Communicated on 25 January 2018
SECOND SECTION
Application no. 48343/16
Ljubo BIGOVIĆ
against Montenegro
lodged on 3 August 2016
STATEMENT OF FACTS
The applicant, Mr Ljubo Bigović, is a Montenegrin national, who was born in 1976 and is currently serving a prison sentence in the Institute for Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija; “IECS” hereinafter) in Spuž. He is represented before the Court by Ms B. Franović, a lawyer practising in Podgorica.
A. The circumstances of the case
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
2. On 16 February 2006 the applicant was arrested on suspicion of criminal enterprise (zločinačko udruživanje), attempted extortion (iznuda u pokušaju) and aiding in the commission of an aggravated murder (teško ubistvo putem pomaganja).
1. The applicant’s detention
3. On 19 February 2006 the investigating judge of the High Court (Viši sud) in Podgorica issued a detention order against the applicant, and several other persons, for fear that they might abscond. The decision specified that the detention would last for a month starting as of 16 February 2006.
4. The detention of the applicant and one other person was further extended on 16 March, 15 April, 16 May, 15 June, and 12 July 2006, each time for another month, in substance for fear that they might abscond. Relying on Article 148 § 1(1) of the Criminal Procedure Code (CPC) in force at the time (see paragraph 43 below) the courts specified, inter alia, that there was an ongoing investigation against them, and that a number of witnesses remained to be interviewed.
5. On 14 August 2006 the Supreme State Prosecutor (Special Prosecutor) filed an indictment against the applicant and several other persons.
6. The defendants’ detention, including the applicant’s, was further extended by the High Court on 15 August 2006 and 21 October 2008 for fear that they might abscond. The decisions did not specify for how long the detention was extended. It appears that the detention was extended also on 11 March 2009, but the applicant submits that that decision has never been served on him.
7. On 7 August 2009 the High Court found the applicant guilty of several criminal offences and sentenced him to thirty years in prison. The same day the detention of four defendants, including the applicant’s, was extended until the High Court judgment became final or until the expiration of the time-limits provided for by Article 152 §§ 3 and 4 of CPC (see paragraph 45 below) or, in any case, until the expiration of the prison sentence imposed by the first-instance judgment.
8. On 17 February 2010 the Court of Appeal (Apelacioni sud) in Podgorica quashed the High Court judgment. The same day it extended the detention of four defendants, including the applicant, considering that the reasons for detention still persisted. The court relied on Article 148 § 1(1) and (4) (see paragraph 43 below).
9. On 4 March 2011 four defendants including the applicant requested that they be released (predlog za ukidanje pritvora). On 10 March 2011 the High Court dismissed the request, considering that the circumstances on the basis of which their detention had been extended still persisted. It transpires from this decision that on 27 September 2010 the Supreme Court issued an opinion (zauzeo načelni pravni stav) (Su.VI br 81/10) that proceedings for organised crime, corruption, terrorism and war crimes after 26 August 2010 would be conducted pursuant to the CPC 2009 (see paragraph 47 below).
10. On 9 May 2011 the High Court found the applicant guilty of several criminal offences and sentenced him to thirty years in prison. The same day the court extended four defendants’ detention, including the applicant’s, until the judgment became final or until the sentence imposed thereby expired. Relying on Article 175 § 1(1) and (4) of CPC 2009 (see paragraphs 48-49 below), the court considered that in view of the sanction imposed the defendants might flee if released, and that releasing them could seriously jeopardise public order and peace.
11. On 30 December 2011 the Court of Appeal quashed the High Court’s judgment. The same day the court extended the detention of five defendants, including the applicant’s, considering that the reasons for detention still persisted.
12. On 1 February 2012, relying on Articles 5 and 6 of the Convention, the five defendants, including the applicant, sought their release. On 8 February 2012 the High Court dismissed this request considering that the circumstances had not changed since the previous extension decision.
13. On 11 April and 13 June 2012 the High Court, acting pursuant to Article 179 § 2, further extended the five defendants’ detention, including the applicant’s, “until further notice” (ima trajati do dalje odluke suda), for fear that they might abscond and that their release would seriously jeopardise public order and peace. In doing so the court relied on Article 175 § 1(1) and (4).
14. It would appear from the case file that detention was extended on 10 August 2012 as well.
15. On 9 October 2012 the High Court, inter alia, found the applicant guilty of incitement to attempted extortion, public endangerment and an aggravated murder, and sentenced him to thirty years in prison. The same day the court extended four defendants’ detention, including the applicant’s, until the first-instance judgment became final or until the prison sentence imposed thereby expired. Relying on Article 175 § 1(1) and (4) the court considered that the fear of their absconding persisted and that there were particular circumstances indicating that releasing them would seriously jeopardise public order and peace.
16. On 2 April 2013 the Court of Appeal upheld the first-instance judgment.
17. On 2 April 2014 the Supreme Court quashed the Court of Appeal’s judgment. The same day the Supreme Court extended the detention of four defendants, including the applicant’s, considering that the reasons for detention persisted.
18. On 1 August 2014 the applicant requested his release. Relying on Article 5 of the Convention and the relevant case-law he complained in his submission, inter alia, about the length of his detention and the insufficient reasoning of the decisions extending his detention, the lack of regular review of his detention, lack of medical care and poor conditions in detention, and deterioration of his health, given that in October 2013 he had been diagnosed with ulcerous colitis. In the absence of any reply, he submitted the same request to the Court of Appeal and by 16 January 2015 had on several occasions urged both the High Court and the Court of Appeal to rule thereon.
19. On 20 February 2015 the Court of Appeal upheld the High Court’s judgment of 9 October 2012. The same day, relying on Article 175 § 4 of CPC, the court extended the four defendants’ detention, including the applicant’s, finding that the reasons therefor persisted.
20. On 12 March 2015 the Supreme Court, acting upon the applicant’s appeal, quashed a detention extension of 20 February 2015, finding that Article 175 § 4 of the CPC, on which the Court of Appeal had relied, did not exist, as the relevant provision contained only two paragraphs. The court also acknowledged that there was no reasoning as to whether the applicant’s health affected further detention.
21. On 16 March 2015 the Court of Appeal extended the four defendants’ detention, including the applicant’s, relying on Article 175 § 1(4). It found the applicant’s health of no relevance to further detention, given that it transpired from the IECS submission of January 2015 (see paragraph 30 below) that the applicant had been provided with adequate medical care and diet.
22. On 20 March 2015 the applicant appealed, relying on Articles 5 and 6 of the Convention. He submitted that the decision on detention extension had been issued for all defendants together, and that it failed to provide concrete reasons for his detention extension. He further maintained that the IECS clearly could not provide him with adequate medical care as he had been taken to various health institutions dozens of times and he described the relevant conditions in detail.
23. On 27 March 2015 the Supreme Court dismissed the appeal. While acknowledging that the relevant judgment was not yet final the court took into account that the defendants had been found guilty of incitement to the commission of aggravated murder, for which a prison sentence of ten years or more was prescribed. It also held that the Court of Appeal had sufficiently examined the applicant’s health and its relevance to detention.
24. On 7 May 2015, invoking Articles 3, 5 and 6 of the Convention, the applicant lodged a constitutional appeal against the decisions of the Court of Appeal of 16 March 2015 and the Supreme Court of 27 March 2015. He complained, in particular, about: (a) length of detention and insufficient reasoning of the relevant decisions, (b) detention not having been regularly reviewed; (c) not ruling on his request for release submitted on 1 August 2014, and (d) inadequate medical care and conditions in detention and prison.
25. On 20 October 2015 the Supreme Court, in substance, upheld the judgment of the Court of Appeal of 20 February 2015 and the applicant’s sentence of thirty years in prison.
26. On 28 December 2015 the Constitutional Court dismissed the applicant’s constitutional appeal. The court found, in particular, that the impugned decisions had been rendered by competent courts, in a procedure prescribed by law, on the basis of the CPC, and that the reasons contained therein were not arbitrary. As regards the length of detention the court held that Article 5 distinguished between detention before and after conviction. It held that the lawfulness of detention could be assessed only until the first‑instance judgment, which did not have to be final. Given that the first‑instance judgment had been issued on 7 August 2009 the applicant’s constitutional appeal in that regard was belated. As regards medical care the court considered that the applicant’s health had been continuously monitored by a number of specialists in various institutions, and that he had been provided in a timely manner with reasonable available medical care (pravovremeno su pružili razumnu dostupnu medicinsku njegu). The decision does not address the conditions in detention, whether detention had been regularly reviewed and the failure to rule on the applicant’s request for release. This decision was served on the applicant on 25 March 2016.
2. The applicant’s health
27. In October 2013 the applicant was diagnosed with ulcerous colitis and prescribed a special diet therefor. Following the consent of the High Court judge of 9 December 2013, special food was provided by the applicant’s family at first once a day, and later once a week.
28. In 2014 the applicant was, inter alia, hospitalised twice in the Clinical Centre of Montenegro (a State-run hospital) due to worsening of his ulcerous colitis. He was prescribed a medication called Vedolizumab, unavailable in Montenegro. That being so, the applicant had four doses bought for him in Germany, for which he paid 17,222.40 euros (EUR). The first dose was administered on 22 December 2014. The doctors from the Clinical Centre also recommended eye surgery in a private hospital, for which the applicant paid EUR 2,600.
29. In 2015 the applicant received three more doses of Vedolizumab. The doctors noted “evident improvement” and considered it of utmost importance that he got the fifth dose, as “every delay thereof increased the risk of worsening the illness”. As the fifth dose, due on 25 May, was not provided, the applicant had two more doses bought for him in Germany on 22 July 2015, the cost of which was EUR 5,975.94. In the course of 2015 he was hospitalised twice (once for worsening of his ulcerous colitis), he was examined by a number of specialists from the Clinical Centre and a special hospital for orthopaedics, neurosurgery and neurology in Risan and received a number of medications. He was diagnosed with advanced knee arthrosis, had knee surgery and was recommended to have another one, which would not appear to have taken place yet. He was also advised by the doctors to go for recovery to the Rehabilitation Institute in Igalo, where he stayed between 7 September and 7 December 2015, and for which he had to pay EUR 10,673.60.
30. In its information submitted to the Ministry of Justice in January 2015 the IECS maintained that it provided both medical care and various diets. Where needed medical care was also provided in public health institutions and Prison Rules allowed for inmates to provide for their own food. In particular, the applicant had been taken to various hospitals and specialists, and was allowed to provide for his own food.
31. In his official report (službena zabilješka) of 2015 the President of the High Court noted that the applicant had to provide for his own medication as it did not exist in Montenegro, the cost of one course being between EUR 4,000 and EUR 5,000, and that his attempts to be reimbursed had failed. The judge considered the conditions in detention irrelevant as the applicant’s illness was auto-immune. The IECS Director confirmed that the IECS had attempted to obtain Vedolizumab, but to no avail, as it belonged to a group of biological medications the registration of which was in progress.
32. On 10 June 2015 three medical experts (one in court medicine, one in internal medicine – a gastroenterohepatologist, and a psychiatrist) issued an opinion on the applicant’s health, after having examined him and his medical file. They noted that ulcerous colitis was incurable and that apart from genetic factors it was generated by stressful circumstances. They recommended that the applicant be treated in the least stressful environment possible, that is that he be “isolated from the IECS”. They observed that his health had constantly deteriorated until he started with Vedolizumab, and that “even though the medication was not registered in Montenegro it was absolutely medically indicated and necessary to try its application as the only other alterative was surgical removal of the colon, which needed to be avoided as long as there was any other option”.
33. The doctors further observed that the applicant suffered from myopia, that he could not see in the left eye and he had an artificial lens implanted in the right eye, that he had a dislocation of the fourth and fifth lumbar vertebrae and ossification of the lumbar part of his spine, ossification of his left knee, an injury of a nerve in his left calf, he walked with crutches, and had two skin infections following the administration of injections as a result of the lack of disinfectant alcohol in the prison. The prison doctor later confirmed that there had indeed been no alcohol in IECS for a considerable time and that it could not provide for the applicant’s special diet, which is why his family was allowed to bring him food.
34. The doctors described the applicant’s cell as a “classical prison cell”, where only the applicant was held at the time although he sometimes had a cell-mate. There was a toilet, apparently not separated from the rest of the room, and a separate tank of water. The doctors considered that the lack of water and shower in the room could additionally cause deterioration of the applicant’s health because of an increased risk of infection.
35. In 2016 the applicant was prescribed three more doses of Vedolizumab, but apparently received none after early 2016. His health would appear to have deteriorated as of September 2016.
36. In August and September 2017 a gastro-specialist opined that the applicant needed surgery, which the applicant apparently refused. The doctor considered that it was practically impossible for the applicant to achieve remission given that the conditions in which he stayed increased the risk of complications and could be life-threatening. On 18 September 2017 a medical expert submitted an expert opinion at the request of the applicant’s representatives, maintaining that there was a threat of malign alteration, which would inevitably end in the applicant’s death, and that it was absolutely necessary to find solutions allowing adequate nutrition, the permanent administration of complex treatment, moderate daily physical exercise and an absence of stressful situations. The conditions in which the applicant stayed were described as unfavourable for remission.
37. It would appear that on 26 September 2017 the applicant submitted a request for an extraordinary reduction of his sentence for health-related reasons. The court requested an expert opinion in this regard, which was produced in October 2017. The expert submitted that stressful conditions in the IECS limited the possibility of adequate nutrition, and dietetic measures were such that the applicant would never achieve remission as long as he was in the IECS. Such course of illness was harmful and threatened to develop serious complications, some of which could undoubtedly be life‑threatening.
B. Relevant domestic law
1. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07)
38. Article 30 contains details as regards detention. Paragraph 4, in particular, provides that the duration of detention must be as short as possible (mora biti svedeno na najkraće moguće vrijeme).
2. The Criminal Procedure Code 2003 (Zakonik o krivičnom postupku; published in the Official Gazette of the Republic of Montenegro nos. 71/03, 07/04 and 47/06)
39. Article 16 provided, inter alia, for an obligation on the courts to conduct the proceedings without delays, and to limit the duration of detention to the shortest time needed.
40. Article 136 provided that a defendant’s participation in criminal proceedings could be secured by means of summonses, his forcible appearance in court, surveillance measures, as well as the imposition of bail and detention. The competent court would ensure that a more severe measure was not applied if a less severe measure could achieve the same purpose. Also, the measures would cease automatically when the reasons for their application ceased to exist, or would be replaced with other less severe measures once the conditions had been met. Articles 137 to 153 set out details as to each of these measures.
41. Article 147 § 2, in particular, provided for a duty on the part of all the bodies involved in the criminal proceedings to act with particular urgency if the accused was in detention.
42. Article 148 § 1(1) and (4) provided that detention could be ordered if there was a reasonable suspicion that an individual had committed a crime for which he could be sentenced to ten years’ imprisonment or more, if it was justified by especially aggravating circumstances of the crime in question, or if there were circumstances indicating that he or she might flee.
43. Article 149 § 2 provided that a detention order must specify, inter alia, a period of detention.
44. Article 152 set out details as regards the length of detention after an indictment was issued. In particular, Article 152 § 2 provided that once an indictment entered into force a panel of judges, upon a proposal of the parties or of its own motion, “had a duty” (je dužno) to examine every two months (svaka dva mjeseca) if the reasons for detention persisted, and to issue a decision extending the detention if so or revoking it if not. Article 152 § 3 further provided that the detention could last three years at most after the indictment had been issued. If the defendant was not served with a first-instance decision within that time-limit the detention would be revoked and the defendant released. Article 152 § 4 provided that after the delivery of the first-instance decision the detention could last for another year at most. If no second‑instance judgment overturning or upholding the first-instance judgment was delivered within that year, the detention would be repealed and the accused released. If the second-instance court quashed the first‑instance judgment, the detention could last for at most another year after the delivery of the second-instance judgment.
45. Article 397 provided, inter alia, that a second-instance court could quash a first-instance judgment and order a retrial. If the accused was in detention, the second-instance court would examine whether the reasons for detention still persisted and issue a decision either extending or terminating the detention. No appeal was allowed against that decision.
3. The Criminal Procedure Code 2009 (Zakonik o krivičnom postupku; published in the OGM nos. 57/09 and 49/10)
46. On 27 September 2010 the Supreme Court issued an opinion (zauzeo načelni pravni stav) (Su.VI br 81/10) ruling that proceedings for organised crime, corruption, terrorism and war crimes would be conducted pursuant to this Code as of 26 August 2010. As regards other criminal proceedings this Code entered into force on 1 September 2011.
47. Articles 15, 163, 174 § 2, 175 § 1(1), 176 § 5 and 179 of this Code correspond in essence to Articles 16, 136, 147 § 2, 148 § 1(1), 149 § 2 and 152, respectively, of the previous Code.
48. Article 175 § 1(4) initially provided that detention could be ordered when there was a reasonable suspicion that a person had committed a crime for which he or she could be sentenced to ten years’ imprisonment or more, and which was particularly grave due to the manner in which it was committed or in view of its consequences, and there were special circumstances indicating that the release of that person would seriously jeopardise the maintenance of public order and peace.
49. On 28 October 2014 the Constitutional Court (U-I br.18/09) held the last part of Article 175 § 1(4) unconstitutional, notably the part reading “there were special circumstances indicating that the release of that person would seriously jeopardise maintaining of public order and peace”. That part ceased to be in force on 16 January 2015.
COMPLAINTS
The applicant complains under Articles 3 and 5 of the Convention about an alleged lack of medical care and poor conditions in detention, insufficient reasoning of the decisions extending his detention and the length of his detention, lack of regular examination of whether his detention was still justified, and lack of speed in deciding on his release.
QUESTIONS TO THE PARTIES
1. Was the applicant afforded appropriate medical care in detention? Has there been a violation of Article 3 of the Convention in this respect (see, mutatis mutandis, Wenerski v. Poland, no. 44369/02, § 64, 20 January 2009)?
The Government are also invited to inform the Court of the following:
(a) what is the policy on prescribing the Vedolizumab in general and, if prescribed, who covers the costs of it, the patient or the State;
(b) was the eye surgery that the applicant underwent necessary and, if so, was it available in State hospitals and who covers the expenses therefor; and
(c) who covers the expenses of rehabilitation in Igalo?
2. Did the conditions of the applicant’s detention amount to degrading treatment in breach of Article 3 of the Convention (see, inter alia, Kadiķis v. Latvia (no. 2), no. 62393/00, § 52, 4 May 2006; Modarca v. Moldova, no. 14437/05, §§ 60-69, 10 May 2007; Ostrovar v. Moldova, no. 35207/03, § 82, 13 September 2005?
The Government are also requested to comment on the following points:
(a) what was the floor surface of the cell (in square metres) in which the applicant stayed?
(b) How many beds were available in the cell at the time of his stay?
(c) How many detainees were held in the cell at the time of the applicant’s stay? Indicate the maximum number of detainees, not the average.
(d) Was the toilet in the applicant’s cell separated from the rest of the room, and who was in charge of cleaning the applicant’s cell?
(e) Indicate the duration of out-of-cell time available to him per day and the area available for this purpose.
(f) Indicate the frequency and the duration of outdoor exercise, the surface area of the exercise yard (in square metres) he can use during exercise and the type of covering above the yard (metal bars, solid roof, netting, etc.).
3. Was the applicant’s deprivation of liberty in breach of Article 5 § 1 of the Convention? In particular, how often was his detention examined and extended? Was the statutory time-limit of two months specified in Article 152 § 2 of the Criminal Procedure Code 2003 and Article 179 § 2 of the Criminal Procedure Code 2009 mandatory or not, and was the relevant legislation foreseeable in its application (see Mugoša v. Montenegro, no. 76522/12, § 56, 21 June 2016)?
The Government are invited to inform the Court if during the hearings (glavni pretresi) the applicant and/or his representatives sought that he be released or complained about his detention, and if the courts decided thereon. The Government are invited to submit transcripts of all the hearings and any other relevant documents in that regard.
4. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention (see Bulatović v. Montenegro, no. 67320/10, §§ 144-149, 22 July 2014; Korchuganova v. Russia, no. 75039/01, §§ 70-77, 8 June 2006; Labita v. Italy [GC], no. 26772/95, § 159, ECHR 2000‑IV; Herczegfalvy v. Austria, 24 September 1992, § 71, Series A no. 244).
5. Was the procedure by which the applicant sought to challenge the lawfulness of his detention on 1 August 2014 in conformity with Article 5 § 4 of the Convention? In particular, did the length of the proceedings by which the applicant sought to challenge the lawfulness of his detention comply with the “speed” requirement of Article 5 § 4 of the Convention (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 131, ECHR 2016 (extracts), and the authorities cited therein)? The Government are also invited to inform the Court if the domestic courts ruled on the applicant’s request for release submitted on 1 August 2014 and, if so, to submit the relevant decision in this regard.
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