CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 juillet 2014

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MONTENEGRO   (Application no. 67320/10)         JUDGMENT           STRASBOURG   22 July 2014     FINAL   22/10/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.     In the case of Bulatović v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Işıl Karakaş,   András Sajó,   Nebojša Vučinić,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 1 July 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 67320/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Montenegrin national, Mr Željko Bulatović (“the applicant”), on 15 November 2010. 2.     The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin. 3.     The applicant complained, in particular, about the conditions and length of his detention on remand. He also complained of a lack of medical care while in detention on remand. 4.     On 5 November 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and lives in Podgorica. A.     The criminal proceedings 6.     On 8 May 2001 the applicant murdered X and immediately thereafter left the country. 7.     On 6 March 2002 the applicant, in his absence, was found guilty of murder and sentenced to twenty years in prison. 8.     On 27 June 2002 the applicant was arrested in Spain pursuant to an international arrest warrant ( potjernica ), and placed in custody. 9.     On 14 May 2003 he was extradited to Montenegro. 10 .     On 3 February 2004 the criminal proceedings against the applicant were re-opened ( ponavljanje krivičnog postupka ). 11.     On 10 April 2009 the High Court ( Viši sud ) in Podgorica found the applicant guilty, sentenced him to fourteen years’ imprisonment and ordered him to pay the costs of the proceedings as well as court fees ( na osnovu sudskog paušala ). 12.     On 29 January 2010 the Court of Appeal ( Apelacioni sud ) in Podgorica quashed the judgment and ordered a retrial. 13 .     On 4 October 2010 the High Court found the applicant guilty, sentenced him to fourteen years’ imprisonment, and ordered him to pay the costs of the proceedings and court fees. 14.     On 21 March 2011 the Court of Appeal upheld that decision. It would appear that on 26 April 2011 the decision was served on the applicant and he was transferred to prison. 15.     On 19 September 2011 the Supreme Court ( Vrhovni sud ) in Podgorica dismissed an appeal on points of law ( zahtjev za ispitivanje zakonitosti pravosnažne presude ) lodged by the applicant. 16.     On 25 November 2011 the applicant lodged a constitutional appeal complaining, in substance, about the reasoning of the courts, their assessment of the evidence and their interpretation of the law. He also complained of various irregularities in dealing with his request for review and his action for fair redress (see paragraphs 17-22 below). On 2   November 2012 the applicant withdrew his constitutional appeal and the Constitutional Court terminated the proceedings ( obustavio je postupak ) on 27 November 2012. B.     The applicant’s attempts to have the criminal proceedings expedited 17 .     On 10 November 2009 the applicant lodged a request for review ( kontrolni zahtjev ), complaining that the Court of Appeal had not ruled on his appeal within three months (see paragraph 75 below). 18.     On 11 January 2010, having received no reply to the previous request, the applicant appealed to the Supreme Court. 19.     On 7 July 2010, having still received no reply, the applicant lodged an action for fair redress ( tužba za pravično zadovoljenje ). 20.     On 29 September 2010 the Supreme Court rejected the action on the grounds that the applicant had not lodged a request for review. 21.     On 10 May 2011 the applicant lodged another action for fair redress. 22 .     On 17 June 2011 the Supreme Court ruled that the criminal proceedings had been unreasonably long. Considering that the applicant’s detention required urgent proceedings, but also that it had been a complex case and that the applicant had contributed to the overall length of the proceedings, the court awarded him 2,000 euros (EUR). The applicant’s proposal that that decision be published was refused as the court did not consider it to be a “serious breach” of the right to a trial within a reasonable time. It was also noted that the applicant had indeed submitted a request for review beforehand, which had not been considered, and that his appeal in that regard had never been forwarded by the Court of Appeal to the Supreme Court. 23 .     On 25 July 2011 the applicant lodged a constitutional appeal against that decision, complaining, in particular, about the Supreme Court’s rejection of his first action for fair redress, the conclusion that he had contributed to the overall length of the criminal proceedings, and the amount awarded. He also requested that the Supreme Court’s decision be published. In March 2013, when the Government submitted their observations, the constitutional appeal was still pending. C.     The applicant’s detention 24.     On 6 March 2002 the High Court issued a detention order against the applicant in his absence. 25 .     On 20 April 2004, after the applicant was extradited to Montenegro, the High Court issued a new detention order for fear that he might abscond, especially in view of the fact that he had already been in hiding and had been arrested pursuant to an international warrant. 26.     The detention was further extended by the High Court on 1 June 2004, 26 September 2005, 8 September 2008, 23 December 2008, 27   February 2009 and 10 April 2009. The decisions to extend the detention appear to have been subsequently upheld by the Court of Appeal. 27 .     The decision rendered on 8 September 2008 also took account of the gravity of the criminal offence of which the applicant was accused and the sentence that might be imposed on him. 28 .     In its decision of 10 April 2009 the High Court took account in addition of the applicant’s personal circumstances, considering that his being unemployed and single increased the risk that he might flee. The decision specified that the applicant’s detention could last until a final decision was issued in the criminal proceedings or, at the most, until he had served fourteen years in prison. 29.     The authorities did not consider in any of those decisions the possibility of ensuring the applicant’s presence at trial by the use of other preventive measures. 30.     On 14 January 2010 the applicant lodged a constitutional appeal complaining about the length of his detention. It would appear that he amended this appeal on three occasions thereafter, 1 March 2010, 8   December 2010 and 9 December 2010, enclosing some of the relevant documents, such as his request for review, the subsequent appeal, the action for fair redress, as well as the Supreme Court’s decision thereon. In March 2013, when the Government submitted their observations, the constitutional appeal was still pending. 31.     It would appear that the applicant remained in detention until his conviction became final by the Court of Appeal’s ruling in 2011, after which he was transferred to prison to serve his sentence. D.     Conditions of detention 32.     The parties’ submissions in this regard differed. 33 .     The applicant maintained, in particular, that the cell in which he had been detained had been overcrowded, and that he had lacked drinking water and daily exercise. 34.     More specifically, the cell had measured 25 m 2 and had housed fourteen detainees, sleeping on three-tier beds. The cell had also contained closets, a sanitary facility and a dining table. Apparently, the detainees were given a television set in 2007. 35.     Furthermore, between 2003 and 2007, especially in the summer, there was no running water during the day. The detainees, including the applicant, had to collect water in containers during the night so that there would be enough during the day, for both drinking and cleaning purposes. A well was dug in 2007, but this water was apparently not suitable for drinking as it was dirty. 36 .     Lastly, until 2007 the daily walks lasted for forty minutes instead of the 120 minutes provided for by the relevant law, and were cancelled altogether on Thursdays and Fridays, as well as on rainy days. It would appear that after the prisoners’ strike in 2007 the duration of walks was increased to sixty minutes and that they were reintroduced on Thursdays. There would still appear to be no walks on Fridays. Until 2009 detainees were not allowed outdoors at all on rainy days and sometimes they would not get out of the cell for twenty days. 37.     The Government, for their part, submitted that the applicant had been detained in a cell measuring 28 m 2 with four or five other persons, and only occasionally with nine other detainees. There were general shortages of water supply in the area where the prison was situated and the applicant had two thirty-minute long outdoor walks on a daily basis. They also submitted that the conditions in prison had been significantly improved after the visit of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“the CPT”) in 2008 (see paragraphs 114-118 below). E.     Medical care 38 .     On 14 May 2003, when he was extradited to Montenegro and remanded in custody, the applicant was examined by a prison doctor. On that occasion the applicant claimed that he had no illnesses. In December 2003 he had blood and urine tests. There is no evidence in the case file that he was suffering from any illness at the time. 39 .     In March 2006 the applicant was examined at the clinical centre of Montenegro. The medical report issued at the time is mostly illegible. The legible part states that two months earlier when he was under stress, the applicant had had an abnormal pain in his chest which had not recurred, and that his blood pressure was also high at the time. The doctor recommended a cardiological examination ( holter monitoring ) and a check-up in three months. 40.     Between 15 August 2006 and 26 January 2007 the applicant had four blood tests, the results of which showed that at various times one or two parameters were slightly increased while the remaining parameters were either within the normal range or illegible. There is no evidence in the case file that the applicant underwent the recommended cardiological examination or check-up. 41 .     In March 2011 the applicant was again examined at the clinical centre by a specialist in internal medicine ( internista ). The medical report issued at the time states that the applicant had been having spasms ( stezanje ) behind the breast bone, which had become more frequent and stronger. The prison doctor recommended holter monitoring by a cardiologist and specified that the applicant’s condition could worsen if the tests were delayed. 42 .     Between 22 March and 4 April 2011 the applicant was examined by a cardiologist (holter, electrocardiogram and ergometric tests). The results showed that the applicant’s left heart chamber was slightly enlarged, with hypertrophic walls. There was also a grade I diastolic dysfunction. 43.     On various dates between February 2005 and May 2011 the applicant was examined several times by a dermatologist, a urologist, a physiatrist and a surgeon, and his abdomen and spine were x-rayed. He was prescribed the relevant treatment where needed. F.     Other relevant facts 44.     On 7 December 2006 the Ombudsman ( Zaštitnik ljudskih prava i sloboda ) lodged an application with the Constitutional Court for an assessment of the constitutionality of Article 572 of the Criminal Procedure Code 2003 (see paragraph 70 below). On 3 July 2008 the Constitutional Court terminated the proceedings ( obustavio postupak ) as a new Constitution had been adopted in the meantime, whereas the Ombudsman’s request related to the Constitution that was no longer in force. 45.     On 12 September 2008 several detainees, including the applicant, wrote to the President of the Supreme Court complaining about the length of their detention. 46.     It would appear that in 2008 and 2010 two amnesties were granted to prisoners who had been convicted before those dates. On 6 June 2011 the Court of First Instance ( Osnovni sud ) in Podgorica dismissed the applicant’s request that one of those amnesties be granted to him as well. On 30 June 2011 the High Court upheld that decision. 47.     On various dates in 2009 the applicant complained to different international organisations represented in Montenegro, as well as to the Montenegrin Ombudsman, about the length of his detention and of the criminal proceedings. Some of the organisations apparently did not reply at all and others replied that they had no competence to deal with individual cases. The Court of Appeal, in response to an enquiry by the Ombudsman, replied that all realistic measures would be undertaken to expedite the proceedings at issue, although it would be difficult because there had been an influx of urgent and complex cases. 48.     On 14 January 2010, as well as lodging a constitutional appeal in respect of the length of his detention, the applicant also applied for an assessment of the constitutionality of Article 572 of the Criminal Procedure Code 2003. On 10 May 2012 the Constitutional Court rejected ( odbacuje se ) the request, as the Code had ceased to be in force as of 1 September 2011 (see paragraph 76 below) and thus there was no legal ground to examine if the above-mentioned provision had been in accordance with the Constitution while it had been in force. 49.     On 22 November 2011 the applicant appears to have requested the State Prosecutor ( Osnovno državno tužilaštvo ) to investigate some of the employees of the Court of Appeal responsible for not having forwarded his request for review to the Supreme Court. On 21 February 2012 the Deputy State Prosecutor ( zamjenik osnovnog državnog tužioca ) informed the applicant that she would not pursue any criminal prosecution ex officio in this regard. The applicant could, however, take on the prosecution as a subsidiary prosecutor. There is no evidence in the case file as to whether the applicant did so. 50.     On 22 February 2012 the applicant’s sentence was reduced by six months following an amnesty ( pomilovanje ) granted to him by the President. 51.     On 19 August 2013 the applicant’s sentence was further reduced in view of an amnesty provided for by the new legislation (see paragraph 81 below). On 27 August 2013 that decision became final and the applicant was released. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of the Republic of Montenegro 1992 ( Ustav Republike Crne Gore , published in the Official Gazette of the Republic of Montenegro - the OG RM - no. 48/92) 52.     Article 23 of the Constitution contained details on detention. In particular, paragraph 3 provided that the duration of detention must be as short as possible ( mora biti svedeno na najkraće vrijeme ). B.     Constitution of Montenegro 2007 ( Ustav Crne Gore , published in the Official Gazette of Montenegro - the OGM - no. 01/07) 53.     Article 30 of this Constitution corresponds to Article 23 of the 1992 Constitution. 54.     Article 32 provides that everyone is entitled to a fair and public trial within a reasonable time by an independent and impartial tribunal established by law. 55.     Article 149 provides that the Constitutional Court will rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 56.     The Constitution entered into force on 22 October 2007. C.     Montenegro Constitutional Court Act ( Zakon o Ustavnom sudu Crne Gore , published in the OGM no. 64/08) 57 .     Section 48 of the Act provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 58.     Sections 49 to 59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it will quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision. 59.     This Act entered into force in November 2008. D.     Criminal Procedure Act 1977 ( Zakon o krivičnom postupku , published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/77, 14/85, 74/87, 57/89 and 3/90, and in the Official Gazette of the Federal Republic of Yugoslavia nos. 27/92 and 24/94) 60.     Section 182 of the Act provided that the defendant’s participation in the criminal proceedings could be secured by means of sending summonses, his forcible appearance in court, a promise on the part of the defendant that he would not leave his residence ( boravište ), as well as through the imposition of bail or detention. The competent court would not apply a more severe measure in order to secure the defendant’s presence 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. 61.     Sections 183 to 200 set out details as to each of those measures. 62.     Section 190(2), in particular, provided that the detention period would be as short as possible and that all the bodies involved in the criminal proceedings would act with particular urgency if the accused was in detention. 63.     Section 197 provided for limitations on detention before any charges had been brought. No such limitations were envisaged for the period after an individual had been indicted. E.     Criminal Procedure Code 2003 ( Zakonik o krivičnom postupku , published in the OG RM nos. 71/03, 07/04, and 47/06) 64.     Article 16 provided, inter alia , for an obligation on the part of the courts to conduct proceedings without delay, and to keep the duration of detention to the shortest time needed. 65.     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 be ceased 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. 66.     Articles 137 to 153 set out details as to each of these measures. 67.     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. 68.     Article 148 § 1 (1) provided that detention could be ordered if there was a reasonable suspicion that the accused had committed a criminal offence, and there were circumstances indicating that he or she might abscond. 69.     Article 152 provided, inter alia , that the detention could last for two years at most after an individual had been indicted. If the accused did not receive a first-instance judgment within two years, the detention would be repealed and the accused released. 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. 70 .     Article 572 provided that the limitations on detention prescribed by section 152 of this Code were applicable only to proceedings instituted after the Code had entered into force. 71 .     Article 155 § 2 provided that every detainee would be able to walk outdoors ( obezbjedi[će] se kretanje ) for at least two hours every day. 72.     Article 156 provided that, following a request by a detainee and with the approval of an investigating judge, detainees could be visited by, inter alios , a doctor. 73 .     Article 158 provided that the president of the competent court would supervise the execution of detention. The president of the competent court, or another judge designated by him, would, at least once a month, visit detainees and enquire as to how they were being treated. He would take measures to remove any irregularities observed during his visit. The president of the court and the investigating judge could, at all times, visit all detainees, talk to them and receive their complaints. 74.     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. 75 .     Under Article 401 § 2 the second-instance court was obliged to deliver its decision, together with the entire case file, to the first-instance court within three months at the latest if the accused was in detention. 76 .     This Code entered into force on 6 April 2004. The previous Act was thereby repealed, except for the chapters relating to international legal assistance and the extradition of accused and convicted persons, which is irrelevant in the present case. F.     Criminal Procedure Code 2009 ( Zakonik o krivičnom postupku , published in the OGM nos. 570/9 and 49/10) 77.     The Code entered into force on 1 September 2011, thus repealing the previous Code, except for the provisions of Chapter XXIX, which is irrelevant in the present case. G.     Right to a Trial within a Reasonable Time Act ( Zakon o zaštiti prava na suđenje u razumnom roku , published in the OGM no.   11/07) 78.     This Act provides, under certain circumstances, for the possibility to have lengthy proceedings expedited by means of a request for review ( kontrolni zahtjev ), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress ( tužba za pravično zadovoljenje ). 79.     Section 2, in particular, provides that in the event of a violation of the right to a trial within a reasonable time, the right to court protection applies to the parties and interveners in civil proceedings, parties and interested persons in administrative disputes, as well as the accused and the injured party in criminal proceedings. 80.     Section 44 provides, inter alia , for retroactive application of the Act to all proceedings from 3 March 2004, taking into account the duration of the proceedings before that date. H.     Amnesty of Persons Convicted of Criminal Offences provided for in the Legislation of Montenegro and of Persons Convicted by a Foreign Judgment enforced in Montenegro Act ( Zakon o amnestiji lica osuđenih za krivična djela propisana zakonima Crne Gore i lica osuđenih stranom krivičnom presudom koja se izvršava u Crnoj Gori , published in the OGM no. 39/13). 81 .     This Act provides, inter alia , for the granting of an amnesty to persons convicted of murder by means of a final judgment before the date on which the Act entered into force, and for the reduction of their sanction by 25%. The Act entered into force on 15 August 2013. I.     Detention Rules ( Pravilnik o kućnom redu za izdržavanje pritvora , published in the Official Gazette of the Socialist Republic of Montenegro no. 10/87) 82.     Rule 14 provides that a detainee will be examined by a general practitioner immediately on admission to prison. A medical report will be included in the detainee’s medical file. 83.     Rule 21(2) provides that a prison doctor will visit detainees at least once a week and, where necessary, suggest adequate measures for the removal of any irregularities observed. 84.     Rule 23 provides that in the event of illness the detainee will receive medical treatment in the prison infirmary. If he needs to be hospitalised he will be transferred to a prison with a hospital department. In urgent cases he will be transferred to the nearest hospital. The body conducting the proceedings against the detainee will decide on the transfer to another prison, following a proposal by the prison doctor. In urgent cases, this decision will be made by a prison director, who must immediately inform the body conducting the proceedings. 85.     Rule 24 provides that, if a detainee so requests and with the approval of the conducting body and under its surveillance, the detainee may be examined by a doctor of his own choice. Such an examination is, in principle, conducted in the prison in the presence of the prison doctor. Prior to the examination the detainee must first be examined by the prison doctor. 86.     Rule 53(3) provides that the prison doctor will examine the detainee at the time of his release, and the medical report will be included in the detainee’s medical file. J.     Constitutional Court’s practice following constitutional appeals 87 .     The Government submitted in their observations that between 1   January 2008 and 31 December 2012 the Constitutional Court received 2,171 constitutional appeals, on which 1,391 decisions were rendered: 32   appeals were upheld, 727 appeals were rejected on the merits ( odbijene ), 617 were rejected on procedural grounds ( odbačene ) and in 5 cases the proceedings were terminated ( obustavljeni ). III.     RELEVANT INTERNATIONAL DOCUMENTS A.     Report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment in respect of Montenegro 88.     Between 15 and 22 September 2008 the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“the CPT”) visited Montenegro. [1] 89 .     During its visit the CPT noted, inter alia , “the alarming level of overcrowding” in the remand prison in Podgorica. In particular, a cell measuring 28 m² with fifteen sleeping places (provided on five three-tier beds) was holding twenty-one male prisoners. In many cells prisoners had to sleep on mattresses or just folded blankets placed directly on the floor. The majority of the cells were stuffy and humid, despite the presence of large windows and air conditioners. Remand prisoners remained for twenty ‑ three hours or more a day inside their cells, in some cases for several years. The only out-of-cell activity available to them was outdoor exercise taken in two thirty-minute periods, which was apparently not available on Fridays (see paragraphs 55 and 57 of the CPT report). 90.     The situation in terms of health-care staff resources was far from satisfactory. General health care was provided by a sole doctor who was on call continuously, which could lead to long delays in receiving health care and affect its quality (see paragraph 62 of the CPT report). 91.     There was no systematic approach to the handling of complaints by prisoners, nor was there any register of complaints. The prisoners’ complaints and the reactions to them were kept in the personal files of the inmates concerned, some of the complaints having remained without a written answer (see paragraph 81 of the CPT report). 92 .     The CPT noted that prison establishments were visited by investigating judges, the Ombudsman and NGOs, but that such visits appeared to be rather infrequent and limited in scope as the visitors did not have any direct contact with prisoners (see paragraph 82 of the CPT report). 93.     The CPT recommended that the Montenegrin authorities take a number of steps with regard to the above issues, one of them being a significant reduction of the occupancy level in the cells at the Remand Prison in Podgorica, the objective being to comply with the standard of 4 m² of living space per prisoner (see paragraphs 58, 64, 81 and 82 of the CPT report). 94.     In February 2012 the CPT visited Montenegro again. The report prepared after that visit is not yet available. B.     European Commission Reports 95 .     The issue of prison conditions was also raised in the context of the process of Montenegro’s accession to the European Union.   In particular, in its Progress Reports of 2011 and 2012, the European Commission stated that although the prison conditions were improving, they were still not in line with international standards, overcrowding remaining a concern. [2] THE LAW I.     ALLEGED VIOLATION OF ARTICLES 3 AND 5 § 3 OF THE CONVENTION 96.     Relying on Articles 3 and 5 § 3 of the Convention, the applicant complained about the conditions of detention on remand. He also complained of a lack of medical care while in detention, as well as about the length of his detention. 97.     The said Articles read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 5 § 3 “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A.     Admissibility 1.     Six months 98.     The Government maintained that the applicant’s submissions sent to the Court after the initial application had been lodged should be rejected as outside the six-month time-limit. 99.     The applicant made no comment in that regard. 100.     The Court has already held that multiple, consecutive detention periods should be regarded as a whole, and that the six-month period should only start to run from the end of the last period of pre-trial custody (see Solmaz v. Turkey , no. 27561/02, § 36, 16 January 2007). It is noted in this regard that the applicant’s pre-trial detention ended on 4 October 2010, when he was convicted by the High Court (see paragraph 13 above). It is clear from the case file that the applicant’s complaint about the length of detention was introduced on 15 November 2010 and that his complaints of poor conditions of detention and lack of medical care were submitted on 18   March 2011. It follows that those complaints were introduced within six months and cannot therefore be rejected as having been introduced outside the time-limit fixed by Article 35 of the Convention. 2.     Non-exhaustion a.     Arguments of the parties 101.     The Government maintained that the execution of detention was supervised by the president of the court (see paragraph 73 above), who reported in that regard to the Supreme Court and the Ministry of Justice. In particular, he or she could visit all detainees at any time, including following a request on the part of detainees, when they could complain about any aspect of the execution of their detention. The president of the court, or a judge designated by him or her, had a duty to take all necessary measures to remove any irregularities thus observed. 102.     The Government further maintained that the applicant had failed to make use properly of a constitutional appeal, which was an effective domestic remedy. They submitted statistical data in that regard (see paragraph 87 above). The Government averred that in deciding on constitutional appeals, the Constitutional Court also decided on the rights which the applicant had invoked in his application. They did not submit any such decision or any other details in this connection. 103.     The applicant, for his part, submitted that he had lodged constitutional appeals, two of which were still pending, which clearly meant that they were not a priority. Furthermore, deciding on his constitutional appeal in respect of his detention no longer made any sense, given that his conviction had become final in the meantime and his detention in the remand prison had thus ceased. He also maintained that in nine years he had witnessed only one delegation of the Supreme Court judges visiting the remand prison. b.     Relevant principles 104.     The Court reiterates that, according to its established case-law, the purpose of the domestic remedies rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court. However, the only remedies to be exhausted are those which are effective. 105.     It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey , 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV). 106.     The Court notes that the application of this rule must make due allowance for the context. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others , cited above, § 69). c.     The Court’s assessment i.     Supervision of detention 107.     The Court observes that the relevant legislation indeed provides for supervision of the execution of detention by the president of the competent court.   However, the relevant legislation does not provide for a complaints procedure – before a court or an administrative authority – which would satisfy the effectiveness requirement in respect of the applicant’s complaints (see paragraph 73 above; see also, mutatis mutandis, Đermanović v. Serbia , no. 48497/06, § 41, 23 February 2010). In addition, the CPT also noted the lack of a systematic approach to the handling of prisoners’ complaints. It also observed that visits to prison establishments by judges, the Ombudsman and NGOs were rather infrequent and limited in scope (see paragraph 92 above). 108.     In view of the above the Court considers that the supervision of detention by the president of the competent court cannot be considered an effective domestic remedy in this respect. The Government’s objection in this regard must therefore be dismissed. ii.     Constitutional appeal 109.     As regards the applicant’s complaint about the conditions of detention and of a lack of medical care, the Court observes that pursuant to section 48 of the Constitutional Court Act of Montenegro, a constitutional appeal can only be lodged against an individual decision concerning one’s human rights and freedoms (see paragraph 57 above). Taking into account that the Government have presented no case-law to the contrary, the Court considers that the constitutional appeal to the Constitutional Court of Montenegro cannot be considered an available remedy in cases of conditions of detention and lack of medical care, given that there was no “individual decision” concerning the applicant’s rights in this respect against which such an appeal could have been lodged (see, mutatis mutandis , Mijušković v. Montenegro , no. 49337/07, §§ 73-74, 21 September 2010). 110.     As regards the applicant’s complaint about the length of the detention, the Court notes that he did lodge a constitutional appeal in this regard on 14 January 2010, but that the appeal was still pending more than three years later (see paragraph 23 above).   As the applicant’s detention ceased on 4 October 2010, and taking into account that the proceedings upon his constitutional appeal were still pending at least until March 2013, the Court considers that a subsequent examination of his constitutional appeal by the Constitutional Court of Montenegro cannot be considered an effective domestic remedy. 111.     The Government’s objection must therefore be dismissed. 3.     The Court’s conclusion 112.     The Court notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     Article 3 of the Convention a.     Conditions of detention i.     The parties’ submissions α.     The applicant 113.     The applicant complained about the conditions of his detention. He maintained, in particular, that the cell in which he had been detained had been overcrowded, and that he had lacked drinking water and daily exercise (see paragraphs 33-36 above). He submitted that this had been witnessed and recorded in 2008 by a CPT delegation which had visited, inter alia , his cell and to which he and his cellmates had complained. All the improvements noted by the Government had taken place after the CPT’s visit, and were irrelevant to his case. β.     The Government 114 .     The Government maintained that the cell in which the applicant had been detained had measured 28 m 2 . Depending on the overall number of detainees at the time, there had usually been five or six people detained in the cell. Only during one short period of time had ten detainees been held in the cell. They further submitted that the applicant had had outdoor walks for thirty minutes twice a day, in the mornings and in the evenings, and that a shelter had been built over the exercise area. As of 2007 the president of the High Court had allowed the applicant to have weights in the cell. 115.     The Government averred that in the summer of 2003 and 2004 there had been occasional shortages of water supply in general in the entire area where the Podgorica Prison is situated. However, they had lasted for several hours only and had not occurred on a daily basis. As of 2007 the problem had been resolved by building two wells within the prison, the water from which was both chemically and bacteriologically safe for use. 116.     The Government further submitted that after the CPT’s visit in 2008 the prison administration had taken a series of measures aimed at improving prison conditions, including in the remand prison. The most significant improvement was the reduction of inmates: at the time of the CPT visit in 2008 there had been 568 detainees, while in March 2013 there were 295. Furthermore, the remand prison was refurbished in the course of 2009 and 2010 by removing the infirmary and certain equipment, thereby creating seven new cells. Refurbishment of the remand prison continued at the end of 2012, and by March 2013 the first and second floors had been refurbished as well as forty-five cells on the ground floor. The refurbishment involved changing the electricity, sewage and water supply installations. 117.     Most of the prison premises were also refurbished and adapted with the aim of resolving the problem of overcrowding, including the wing for short-term prisoners. Other measures included: refurbishment of the kitchen; renovation of sports rooms and outdoor sports grounds; increase in the number of employees, including in the medical service, and their training; preparation of a strategy aimed at preventing violence amongst persons deprived of their liberty; setting up a team for mediation and peaceful resolution of disputes amongst the persons deprived of their liberty; as well as the adoption of a new Criminal Procedure Code and new Detention Rules. There were also plans to build a wing for long-term prisoners, a prison hospital, and a structure for religious purposes. 118 .   The detainees could also complain to the Ombudsman by means of boxes installed in all the pavilions of the prison, which could be opened only by the Ombudsman’s Office staff. ii.     The Court’s assessment 119.     The Court has already held that severe overcrowding raises in itself an issue under Article 3 of the Convention (see Kadiķis v. Latvia (no. 2) , no. 62393/00, § 52, 4 May 2006). In particular, Article 3 was breached in a case where an applicant had been detained for almost nine months in extremely overcrowded conditions (10 m 2 for four inmates) with little access to daylight, limited availability of running water, especially during the night, and strong smells from the toilet, and with insufficient and poor quality food and inadequate bed linen (see Modarca v. Moldova , no. 14437/05, §§ 60-69, 10 May 2007). 120.     The Court reiterates that Article 3 requires the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI, and Melnītis v. Latvia , no. 30779/05, § 69, 28 February 2012). 121.     Turning to the present case, the Court notes the applicant’s submissions that the cell in which he had been detained, and which had also contained closets, a sanitary facility and a dining table, had measured 25 m 2 and had housed fourteen detainees, sleeping on three-tier beds. 122.     The Court observes that these submissions are supported by the CPT, which observed in its report “the alarming level of overcrowding” in the remand prison at the relevant time. In particular, a cell measuring 28 m² with fifteen sleeping places was holding twenty-one male prisoners, which fell well below the 4 m 2 per person recommended by the CPT (see paragraph 58 of the CPT report). The majority of the cells were stuffy and humid, despite the presence of large windows and air conditioners. Remand prisoners remained inside their cells for twenty-three hours or more a day, in some cases for several years (see paragraph 89 above and the relevant paragraphs of the CPT report cited therein). 123.     In the light of the CPT’s observations made during its visit to the remand prison and especially in view of the conditions of overcrowding observed by the CPT, the Court finds unconvincing the Government’s submission that the applicant was only once and for a short period of time detained with more than nine other people in a cell measuring 28 m 2 . They failed, inter alia , to say exactly when that happened and how long it lasted. The Court notes that even in such conditions the applicant would have had 2.8 m 2 for himself, which in itself is sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention (see, for example, Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, § 148, 10   January 2012, and Torreggiani and Others v. Italy , nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 68, 8   January 2013). 124.     The Court, however, observes in addition the Government’s acknowledgment that the applicant had been allowed two thirty-minute walks per day, as noted also by the CPT, whereas the relevant legislation provided for at least two hours’ exercise (see paragraph 71 above). They also admitted the shortages of water, although apparently only occasional. The parties’ submissions differ as to whether the well built in 2007 resolved that issue. 125.     It is noted that the prison administration t