CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 novembre 2015

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MONTENEGRO   (Applications nos. 1451/10, 7260/10 and 7382/10)                 JUDGMENT     STRASBOURG   24 November 2015       FINAL   02/05/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Siništaj and others v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   Nebojša Vučinić,   Julia Laffranque,   Valeriu Griţco,   Ksenija Turković,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 3 November 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos.   1451/10, 7260/10 and 7382/10) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Albanian nationals, Mr Anton Siništaj (“the first applicant”) and Mr Viktor Siništaj (“the second applicant”) on 29   December   2009, three Montenegrin nationals, Mr Pjetar Dedvukaj (“the third applicant”), Mr Djon Dedvuković (“the fourth applicant”), and Mr   Nikola Ljekočević (“the fifth applicant”) on 31 January 2010, and two US nationals of Albanian origin, Mr Kola Dedvukaj (“the sixth applicant”) and Mr Rok Dedvukaj (“the seventh applicant”) on 26 January 2010, respectively. 2.     The first and second applicants were represented by Mr R. Prelević, the third, fourth and fifth applicants were represented by Mr K. Camaj, both lawyers practising in Podgorica, and the sixth and seventh applicants were represented by Mr S. Powles, a lawyer practising in London. The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pažin. 3.     The applicants complained, in particular, that they had been tortured and ill-treated between 9 and 15 September 2006 and that there had been no effective investigation in that regard. The sixth and seventh applicants also complained that they had been convicted on the basis of a statement extorted from the first applicant, his diary obtained in an unlawful search and a subsequent inadequate translation of the diary. They also complained about having been convicted at first instance by a bench composed of three judges instead of five. In addition, the sixth applicant alleged a lack of medical care while in detention. 4.     On 29 May 2012 the applications were communicated to the Government. 5.     Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of their right to intervene in the present case, the Albanian Government did not state any wish to do so. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants were born in 1959, 1964, 1968, 1946, 1980, 1948, and 1958 respectively. The first, second, fourth and fifth applicants live in Podgorica (Montenegro), the third applicant lives in Windsor (Canada), the sixth applicant lives in Farmington Hills (USA) and the seventh applicant lives in Troy (USA). 7.     The facts of the cases as submitted by the parties may be summarised as follows. A.     The alleged ill-treatment and subsequent criminal complaints 8.     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 purpose 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 ). 9.     The applicants maintain that as of the moment of their arrest and during the next few days, during police detention as well as when being taken to the investigating judge, they were ill-treated with the aim of extorting statements. In particular, they were beaten, deprived of food, verbally abused, including on the basis of their ethnic origin, and threatened by police officers. 10.     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 ) on 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 ), and a haematoma on the left ankle as well as on the outside part of the left thigh, the 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 scratches on his left elbow and left knee, and a haematoma on the left part of his back above the hip, and complained that his ribs hurt and that he could barely move and breathe. 11.     On 12 September 2006 a prison doctor examined the third and sixth applicants. He noted in a medical report that the third applicant had a 5 cm long scratch on top of his head, a dark blue haematoma on the left cheekbone measuring 4x0.3 cm, a dark blue haematoma stretching from his left nipple to his armpit measuring 25x3 cm and a large hematoma above the left elbow. The doctor noted that there were no visible injuries on the sixth applicant’s body. 12.     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. 13.     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. 14.     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 had 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 those occasions. 15.     It would appear that on 28 October 2006 the third applicant lodged a criminal complaint with the investigating judge against D.R. and several other unidentified police officers. No copy of this complaint has been provided. 16.     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 and with family members of some of the arrested persons, apparently including the father of the first applicant as well as the 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 all unlawful 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 torture and that their statements to that effect had been noted 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 the 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 had 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 establishing the involved officers’ responsibility. However, it was decided that all the relevant documents should be submitted to the State Prosecutor for further consideration. 17.     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. 18.     On 30 October 2007 the first applicant submitted to the State Prosecutor ( Osnovni državni tužilac ) the name of M.L., a police officer who had been on the same shift as the officer who had allegedly ill-treated him on 9 September 2006 and who therefore presumably knew the name of that officer. 19.     On 14 January 2008 the first and second applicants urged the State Prosecution Department ( Osnovno državno tužilaštvo ) in Podgorica to act upon their criminal complaint. The first applicant also submitted the number of the police badge of one of the officers who allegedly had boasted in front of another detainee of having personally beaten the first applicant. 20.     On 30 May 2008 the third applicant submitted to the Supreme State Prosecutor the name of one of the officers who had been 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 had been involved in his arrest as well as to establish the treatment meted out to him during police detention. 21.     On 16 June 2008 the second applicant urged the State Prosecution Department to deal with his complaints. He also submitted the names of some of the police and prison officers who had allegedly ill-treated the applicants on 9, 11 and 12 September 2006. He reiterated that there had been other officers and special unit members who had ill-treated them, who were still unidentified. 22.     On 25 September 2008 a prison doctor examined the seventh applicant and noted in a medical report that he had reported pain in his spine going back ten years, which pain had become 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 due to bad handwriting. 23.     The fourth applicant submitted to the Court a medical report issued by a private hospital in Podgorica on 9 June 2010. During this medical examination the fourth applicant stated, inter alia , that he had been beaten by the police in 2006, but that he had not consulted a doctor about that. The medical report stated, inter alia , that he had an old double fracture of the fourth rib, as well as an old fracture of the right clavicle ( klavikula ). The doctor had diagnosed high blood pressure and prescribed treatment for him. 24.     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. 25.     It would appear that none of the above criminal complaints or their further supplements has been processed by the authorities to date. 26.     The applicants did not lodge a compensation claim with regard to the alleged ill-treatment. B.     The ensuing criminal proceedings 1.     The judgment of the High Court 27.     On 5 August 2008 the High Court, in a chamber composed of three judges, 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, had 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 with special status, inhabited by persons of Albanian ethnicity, contrary to the Montenegrin constitutional order. Subsequently, the third, sixth and seventh applicants had become members of this organisation. The fourth and fifth applicants were found guilty of illegal possession of weapons and explosives. 28.     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. By virtue of the same judgment a large variety of weapons, ammunition, and various other objects, such as military clothes, caps, gloves, binoculars, and flags with the KLA logo, were confiscated from the first and second applicants, as well as a diary belonging to the first applicant. A certain number of weapons and some 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 ). 29.     The judgment was based on the following evidence: the 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 searches, an official report on the weapons found, an official receipt on objects seized from the first and second applicants and relevant photo-documentation, terrain search, including in caves, weapons, ammunition and explosives found there and relevant photo-documentation, minutes of the searches 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, reports on border crossings, the statements of three police officers who had conducted the searches, a statement of the first applicant’s police-appointed lawyer who was present during the first applicant’s interrogation at the police station, the opinion of expert witnesses and a search warrant issued by the High Court investigating judge on 8   September   2009. 30.     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; and the minutes of the searches of several other co-accuseds’ flats, as the witnesses who had attended the searches were related to those whose flats had been searched (wife, son, sister-in-law). 31.     The High Court considered 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 had been issued by the investigating judge on 8 September 2006 at 1.40 p.m., and the search had been conducted on 9   September between 6 and 8 a.m. While the search had not been attended by two witnesses, this was allowed by a relevant provision of the Criminal Procedure Code, which provided for a search without witnesses if it was impossible to secure the presence of any at once and there was a danger that the relevant action would be postponed ( postoji opasnost od odlaganja ). The reasons why the search had been conducted without witnesses had to 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 two witnesses at the time as the search had been conducted early in the morning. According to him, this was not mentioned in the search minutes as the minutes had been 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. 32.     The High Court further established that the first applicant had been questioned at the police station on 9 September 2009 at 5 p.m. 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. 33.     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 in 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 (Shkodër, 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 had 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 found to be further supported by a report on their border crossings, which data entirely coincided with the dates and times 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. 34.     Finally, the first-instance court did not accept that the criminal offences contained in the indictment had been 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. 2.     The judgment of the Court of Appeals 35.     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. 36.     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 that search, including his diary. 37.     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. 38.     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 any witnesses in the early morning hours. No statement to this effect was included in the minutes as they had been 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 a clear and convincing description of the criminal acts undertaken. The contents of the diary were further supported by the first applicant’s defence in the pre-trial proceedings, and were further compatible with the border crossing reports, the evidence obtained through measures of secret surveillance, transcripts of telephone conversations, and the weapons found on the terrain (in caves). 39.     The first-instance court had established all the facts, in particular on the basis of the statement the first applicant had made in the pre-trial proceedings and his diary. The first applicant had admittedly 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 had been 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 actually further supported thereby. Membership of an association could be manifested in various ways, and the sixth and seventh applicants, in particular, had manifested it by taking part in the meetings where the activities for achieving the association’s goal were discussed. 40.     The Court of Appeals agreed that the criminal acts of 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. 41.     This decision was served on the applicants on 30 July 2009 at the earliest. 3.     Proceedings in the Supreme Court 42.     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 find 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. The fifth, sixth and seventh applicants did not lodge an appeal on points of law. 4.     Proceedings in the Constitutional Court 43.     Between 26 March and 24 May 2010 the first, second, third and fourth applicants lodged constitutional appeals with the Constitutional Court. The third and fourth applicants complained, inter alia , about torture, inhuman and degrading treatment. On 23 July 2014 the Constitutional Court dismissed the constitutional appeal considering, in particular, that the complaint about torture, inhuman and degrading treatment was unsubstantiated given that the applicants had failed to submit any evidence in that regard. The fifth, sixth and the seventh applicants would not appear to have lodged a constitutional appeal. C.     The sixth applicant’s health 44.     The sixth applicant submitted two medical reports, issued by a prison doctor on 10 December 2007 and 16 September 2008, respectively. 45.     The report issued in December 2007 is largely illegible. The legible part states that the sixth applicant complained about pain in his right shoulder and problems in moving it ( otežane pokrete ). There was a diagnosis of naevus sebaceus , i.e. a mole on a sebaceous gland. 46.     The copy of the medical report issued on 16 September 2008 is partly illegible. The legible parts state 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 it was recommended that an X-ray of the spine be done. Two medications were prescribed together “with the usual treatment he [was] taking”. He was diagnosed with “HTA, lumbago, and suspected kind of (illegible) discus”. 47.     The Government submitted the entire medical file of the sixth applicant. While part of the medical reports is illegible, from the legible part transpires the following. 48.     On 12 September 2006, when he was remanded in custody, the sixth applicant was examined by a prison doctor. On that occasion the sixth applicant claimed that he had been beaten and that he had high cholesterol. The doctor noted that there were no visible injuries on the sixth applicant’s body, and that he already had the treatment prescribed for high cholesterol. 49.     Between 2 October 2006 and 24 December 2008 the applicant was examined 35 times in total: twice in 2006, 15 times in 2007 and 18 times in 2008. 50.     During the examinations in 2006 the applicant complained about pain in his right shoulder and in general in his arms and joints. He was diagnosed with chronic rheumatism and sinusitis, and the necessary treatment was prescribed. Both times his blood pressure was optimal, and his heart, lungs and other organs were free of any illness. 51.     In 2007 and 2008 the sixth applicant was examined by a number of specialists including a dermatologist, a psychiatrist, a physiatrist, and a specialist in internal medicine, who all prescribed the necessary treatments. He also had a number of tests done, such as laboratory blood analysis, five ultra-sounds of the kidneys and abdomen, ECG, and an X-ray of the upper part of the spine and three X-rays of the right shoulder, and his blood pressure was checked on various occasions. 52.     The examinations showed that the sixth applicant had slightly increased triglycerides and high cholesterol and that he had been under treatment for high blood pressure and high cholesterol for five years already; he had an ongoing ossification in his right shoulder, which was stated to be usual for his age, as well as in his neck; he also had a cyst in the right kidney, and the mole on the sebaceous gland for which the treatment was surgery but not urgently required. The medical analysis of his liver, spleen, and left kidney were fine. D.     Other relevant information 53.     Between 11 and 15 September 2006, during the interrogation by the investigating judge, and in the presence of 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 in Montenegro. 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 spoken with 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. 54.     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. On 21 October 2010, after a remittal, the defendants were acquitted, which judgment was upheld by the High Court on 18 May 2011. On 14 February 2014 the Constitutional Court dismissed a constitutional appeal, which had been lodged against these decisions on 15 August 2011 by the first applicant on behalf of his father, who had passed away in the meantime. 55.     In a statement made to his lawyer on 1 February 2008 the sixth applicant wrote that the medical report issued in 2007 contained a recommendation that he should have another dermatological check-up in two months, which check-up had not taken place, and that, contrary to what was in the report, he had not had any physiotherapy. He also maintained that he could not communicate with the doctor as the doctor could not speak English or Albanian. The sixth applicant claimed that his health situation was far from regular and referred to the shoulder pain, high blood pressure, high 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, had 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. 56.     The sixth applicant also submitted 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 of a representative of the US Embassy, consistently complained about his medical problems, in particular about the growth of a mole on his face and a shoulder pain. 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 treatment for the shoulder pain, but that he had stopped taking it as it made him nauseous. The submitted copy of the letter bears no logo of the US Embassy, no signature of an authorised person, and no stamp indicating that it has ever been submitted to the High Court. 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 - OG RM - no. 48⁄92) 57.     Article 9 of the 1992 Constitution provided, inter alia , that Serbian was the language in official use. The 1992 Constitution was repealed by 2007 Constitution. B.     Constitution of Montenegro 2007 ( Ustav Crne Gore, published in the Official Gazette of Montenegro - OGM - no. 01⁄07) 58.     Article 13 of the 2007 Constitution provides, inter alia , that the official language is Montenegrin, while Serbian, Bosnian, Albanian and Croatian are also in official use. 59.     Article 32 provides for the right to a fair trial. 60.     Article 149 provides that the Constitutional Court shall 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. 61.     The Constitution entered into force on 22 October 2007. C.     Montenegro Constitutional Court Act 2008 ( Zakon o Ustavnom sudu Crne Gore , published in the OGM nos. 64⁄08, 46⁄13, and 51⁄13) 62.     Section 48 provided that a constitutional appeal might be lodged against an “individual act” of a State body, an administrative body, a local self-government body or a legal person exercising public authority, in respect of violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies had been exhausted. 63.     Sections 49-59 provided additional details as regards the processing of constitutional appeals. In particular, section 56 provided that when the Constitutional Court found a violation of a human right or freedom, it would quash the impugned “act”, entirely or partially, and order that the case be re-examined by the same body which had rendered the quashed “act”. 64.     This Act entered into force in November 2008 and was repealed by the Constitutional Court Act 2015. D.     Montenegro Constitutional Court Act 2015 ( Zakon o Ustavnom sudu Crne Gore , published in the OGM no. 11⁄15) 65.     Section 68 provides that a constitutional appeal can be lodged by a physical person or legal entity, organisation, a community ( naselje ), a group of persons and other forms of organisation, which do not have a status of legal entity, if they consider that their human right or freedom guaranteed by the Constitution was violated by an individual decision, action or omission of a State body, an administrative body, a local self-government body or a legal person exercising public authority, after all other effective legal remedies have been exhausted. 66.     Sections 69-78 provide further details as regards the processing of constitutional appeals. In particular, section 69 provides, inter alia , that a constitutional appeal can be lodged within 60 days as of the day when an impugned action violating a human right or freedom ceased. Section 76 provides that if in the course of proceedings before the Constitutional Court an impugned decision ceased to be in force, and the Constitutional Court finds a violation of a human right or freedom, it will adopt a constitutional appeal and award the appellant just satisfaction. 67.     Section 38 provides that the Constitutional Court must decide within 18 months as of the day when the proceedings before that court were initiated. 68.     This Act entered into force on 20 March 2015 thereby repealing the Constitutional Court Act 2008. E.     The Criminal Code 2003 ( Krivični zakonik ; published in the OG RM nos. 70⁄03, 13⁄04, 47⁄06, 40⁄08, 25⁄10 and 32⁄11) 69.     Article 365 describes a criminal act of “terrorism” and provides for a sentence of imprisonment of between 3 and 15 years. 70.     Article 372 § 1 provides, inter alia , that whoever establishes a group or other association with the aim of committing one of the criminal offences defined in Articles 365-367 of this Code, shall be punished by the sanction envisaged for the criminal offence for which the association has been established. Article 372 § 3 provides that whoever becomes a member of an association described in paragraph 1 of this Article shall be sentenced to imprisonment of between 6 months and 5 years. 71.     Article 373 § 2 provides that whoever sends or transports to the territory of Montenegro persons or weapon, explosive, poisons, equipment, ammunition or other material for the purposes of execution of one or more criminal offences from this Chapter, shall be sentenced to imprisonment lasting between 2 and 10 years. F.     The Criminal Procedure Code 2003 ( Zakonik o krivičnom postupku ; published in OG RM nos. 71⁄03, 07⁄04 and 47⁄06) 72.     Article 12 § 1 provides that the use of force against a person deprived of liberty, and the extortion of a 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 a confession or another statement obtained by extortion, torture or inhuman treatment. 73.     Article 24 § 1 provides that, except as otherwise provided in this Code, a case shall be tried at first instance by a five-judge bench when dealing with criminal offences for which imprisonment for 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 for fifteen years or more, and by a three-judge bench when the possible sanction is milder. 74.     Article 31 § 6 provides for a single set of proceedings and a single judgment in a case where there are several persons accused of a plurality of criminal offences, provided that there is a connection between the offences committed and the evidence is the same. If a higher court is competent for some of those criminal offences and a lower court for the others, combined proceedings can be conducted only before the higher court. The same applies when deciding which judicial formation within a court is competent to rule on the case at issue. 75.     Articles 75-80 regulate search of premises, property and persons. In particular, Article 77 § 3 provides that the search of a flat shall be attended by two adults as witnesses. Article 79 § 4 provides that the search of a flat can also be conducted without witnesses if it is not possible to secure their presence at the relevant time and there is a danger that the search will have to be postponed. The reasons why the search was conducted without witnesses shall be noted in the search minutes. Article 79 § 5 provides that authorised police officers can search persons they are arresting, without a warrant and without witnesses if there is a suspicion that that person possesses a weapon or if there is a fear that he will discard, hide or destroy objects that should be seized from him as evidence in a criminal proceedings. 76.     Article 156 provides that, upon a request of a detainee and with the approval of an investigating judge, detainees can be visited by, inter alia , a doctor. 77.     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 any measures to remove 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. 78.     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 će početi iznova ). 79.     Article 376 § 1(1) provides, inter alia , that there shall be a breach of the rules of criminal procedure if the composition of the court was irregular. 80.     Article 388 § 1 (1) provides, inter alia , that the second-instance court shall ex officio examine if there have been breaches of criminal proceedings provided in Article 376 § 1. 81.     Articles 507-529 regulate proceedings with regard to criminal offences committed in an organised manner.   In particular, Article 507 § 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 ).   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. G.     The Criminal Sanctions Enforcement Act ( Zakon o izvršenju krivičnih sankcija; published in OG RM nos. 25⁄94, 29⁄94, 69⁄03 and 65⁄04) 82.     Section 31 provides, inter alia , that the convict’s medical condition shall be established when he is admitted to the prison. 83.     Section 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 section 181, section 61 also applies in respect of detainees. H.     Detention Rules ( Pravilnik o kućnom redu za izdržavanje pritvora, published in the Official Gazette of the Socialist Republic of Montenegro no. 10⁄87) 84.     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. 85.     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. 86.     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. 87.     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. 88.     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. I.     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) 89.     Sections 154 and 155 set out different grounds for claiming civil compensation, including pecuniary and non-pecuniary damage. 90.     Section 172 (1) provided that a legal entity, which includes the State, was liable for any damage caused by one of “its bodies”. 91.     Sections 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. J.     The Obligations Act 2008 ( Zakon o obligacionim odnosima ; published in the OGM nos. 47⁄08 and 04⁄11) 92.     This Act entered into force on 15 August 2008 thereby repealing the Obligations Act 1978. Sections 148-149, 166 (1), and 206-207, however, correspond to sections 154-155, 172 (1), and 199-200 of the previous Act. 93.     Section 151 (1) provides that everyone is entitled to request the court or another competent body to order termination ( prestanak ) of an action violating, inter alia , personal integrity,