Supreme Court, apparently
without a deadline for so doing (see paragraphs 38-46 above); and
(iii) the Supreme Court could, ultimately, either have ruled on the
merits or indicated which other court had jurisdiction to proceed
(see paragraphs 44, 35 and 36 above, in that order; compare also to
Beneficio Cappella Paolini v. San Marino, cited above, where
both the civil and the administrative courts had declined
jurisdiction). Finally, the applicant has failed to provide domestic
case-law to the effect that in any other case such as his own the
civil courts had declared themselves competent ratione materiae,
whilst the respondent State has, for its part, produced jurisprudence
indicating that the domestic judiciary has been willing to consider
very diverse claims within an administrative disputes’ context,
as well as to grant redress on the merits where appropriate (see
paragraph 47 above).
- In
such circumstances, the Court cannot but conclude that the applicant
has not been denied access to a court in the determination of his
civil rights and obligations. Accordingly, there has been no
violation of Article 6 § 1 of the Convention.
- The
Court further finds that in the light of this conclusion it is not
necessary to decide on the Government’s objection as to the
exhaustion of domestic remedies.
B. As regards the length of the proceedings before the
civil courts
- The
impugned proceedings before the Municipal Court and District Court in
Subotica lasted between September 2004 and September 2006, during
which time the applicant’s claim was considered at two
instances. It follows that this part of the application is manifestly
ill-founded and must, as such, be rejected in accordance with Article
35 §§ 3 and 4 of the Convention.
II. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION
- The
applicant noted that he had received correspondence from the Court
with significant delay and, further, that the envelope itself had
already been opened by others. In this connection he suggested that
this could either have been an “innocent mistake” on the
part of the Serbian postal services or a deliberate hindrance in the
effective exercise of his right of petition to the Court within the
meaning of Article 34 of the Convention. In support of the latter
proposition, the applicant recalled that the Serbian postal services
were State-run, and emphasised that his application before the Court
involved sensitive police-related issues.
- The
Government submitted that there has been no violation of Article 34
of the Convention, as the applicant had not been pressured, directly
or indirectly, by the State in order to be dissuaded from pursuing
his application before the Court. The delay referred to by the
applicant was of a purely technical nature, a fact well-known to the
Court which has encountered the same problem in many other cases
against Serbia currently pending before it.
- Article
34 of the Convention provides as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- According to the Court’s case-law, a complaint
under Article 34 of the Convention does not give rise to any issue of
admissibility under the Convention (see Cooke v. Austria,
no. 25878/94, § 46, 8 February 2000; and Ergi v.
Turkey, judgment of 28 July 1998, § 105, Reports
1998-IV).
- The
Court notes that Article 34 of the Convention imposes an obligation
on a Contracting State not to hinder the right of the individual
effectively to present and pursue a complaint with the Court. While
the obligation imposed is of a procedural nature distinguishable from
the substantive rights set out in the Convention and Protocols, it
flows from the very essence of this procedural right that it is open
to individuals to complain of alleged infringements of it in
Convention proceedings (see Manoussos v. the Czech Republic and
Germany (dec.), no. 46468/99, 9 July 2002).
- It
is of the utmost importance for the effective operation of the system
of individual application instituted by Article 34 that applicants
should be able to communicate freely with the Court without being
subjected to any form of pressure from the authorities to withdraw or
modify their complaints. In this context, “pressure”
includes not only direct coercion and flagrant acts of intimidation,
but also other improper indirect acts or contacts designed to
dissuade or discourage applicants from using a Convention remedy. The
issue of whether or not contacts between the authorities and an
applicant amount to unacceptable practices from the standpoint of
Article 34 must be determined in the light of the particular
circumstances (ibid.).
- Turning
to the present case, the Court finds that there is an insufficient
factual basis for it to conclude that the authorities of the
respondent State have interfered in any way with the applicant’s
exercise of his right of individual petition, it being noted that the
applicant himself has allowed for the possibility that the entire
situation was due to an “innocent mistake”. It is further
the case, as pointed out by the Government, that the Court has had
problems with delayed postal deliveries to and from Serbia, and it
certainly cannot speculate as to who may have opened the envelope of
the correspondence addressed to the applicant and in which context.
- In
view of the foregoing, the Court finds that the respondent Sate has
not failed to comply with its obligations under Article 34 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government’s
preliminary objection as to the non-exhaustion of domestic remedies
in respect of the complaint about the applicant’s access to a
court;
- Declares
the complaint concerning the applicant’s access to a court
admissible and the complaint about the
length of the proceedings at issue inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
- Holds that the respondent State has not failed
to comply with its obligations under Article 34 of the
Convention;
- Holds that in the light of its conclusions under
points 2 and 3 it is not necessary to decide on the Government’s
preliminary objection mentioned in point 1.
Done in English, and notified in writing on 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
