FOURTH SECTION
Application nos. 1451/10, 7260/10 and 7382/10
by Anton SINIŠTAJ, Viktor SINIŠTAJ, Pjetar DEDVUKAJ, Djon DEDVUKOVIĆ, Nikola LJEKOČEVIĆ, Kola DEDVUKAJ and Rok DEDVUKAJ
against Montenegro
lodged on 29 December 2009, 31 January 2010 and 26 January 2010, respectively
STATEMENT OF FACTS
THE FACTS
The applicants are Mr Anton Siništaj (the first applicant), Mr Viktor Siništaj (the second applicant), Mr Pjetar Dedvukaj (the third applicant), Mr Djon Dedvuković (the fourth applicant), Mr Nikola Ljekočević (the fifth applicant), Mr Kola Dedvukaj (the sixth applicant) and Mr Rok Dedvukaj (the seventh applicant). The first and second applicants are Albanian nationals represented before the Court by Mr R. Prelević, a lawyer practicing in Podgorica. The third, fourth and fifth applicants are Montenegrin nationals represented before the Court by Mr K. Camaj, a lawyer practising in the same town. The sixth and seventh applicants are US nationals of Albanian origin represented before the Court by Mr S. Powels, a lawyer practising in London.
A. The circumstances of the cases
1. The facts of the cases, as submitted by the applicants, may be summarised as follows:
1. The alleged ill-treatment and subsequent criminal complaints
2. In the early morning hours of 9 September 2006 a special anti-terrorist unit arrested seventeen persons, including the applicants, on suspicion of associating for the purposes of anti-constitutional activities (udruživanje radi protivustavne djelatnosti), preparing actions against the constitutional order and security of Montenegro (pripremanje djela protiv ustavnog uređenja i bezbjednosti Crne Gore) and illegal possession of weapons and explosives (nedozovoljeno držanje oružja i eksplozivnih materija).
3. The applicants maintain that as of the moment of their arrest and during the next few days, during the police detention as well as when being taken to the investigating judge, they were ill-treated with the aim of having their statements extorted. In particular, they were beaten, deprived of food, verbally abused, including on the basis of their ethnic origin, and threatened by police officers.
4. On 11 and 12 September 2006, when interrogated by the investigating judge of the High Court, the applicants made statements to that effect. The investigating judge included these statements in the interrogation minutes, as well as the following: (a) the third applicant had a bandage on his head beneath which there was a visible cut (razderotina), as well as a haematoma (krvni podliv) in the upper part of his left cheekbone (jagodica); (b) the fourth applicant admitted that he did not have any injuries; (c) the fifth applicant had a haematoma on both shoulders, in the area above both elbows, a scratch on the outside part of his left ankle (skočni zglob), a haematoma on the left ankle as well as on the outside part of the left thigh, dimensions of which were 10x1.5 cm; the fifth applicant also maintained that he had a pain in his right ear; and (d) the seventh applicant had a scratch on his left elbow and left knee, a haematoma on the left part of his back above the hip; he complained that his ribs hurt, and that he could barely move and breathe.
5. On 12 September 2006 a prison doctor examined the third applicant and noted in a medical report that he had a 5 cm long scratch on top of his head, a dark blue haematoma on the left cheekbone 4x0.3 cm, a dark blue haematoma stretching from his left nipple to an armpit 25x3 cm and a large hematoma above the left elbow.
6. On 14 September 2006 the first, second, fourth, fifth and seventh applicants filed a criminal complaint (podnijeli krivičnu prijavu) with the investigating judge against unknown police officers for extorting their statements (iznuđivanje iskaza), torture and ill-treatment in the period between 9 and 11 September 2006.
7. Between 27 and 29 September 2006 all the applicants save for the third one signed written statements to their lawyers describing the ill-treatment they had been subjected to.
8. On 13 October 2006 the above criminal complaint was amended so as to include the sixth applicant’s complaint to the same effect. The applicants also expressed their readiness to identify the officers who ill-treated them. In addition, the first and second applicants complained against police officers who had taken them to the investigating judge on 11 September and 15 September 2006 for ill-treating, beating and insulting the two of them on these occasions.
9. It would appear that on 28 October 2006 the third applicant filed a criminal complaint with the investigating judge against D.R. and several other unidentified police officers. No copy of this complaint has been provided. On 30 May 2008 he submitted to the Supreme State Prosecutor the name of one of the officers who were present during his questioning in the police station. At the same time he urged the Prosecutor to deal with his criminal complaint, to identify all the officers who were involved in his arrest as well as to identify (utvrdi) which actions had been taken in respect of him during police detention.
10. On 17 November 2006 the Internal Control Division of the Police Directorate issued a report concerning the legality of police actions during the arrest and pre-trial proceedings. According to the report, a special internal control team was formed, which identified all the police officers involved in the action. A total of 136 interviews were conducted, both with the police officers as well as with family members of some of the arrested persons, apparently including the father of the first applicant as well as an owner of the house in which the seventh applicant had been arrested. None of the two latter mentioned any force being used against the first and seventh applicants. The police officers involved denied any illegal actions. The Special Prosecutor for Prevention of Organised Crime stated that none of the arrested persons had been tortured to her knowledge. The investigating judge stated that they had complained about the torture and their statements to that effect had been recorded in the interrogation minutes. Medical reports issued in prison stated that the first, second and sixth applicants had no visible injuries, the fifth applicant had “several scratches and suffusion” and the seventh applicant “redness of a size of 1 euro” on his left shoulder. The report suggested that the injuries observed in respect of two other detainees arrested on the same occasion had been inflicted when these persons confronted the police officers during the arrest, on which a special official record had been made. On the basis of such findings the Internal Control Division could not confirm that there were any grounds for the involved officers’ responsibility. However, it was decided that all the relevant documents should be submitted to the State Prosecutor for further consideration.
11. On 15 June 2007, during the main hearing (glavni pretres), the fourth applicant stated that he had been beaten at the police station on his head and body, and his ribs had been broken. He submitted to the Court a medical report issued by a private hospital in Podgorica on 9 June 2010. During this medical examination he stated, inter alia, that he had been beaten by the police in 2006, but that he had not consulted a doctor about that. An X-ray of the applicant’s chest showed a double old fracture of the fourth rib, as well as an old fracture of the right clavicle (klavikula). The doctor diagnosed high blood pressure and prescribed him a treatment.
12. On 30 October 2007 the first applicant submitted to the State Prosecutor (Osnovni državni tužilac) the name of M.L., a police officer who was in the same shift as the officer who had ill-treated him on 9 September 2006 and who therefore surely knew the name of this officer.
13. On 14 January 2008 the first and second applicants urged the State Prosecution (Osnovno državno tužilaštvo) in Podgorica to act on their criminal complaint. The first applicant also submitted a number of a police badge of one of the officers who apparently showed off in front of another detainee for having personally beaten the first applicant.
14. On 16 June 2008 the second applicant urged the State Prosecution to deal with his complaints. He also submitted the names of some of the police and prison officers who ill-treated the applicants on 9, 11 and 12 September 2006. He reiterated that there were other officers and special unit members who had ill-treated them, who were still unidentified.
15. On 25 September 2008 a prison doctor examined the seventh applicant and noted in a medical report that he had pain in his spine as of ten years before, which pain became more acute over the last 12 months, that he was urinating more often, his blood pressure was 110/70, he could not walk on his toes, and that his lungs were fine. A part of the medical report was illegible.
16. On 10 November 2010 the fifth applicant was examined in a private ambulance, and the medical report issued on that occasion stated that he had a chronic post-traumatic stress disorder.
17. It would appear that none of the above criminal complaints or their further supplements has been processed by the authorities to date.
2. The ensuing criminal proceedings
18. On 5 August 2008 the High Court found the first, second, third, sixth and seventh applicants guilty of associating for the purposes of anti-constitutional activities and preparing actions against the constitutional order and security of Montenegro. In particular, it was established that in the period between mid 2004 and 9 September 2006 the first and second applicants, with two other co-accused, met with some members of the so-called Kosovo Liberation Army (“KLA”) in the wider area of Podgorica, Kosovo[1], Albania and the USA, and created an association the aim of which was to undermine the constitutional order and security of Montenegro and create within Montenegro a territory inhabited by the Albanian population with special status contrary to the Montenegrin constitutional order. Subsequently, the third, sixth and seventh applicants became members of this organisation. The fourth and fifth applicants were found guilty of illegal possession of weapons and explosives.
19. The first applicant was sentenced to six years’ imprisonment, the second applicant to five years, the third, sixth and seventh applicants to three years each, the fourth applicant to three months, and the fifth applicant to six months’ imprisonment. By virtue of the same judgment a large amount of different weapons, ammunition, and various other objects, such as military clothes, caps, gloves, binoculars, flags with a KLA logo, were confiscated from the first and second applicants, as well as a diary belonging to the first applicant. A certain amount of weapons and explosives were confiscated from the fourth and fifth applicants. All the applicants, save for the third one, were ordered to pay court fees (po osnovu paušala).
20. The judgment was based on the following evidence: statement made by the first applicant to the police, his diary and its translation done by the first applicant at the police station, written confirmation of the search of the first and second applicants’ flats and other premises, minutes of the search, official report on the weapons found, certificate on objects temporarily confiscated from the first and second applicants and relevant photo-documentation, terrain search, weapon, ammunition and explosives found there and relevant photo-documentation, minutes of the search of some of the other co-accuseds’ flats and other premises, statements of some of the other co-accused, evidence obtained through measures of secret surveillance, including transcripts of a number of telephone calls, report on border crossings, statements of three police officers who had conducted the search, a statement of the first applicant’s police-appointed lawyer who was present during the first applicant’s interrogation at the police station, expert witnesses’ opinion, and a search warrant issued by the High Court investigating judge on 8 September 2009.
21. The High Court did not take into account other evidence, such as, inter alia: the statements given by the second, third, fourth and fifth applicants at the police station as these applicants had not been properly advised that they were entitled to use their own language and to have the assistance of an interpreter; the minutes of the search of several other co-accuseds’ flats as the witnesses who had attended the search were related to those whose flats had been searched (wife, son, sister-in-law).
22. The High Court established that the first applicant’s rights had not been breached in the pre-trial proceedings (u pretkrivičnom postupku) and that the search of his flat and other premises had been conducted in accordance with the relevant provisions of the Criminal Procedure Code. In particular, the search warrant was issued by the investigating judge on 8 September 2006 at 13.40, and the search was conducted on 9 September between 6 and 8 a.m. While the search was not attended by two witnesses, this was allowed by a relevant provision of the Criminal Procedure Code, which provided for a search without the witnesses if it was impossible to provide for their presence at once and there was a danger that the relevant action would be postponed (postoji opasnost od odlaganja). The reasons why the search was conducted without witnesses must be noted in the search minutes (moraju se naznačiti u zapisniku). One of the police officers who had conducted the search testified that it had been impossible to find the two witnesses as the search had been conducted early in the morning. According to him, this was not mentioned in the search minutes as the minutes were made on the spot (zapisnik o pretresanju sačinjen na licu mjesta i zbog toga nijesu navedeni razlozi za pretresanje bez prisustva svjedoka). However, the search had been attended by the first applicant himself who had duly signed the minutes and had no objections to them.
23. The High Court further established that the first applicant had been questioned at the police station on 9 September 2009 at 17.00 in the presence of a police-appointed lawyer with whom he had consulted before making a statement. The lawyer testified that the first applicant had been questioned in accordance with the law and that he had not noticed any injuries on him. The first applicant had confirmed during the questioning that he had been writing a diary, and that he could translate it as it was written in Albanian. The lawyer was present during the translation of the diary as well.
24. The sixth and seventh applicants were convicted on the basis of the first applicant’s statement made at the police station and the contents of his diary the two being compatible. In particular, it was established, on the basis of these two pieces of evidence, that the seventh applicant had arrived from the USA to Albania on 30 March 2006, that he had been informed about the plans of the association and had attended a subsequent meeting. In this way, the court concluded, the seventh applicant had manifested his membership of the association and participation in its preparatory work. It was further found, on the basis of the same evidence, that on 1 September 2006 the sixth and seventh applicants had been informed that the war in the relevant part of Montenegro should begin on 10 September 2006, in which way the sixth applicant had manifested his membership of the association, as well as by accepting an invitation to go to the next meeting taking place in Skadar (Albania). On 4 September 2006 several persons, including the sixth and seventh applicants, had met in Skadar and had agreed on how to carry out the planned acts. In particular, the seventh applicant expressed his support, said he had been to Kosovo himself to explore the realisation of the plan (radi izviđanja mogućnosti realizacije plana), and wondered if their plans would affect Kosovo’s independence. The meeting was concluded by another co-accused’s statement that the Kosovo army would enter Montenegro “around Saturday, that is on 9 September 2006, and [that] they want[ed] to do their job”. The High Court concluded that the first applicant’s defence during the pre-trial proceedings was in logical connection with the contents of his diary. This evidence was held to be further supported by a report on their border crossings, which data entirely coincided with the dates and time of border crossings mentioned in the first applicant’s diary and his statement made at the police station. Lastly, both the statement and the diary were further supported by an official police report of 30 November 2006, which confirmed the existence of all the objects and places described in the diary.
25. Finally, the first-instance court did not accept that the criminal offences contained in the indictment were committed in an organised manner as the indictment did not claim that the motive was profit or power, this being one of the mandatory conditions for a criminal offence to fall within the notion of organised crime.
26. All the applicants appealed against the High Court judgment. The first, second, fifth, sixth and seventh applicants’ appeals, contained in the case-file, included a complaint about the torture and ill-treatment, and a lack of an investigation in that respect.
27. On 18 June 2009 the High Court judgment was upheld by the Court of Appeals. In particular, it was held that there had been no procedural violations in the first-instance proceedings and that the first-instance judgment was based on legally valid evidence, including the statement made by the first applicant at the police station, the minutes of the search conducted in his flat and other premises, as well as the evidence obtained by this search, including his diary.
28. The first applicant was considered to have been interrogated in accordance with all the procedural guarantees, as confirmed by his police- appointed lawyer, who had not noticed any injuries on him. The same lawyer had also been present when the first applicant had translated the diary, and had signed the interrogation minutes afterwards.
29. The search of the first applicant’s flat was held to have been conducted in accordance with the law and, therefore, all the evidence obtained thereby was legally valid, including the diary. In particular, the investigating judge had issued the search warrant the day before the search. The search had not been witnessed by two adults as it was impossible to find the witnesses in the early morning hours. No statement to this effect was included in the minutes as they were drafted on the spot. This conclusion was based on the testimony of one of the officers who had conducted the search. As regards the diary, it contained clear and convincing description of the criminal acts undertaken. The contents of the diary was further supported by the first applicant’s defence in the pre-trial proceedings, and was further compatible with the border crossing reports, the evidence obtained through measures of secret surveillance, transcripts of telephone conversations, and the weapons found in caves.
30. The first-instance court had established all the facts, in particular on the basis of the statement the first applicant made in the pre-trial proceedings and his diary. The first applicant changed his statement during the main hearing claiming, in substance, that what he had said during the pre-trial procedure had been extorted by torture. However, this was rebutted by a statement of his police-appointed lawyer, who was present at the time when the statement had been made. The validity of this evidence was not called into question (nije dovedena u pitanje) by any other evidence, but was only further supported thereby. Membership of an association could be manifested in various ways, and the sixth and seventh applicants, in particular, manifested it by taking part in the meetings where the activities for achieving the association’s goal were discussed.
31. The Court of Appeals agreed that the criminal acts for which the accused were convicted had not been committed in an organised manner as the indictment did not allege that their motive was profit or power.
32. On 25 December 2009 the Supreme Court ruled on the first, second, third and fourth applicants’ appeal on points of law (zahtjev za ispitivanje zakonitosti pravosnažne presude). They challenged, inter alia, the conclusion that there had been no time to provide two adults to witness the search of the first applicant’s flat and the composition of the first-instance court. The Supreme Court, in substance, endorsed the reasoning of the High Court and the Court of Appeals. In particular, the composition of the first-instance court was in accordance with the law, as Article 510 of the Criminal Procedure Code explicitly provided that a three-judge bench would try criminal acts of organised crime, and the trial of all the accused was based on an indictment of the Supreme State Prosecutor – Section for Suppression of Organised Crime, Corruption, Terrorism and War Crimes. It contained no reference as to whether the relevant criminal offences belonged to organised crime or not.
33. On 9 July 2010 the third applicant filed a constitutional appeal invoking, inter alia, that the accused had been tortured and ill-treated. These proceedings would appear to be still pending.
3. The sixth applicant’s health
34. On 12 September 2006, during the interrogation before the investigating judge, the sixth applicant’s lawyer stated that the sixth applicant had only had one sandwich in three days and had not had his medical treatment. On 14 June 2007, during the main hearing, the sixth applicant stated, inter alia, that after the arrest he had been provided with his treatment with delay (kasnilo se sa donošenjem ljekova koji su mi bili potrebni). The first applicant’s representative confirmed that the sixth applicant had got his treatment with about ten days delay.
35. The case file contains two medical reports with regard to the sixth applicant, which were issued by a prison doctor on 10 December 2007 and 16 September 2008, respectively.
36. The report issued in December 2007 was largely illegible. The legible part stated that the sixth applicant complained about the pain in his right shoulder and problems in moving it (otežane pokrete). There was a diagnosis of naevus sebaceous (congenital, hairless plaque that typically occurs on the face or scalp).
37. In a statement made to his lawyer on 1 February 2008 the sixth applicant submitted that the report issued in 2007 also contained a recommendation of a dermatologist to have his mole surgically removed, but that it was not urgent, as well as that he should have another check-up in two months, which check-up had never taken place. He also claimed that, contrary to what was in the report, he had not had any physical therapy. The report had been prepared by a doctor with whom he could not communicate as the doctor spoke only his native language, which the applicant could not speak, and the presence of his lawyer, who could have acted as an interpreter, had not been allowed during the examination. The sixth applicant claimed that his health situation was far from regular and referred to the shoulder pain, high blood pressure, cholesterol, permanent headache, sleeplessness, dizziness and total exhaustion. He stated that “numerous appeals” made by him personally, his lawyer and US Embassy personnel, seeking a competent medical examination, remained unanswered. No details with regard to these appeals have been provided in the case file. There is also no evidence that this statement of the sixth applicant has ever been submitted to anyone except his lawyer.
38. The sixth applicant submitted also a letter addressed to the President of the High Court apparently written by a Consular Officer of the US Embassy in Montenegro on 1 February 2008. The letter stated that the sixth applicant, during regular visits by a representative of the US Embassy, consistently complained about his medical problems, in particular about a growth of a mole on his face and a shoulder pain. The letter stated that the US Embassy contacted the sixth applicant’s lawyer asking him to request a medical examination. It further transpires from the letter that the sixth applicant had been visited by a dermatologist on 10 December 2007, but that it was impossible to take a sample of the mole as no appropriate equipment was available in the prison. The letter went on to say that the sixth applicant had been prescribed a treatment for the shoulder pain, but that he had stopped taking it as it had made him nauseous. The submitted copy of the letter bears no logo of the US Embassy, no signature, nor a stamp that it has ever been received by the High Court.
39. The copy of the medical report issued on 16 September 2008 is partly illegible. The legible parts stated that the applicant had pain all over his body with frequent headaches and poor sleep. His blood pressure was 140/85, walking on toes and heels was nearly impossible, and an X-ray of his spine was suggested. Two medications were prescribed together “with the usual therapy he [was] taking”. He was diagnosed with “HTA, lumbago, and suspected kind of (illegible) discus”.
4. Other relevant information
40. Between 11 and 15 September 2006, during the interrogation by the investigating judge, and in the presence of the lawyers of their own choice, the first, second and fifth applicants confirmed that their mother tongue was Albanian, but that they spoke Serbian well and that they did not need an interpreter. It is also clear from the case file that the first applicant is a school teacher of the Serbian language. The other applicants were interrogated with the assistance of an interpreter. The first and second applicants confirmed that they had officially-appointed lawyers in the police station. While the first applicant had consulted his police-appointed lawyer before having made a statement, the second applicant would appear to have talked to his after having made a statement. After having consulted the lawyers of their own choice at the interrogation before the investigating judge the first, second, third and seventh applicants said they would not answer any questions or present their defence.
41. The case file contains minutes of interrogation of four other persons arrested the same day as the applicants, which interrogation took place between 11 and 15 September 2006. While all four of them stated they had been beaten by the police, only two of them had visible injuries. In particular, Z.B. had a visible injury on his forehead above the right eye as well as on a cheekbone, which looked like haematoma. He stated he felt pain in the back; S.I. had visible bruises on both his arms above the elbows up to shoulders. He also claimed his head was put in a sink and water poured over his head (puštali mu vodu na glavu). S.I. stated that he had also been beaten at the court’s building “together with the others who had been brought with him”, without specifying who they were.
42. On 14 May 2008 the State Prosecutor indicted five police officers for torturing and ill-treating the father of the first and second applicants on the occasion of their arrest. These officers would appear to have been convicted later. No further details in this respect have been provided.
B. Relevant domestic law
1. The Criminal Code 2003 (Krivični zakonik; published in the Official Gazette of the Republic of Montenegro - OG RM - nos. 70/03, 13/04, 47/06, 40/08, 25/10 and 32/11)
43. Article 372 paragraph 1 provides that whoever establishes a group or another association with the aim of committing criminal offences defined in Articles 357-362, Articles 364-367 and Article 373 paragraph 3 of this Code, shall be punished by a sanction envisaged for a criminal offence for which the association has been established.
44. Article 365 describes a criminal act of terrorism and provides for a sanction of imprisonment lasting between 3 and 15 years.
45. Article 372 paragraph 3 provides that whoever becomes a member of an association described in paragraph 1 of this Article shall be sanctioned to imprisonment lasting between 6 months and 5 years.
2. The Code on Criminal Procedure 2003 (Zakonik o krivičnom postupku; published in OG RM nos. 71/03, 07/04 and 47/06)
46. Article 12 paragraph 1 provides that a use of force against a person deprived of liberty, and an extortion of confession or any other statement from an accused or another person taking part in the proceedings, is prohibited and punishable. Paragraph 2 provides that a judicial decision cannot be based on the confession or another statement obtained by extortion, torture or inhuman treatment.
47. Article 24 paragraph 1 provides that, unless there is another provision in this Act, a case shall be tried at first instance by a five-judge bench when dealing with criminal offences for which imprisonment of fifteen years or more is provided; and by a three-judge bench when dealing with criminal offences for which the sanction is milder. Paragraph 2 provides that, at second-instance, a case shall be tried by a five-judge bench when the potential sanction is imprisonment of fifteen years or more, and by a three-judge bench when the possible sanction is milder.
48. Article 31 paragraph 6 provides for a single set of proceedings and a single judgment in a case where there are several persons accused of several criminal offences, providing that there is a connection between the offences committed and the same evidence. If a higher court is competent for some of those criminal offences and a lower court for the others, single proceedings can be conducted only before the higher court. The same applies when deciding on which judicial formation within a court is competent to rule on the case at issue.
49. Article 38 (4) provides, inter alia, that a judge cannot perform his duties if he was in charge of the investigation in the same proceedings.
50. Article 39 provides that a judge shall suspend all the actions in a certain case as soon as he discovers that there is one of the reasons for his exemption provided in Article 38(1) – (5) and inform the president of the court who shall assign the case to another judge.
51. Article 40 provides, inter alia, that the exclusion of a judge can be requested by the parties in the proceedings, a defence lawyer (branilac) and an injured party (oštećeni), as well as further details with regard to the said request.
52. Pursuant to Article 43 provisions concerning the exclusion of a judge shall be also accordingly applied to, inter alia, the state prosecutors.
53. Article 156 provides that, upon a request of a detainee and with the approval of an investigating judge, the detainees can be visited by, inter alia, a doctor.
54. Article 158 provides that the president of the competent court shall supervise the execution of detention. The president of the competent court, or another judge designated by him, shall, at least once a month, visit the detainees and inform himself on how they are treated. He shall undertake measures to remove the irregularities observed during his visit. The president of the court and the investigating judge can, at all times, visit all the detainees, talk to them and receive their complaints.
55. Article 319 provides that if, during the main hearing before a three-judge bench, it turns out that the facts on which the indictment is based indicate a criminal offence for which a five-judge bench is competent, the bench shall be supplemented and the main hearing shall start anew (glavni pretres ce početi iznova).
56. Article 376 paragraph 1(1) provides that criminal proceedings rules shall be breached if the composition of the court was irregular or if a judge who did not participate at the main hearing or who was excluded from participating in the ruling by a final decision, took part in pronouncement of the judgment.
57. Article 376 paragraph 1(2) further provides that the rules of criminal proceedings shall be breached if a judge who should have removed himself participated in the main hearing (Article 38 (1)-(5)).
58. Article 388 paragraph 1(a) provides, inter alia, that the second-instance court shall ex officio examine if there have been breaches of criminal proceedings provided in Article 376 paragraph 1.
59. Articles 507-529 regulate proceedings with regard to criminal offences committed in an organised manner.
60. In particular, Article 507 paragraph 3 provides that these provisions shall be applied if there is a reasonable suspicion that the offence committed is the result of organised acting of more than two persons whose aim is to commit serious crimes for the purposes of profit or power (radi sticanja dobiti ili moći).
61. Article 510 provides that criminal acts of organised crime shall be tried by a three-judge bench at first instance, and by a five-judge bench at second instance.
3. The Criminal Sanctions Enforcement Act (Zakon o izvršenju krivičnih sankcija; published in OG RM nos. 25/94, 29/94, 69/03 and 65/04)
62. Article 31 provides, inter alia, that the convict’s medical condition shall be established when he is admitted to the prison.
63. Article 61 provides that force can be used against convicts only when necessary, inter alia, to prevent their absconding, physical attack against an official or another convict, inflicting injuries on another person, self-injuring or causing material damage, as well as to prevent resistance to an official executing a lawful order. The force includes, inter alia, physical force and the use of a baton. Pursuant to Article 181, Article 61 is also applicable in respect of detainees.
4. Detention Rules (Pravilnik o kućnom redu za izdržavanje pritvora; published in Official Gazette of the Socialist Republic of Montenegro no. 10/87)
64. Article 14 provides that a detainee shall be examined by a general practitioner immediately upon having been admitted to the prison. The medical report shall be entered in a detainee’s medical file.
65. Article 21 paragraph 2 provides that a prison doctor shall visit detainees at least once a week and, when needed, suggest adequate measures for removal of any observed irregularities.
66. Article 23 provides that in case of an illness the detainee shall get medical assistance in the prison infirmary. If he needs to be hospitalised he shall be transferred to another prison in which there is a department for hospital treatment. In urgent cases he shall be transferred to the nearest hospital. The body conducting the proceedings against the detainee shall decide on this transfer to another prison, upon the proposal of a prison doctor. In urgent cases, this decision shall be made by a Prison Director who shall immediately inform the body conducting the proceedings.
67. Article 24 provides that, upon a request of a detainee and with the approval of the conducting body and under its surveillance, the detainee can be examined by a doctor of his own choice. This examination is, in principle, conducted in the prison in the presence of a prison doctor. Prior to this examination the detainee shall be examined first by a prison doctor.
68. Article 53 paragraph 3 provides that the prison doctor shall examine the detainee at the moment of his release, which report shall be included in the detainee’s medical file.
5. The Obligations Act 1978 (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia no. 31/93)
69. Articles 154 and 155 set out different grounds for claiming civil compensation, including pecuniary and non-pecuniary damage.
70. Article 172 § 1 provided that a legal entity, which includes the State, was liable for any damage caused by one of “its bodies”.
71. Articles 199 and 200 of the Obligations Act provided, inter alia, that anyone who had suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of personal rights (prava ličnosti) was entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.
6. The Obligations Act 2008 (Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11)
72. This Act entered into force on 15 August 2008 thereby repealing the Obligations Act 1978. Articles 148-149, 166 § 1, and 206-207, however, correspond to Articles 154-155, 172 § 1, and 199-200 of the previous Act.
7. Relevant constitutional provisions
73. Article 9 of the 1992 Constitution provided, inter alia, that Serbian was the language in official use.
74. The 1992 Constitution was repealed by the 2007 Constitution, Article 13 of which provides, inter alia, that the official language is Montenegrin, while Serbian, Bosnian, Albanian and Croatian are also in official use.
COMPLAINTS
All the applicants complain under Article 3 of the Convention about having been tortured and ill-treated between 9 and 15 September 2006, and the lack of an effective investigation in this regard.
The sixth and seventh applicants also complain, under Articles 6 and 14 of the Convention, about having been convicted on the basis of evidence obtained in contravention of Article 3, in particular on the basis of a statement extorted from the first applicant, his diary obtained in an unlawful search and the diary’s subsequent inadequate translation. They also complain about having been convicted at first instance by a bench composed of three judges instead of five.
The sixth applicant complains in addition, under Article 3 of the Convention, about the lack of adequate medical care while in detention.
Lastly, the sixth and seventh applicants complain about having been detained without a criminal charge from 9 September to 7 December 2006; not having been able to examine the first applicant at any stage of the proceedings; judge R.I.’s previous involvement in the proceedings; and the Special Prosecutor’s lack of independence due to her family ties with the Minister of Justice and the Secretary General of Parliament at the time.
QUESTIONS TO THE PARTIES
COMMON QUESTIONS
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was a civil law suit an effective remedy within the meaning of this provision in respect of the applicants’ complaint made under the substantive aspect of Article 3 of the Convention?
2. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (see Bayram and Yildirim v. Turkey (dec.), no. 38587/97, 29 January 2002, and Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002)?
3. Have the applicants been subjected to treatment in breach of Article 3 of the Convention on 9 September 2006 and/or between 9 September 2006 and 15 September 2006 (see Kopylov v. Russia, no. 3933/04, § 157, 29 July 2010, and the authorities cited therein; see, also, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Vladimir Romanov v. Russia, no. 41461/02, § 58, 24 July 2008)? If so, was the use of force necessary in the given circumstances and, if so, was it excessive?
4. Having regard to the procedural protection from ill-treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the investigation in the present cases by the domestic authorities in breach of Article 3 of the Convention?
QUESTIONS AS REGARDS BOTH THE SIXTH AND SEVENTH APPLICANTS
5. Have the sixth and seventh applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was a constitutional appeal an effective remedy in respect of these applicants’ complaint about having been convicted on the basis of evidence obtained in contravention of Article 3? The Government are invited to indicate whether the Constitutional Court has already ruled in respect of any constitutional appeal relating to this issue. Copies of any domestic decisions adopted in response to this remedy concerning this particular issue should also be submitted.
6. Were the sixth and seventh applicants convicted on the basis of the evidence obtained in contravention of Article 3 (see, mutatis mutandis, Gäfgen v. Germany [GC], no. 22978/05, § 166, 1 June 2010)? In particular, was the search of the first applicant’s flat and other premises conducted in accordance with the law in view of the absence of two witnesses, given the time between the moment when the search warrant was issued and the search itself (see, mutatis mutandis, Stanimirović v. Serbia, no. 26088/06, § 50, 18 October 2011, and other authorities cited therein)?
7. Did the sixth and seventh applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, was the first-instance court established by law, in view of the fact that it was composed of a three-judge bench (see, mutatis mutandis, DMD GROUP, a.s. v. Slovakia, no. 19334/03, §§ 58-61, 5 October 2010; and the authorities cited therein)?
QUESTIONS AS REGARDS THE SIXTH APPLICANT ONLY
8. Has the sixth applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was there an effective domestic remedy in respect of the sixth applicant’s complaint given that the enforcement of a detention measure is subject to supervision by the president of the competent court, but that the relevant legislation does not provide for a complaints procedure, either before a court or an administrative authority (see, mutatis mutandis, Đermanović v. Serbia, no. 48497/06, §§ 40-41, 23 February 2010)? Copies of any domestic decisions adopted in response to such a remedy should also be submitted.
9. Was the sixth 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 submit the sixth applicant’s prison medical record.
[1] All reference to Kosovo, whether to the territory, institutions or population, in this draft shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
Full & Egal Universal Law Academy