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 tha t 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 Varaždin 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 Varaždin 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.