CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 mars 2019

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MONTENEGRO   (Application no. 48343/16)                   JUDGMENT     STRASBOURG   19 March 2019     FINAL   19/06/2019       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Bigović v. Montenegro, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Işıl Karakaş,   Valeriu Griţco,   Stéphanie Mourou-Vikström,   Ivana Jelić,   Arnfinn Bårdsen,   Darian Pavli, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 26 February 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 48343/16) 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 Ljubo Bigović (“the applicant”), on 3 August 2016. 2.     The applicant was represented by Ms B. Franović, a lawyer practising in Podgorica. The Montenegrin Government (“the Government”) were represented by their Agent, Ms V. Pavličić. 3.     The applicant complained about the conditions of his detention, in particular of the lack of medical care, the unlawfulness of his detention in view of the irregular reviews as to whether his further detention was justified, insufficient reasoning in the decisions extending his detention, the length thereof and the lack of a speedy decision on his release. 4.     On 25 January 2018 notice of those complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1976. He is currently serving a prison sentence in the Institution for the Execution of Criminal Sanctions ( Zavod za izvršenje krivičnih sankcija ; hereinafter “the IECS”) in Spuž. 6.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Background information 7.     On several occasions in July and August 2005 explosives were used on the construction site of a hotel on the Montenegrin coast, apparently with the aim of forcing the investors to buy the adjacent plot of land. A high ‑ ranking police officer, S.Š., was in charge of the police investigation. 8.     Shortly after midnight on 30 August 2005, S.Š. was ambushed in front of his house and killed by nineteen shots from an automatic gun. 9.     On 16 February 2006 the applicant was arrested on suspicion of criminal enterprise ( zločinačko udruživanje ), attempted extortion ( iznuda u pokušaju ) and aiding and abetting aggravated murder ( teško ubistvo putem pomaganja ). The case was entrusted to the Special Prosecutor for Organised Crime. B.     The applicant’s detention 10.     On 19 February 2006 the investigating judge of the High Court ( Viši sud ) in Podgorica issued a detention order against the applicant and several other persons for fear that they might abscond, taking into account the gravity of the offences and the severity of the prison sentence prescribed. The decision specified that detention would last for a month starting as of 16 February 2006. It relied on Article 148 § 1(1) of the Code of Criminal Procedure (“the CCP”) in force at the time (see paragraph 94 below). 11.     The detention of the applicant and one other person was extended on 16 March, 15 April, 16 May, 15 June and 12 July 2006, each time for another month, in substance for fear that they might abscond and taking into account the gravity of the criminal offences of which they were suspected. Relying on Article 148 § 1(1) of the CCP, the court specified, inter alia , that there was an ongoing investigation against them and that a number of witnesses remained to be interviewed. Those decisions specified that as well as criminal enterprise and attempted extortion, the applicant was also suspected of aiding and abetting aggravated murder. 12.     On 14 August 2006 the Supreme State Prosecutor (Special Prosecutor) filed an indictment against the applicant and several other persons. The applicant was indicted for criminal enterprise, attempted extortion, aiding and abetting aggravated murder, helping a perpetrator after the commission of a criminal offence, incitement to forge an official document ( isprava ), and incitement to endanger the public ( izazivanje opšte opasnosti ). 13.     The defendants’ detention, including the applicant’s, was further extended by the High Court on 15 August 2006, 21 October 2008 and 11   March 2009, in substance for fear that they might abscond taking into account the gravity and number of criminal offences that they had been accused of and the sentences prescribed for them. The latter two decisions also took into account that the defendants were relatively young, that three of them were unemployed, two were single, and one was a foreign citizen. All three decisions relied on Article 148 §1(1) and none of them specified for how long the detention was extended. 14.     In addition, on 23 May 2007, during the main hearing ( glavni pretres ), the applicant requested that his detention be lifted, submitting that he had nowhere to abscond to and that he would duly appear before the court ( uredno odazvati na pozive suda ). The court dismissed the request the same day, considering that “the grounds for [the applicant’s] detention still persisted”. 15.     On 7 August 2009 the High Court found the applicant guilty of several criminal offences and sentenced him to thirty years in prison. 16.     On 17 February 2010 the Court of Appeal ( Apelacioni sud ) in Podgorica quashed the High Court judgment. The same day it extended the detention of four defendants, including the applicant, without specifying for how long, considering that “the reasons for detention still persisted”. The court relied on Article 148 § 1(1) and (4) of the CCP in force at the time (see paragraph 94 below). 17.     On 4 March 2011 four defendants, including the applicant, applied for release ( predlog za ukidanje pritvora ). On 10 March 2011 the High Court dismissed their application, considering that “the circumstances on the basis of which [their] detention had been extended still persisted”. It relied on Article 148 §1 (1) and (4). 18.     On 9 May 2011 the High Court again found the applicant guilty of several criminal offences and sentenced him to thirty years in prison. The same day the court extended the detention of four defendants, including the applicant, for fear that they might abscond in view of the sanction imposed, and that their release could seriously jeopardise public order and peace. The court relied on Article 175 § 1(1) and (4) of the 2009 CCP (see paragraphs 100-101 below). 19.     On 30 December 2011 the Court of Appeal quashed the High Court’s judgment. The same day the court extended the detention of five defendants, including the applicant, without specifying for how long, considering that “the reasons for detention still persisted”. It relied on Article 175 § 1(1) and (4) of the 2009 CCP. 20.     On 1 February 2012, relying on Articles 5 and 6 of the Convention, five defendants, including the applicant, applied for release, maintaining that the reasons for their detention no longer persisted. On 8   February 2012 the High Court dismissed their application, considering that “the circumstances had not changed since the previous decision” and that “the reasons for their detention persisted”. It relied on Article 175 § 1(1) and (4) of the 2009 CCP. 21.     On 11 April, 13 June and 10 August 2012 the High Court, acting pursuant to Article 179 § 2 of the 2009 CCP (see paragraphs 96 and 100 below), further extended the detention of five defendants, including the applicant, “until further notice” ( ima trajati do dalje odluke suda ), for fear that they might abscond and that their release would seriously breach public order and peace. In doing so the court relied on Article   175 § 1(1) and (4) of the CCP. The court took into account the gravity and the number of offences at issue, the sentence provided for the offences, the circumstances in which they had been committed, as well as the fact that the defendants were relatively young and that one of the accused had absconded. 22.     On 18 April 2012, during the main hearing, five defendants, including the applicant, applied to the court to lift their detention. The court dismissed their application the same day, considering that “the reasons for extending their detention persisted”. 23.     On 9 October 2012 the High Court, inter alia , found the applicant guilty of attempted extortion, public endangerment and aggravated murder, all through incitement ( sve putem podstrekavanja ), and sentenced him to thirty years in prison. The same day the court extended the detention of four defendants, including the applicant. It considered that the risk of their absconding persisted, and that there were particular circumstances indicating that releasing them would seriously breach public order and peace. The court relied on Article 175 §   1(1) and (4) of the 2009 CCP. 24.     On 2 April 2013 the Court of Appeal upheld the first-instance judgment. 25.     On 2 April 2014 the Supreme Court quashed the Court of Appeal’s judgment. The same day the Supreme Court extended the detention of four defendants, including the applicant, considering that the reasons for detention persisted. Notably, the defendants at issue had been found guilty of aggravated murder by the first-instance judgment, which had not been quashed. The offence contained two qualifying circumstances: (a) the victim was a police officer, and (b) he had been murdered for profit ( koristoljublje ). Referring to Article 175 § 1(4), the court considered that releasing the defendants could seriously breach public order and peace. 26.     On 1 August 2014 the applicant applied for release to the High Court. Relying on Article 5 of the Convention and the relevant case-law, he complained, inter alia , about the length of his detention, alleging insufficient reasoning of the relevant decisions, the lack of regular review of his detention pursuant to Article 179 § 2 of the CCP, a lack of medical care and poor conditions in detention. He also submitted that in October 2013 he had been diagnosed with ulcerative colitis (an inflammatory bowel disease that causes long-lasting inflammation and ulcers in the digestive tract; it affects the innermost lining of the large intestine (colon) and the rectum) and enclosed the relevant medical reports. On 3 September 2014 the applicant urged the High Court to rule on his application. 27.     On 4 September 2014 the applicant applied to the Court of Appeal. On 12 September 2014, during the main hearing before the Court of Appeal, the applicant applied for release, primarily for health-related reasons. He submitted additional medical reports. Between 5   November 2014 and 16   January 2015 he urged the Court of Appeal on six occasions to rule thereon. 28.     On 23 January 2015 the Court of Appeal heard a medical expert witness and obtained information from the IECS in this regard. The expert medical witness submitted that the applicant’s illness (ulcerative colitis) was serious, requiring a special diet and specific medical treatment, the absence of which, or even small deviations, could make it worse. He also explained that the illness caused a lot of psychological changes. The IECS submitted that it provided both medical care, including in public health institutions where needed, and various diets. In particular, the applicant had been taken to various hospitals and specialists, and was allowed to provide for his own food. On 13 February 2015 the court dismissed his application. 29.     On 20 February 2015 the Court of Appeal upheld the High Court’s judgment on the merits of 9 October 2012. The same day, relying on Article   175 § 4 of the CCP, the court extended the four defendants’ detention, including the applicant’s, finding that the reasons for it persisted. 30.     On 12 March 2015 the Supreme Court, acting upon an appeal lodged by the applicant, quashed the order of 20 February 2015 extending the applicant’s detention, finding that Article 175 § 4 of the CCP, on which the Court of Appeal had relied, did not exist, as the relevant provision contained only two paragraphs. The court also acknowledged that there was no reasoning as to whether the applicant’s health affected his further detention. 31.     On 16 March 2015 the Court of Appeal extended four defendants’ detention, including the applicant’s, relying on Article 175 §   1(4). It found the applicant’s health of no relevance to his further detention, given that it transpired from the IECS’s submission that the applicant had been provided with adequate medical care and nutrition. 32.     On 20 March 2015 the applicant appealed, relying on Articles 5 and   6 of the Convention. He submitted that the order to extend the detention had been issued for all defendants together, and that the court had failed to provide specific reasons for extending his detention. He also complained about the conditions in detention and of a lack of adequate medical care there, including a lack of the medically prescribed diet (see paragraph 45 below). 33.     On 27 March 2015 the Supreme Court dismissed the appeal. While acknowledging that the relevant judgment was not yet final, the court took into account that the defendants had been found guilty of aiding and abetting aggravated murder, for which a prison sentence of ten years or more was prescribed. It also held that the Court of Appeal had sufficiently examined the applicant’s health and its relevance to detention. 34.     On 7 May 2015, invoking Articles 3, 5 and 6 of the Convention, the applicant lodged a constitutional appeal. He complained, in particular, that (a) the conditions of detention in prison, in particular the medical care, were inadequate; (b) his detention was unlawful given that it was not regularly reviewed; (c)   his detention was lengthy and the relevant decisions had been insufficiently reasoned; and (d) his application for release submitted on 1   August 2014 had not been ruled upon. 35.     On 16 June 2015 the applicant again applied for release. He invoked the principle of proportionality and submitted that whenever possible the courts were obliged to order a less severe measure instead of detention. He referred to his state of health and relied on Bulatović v.   Montenegro , no.   67320/10, 22 July 2014. He attached a medical report of 10 June 2015 (see paragraph 77 below). 36.     On 9 July 2015 the High Court dismissed his application, relying on Article 175 § 1(4) of the CCP. It considered that the applicant had been found guilty of aggravated murder by a judgment which was not yet final, and that the criminal offence at issue was particularly grave owing both to the manner in which it had been committed, and to its consequences – the death of a high-ranking police officer, who had been murdered for profit. The court considered that the applicant’s health was of no consequence as he was being, and had to be, provided with an adequate diet and medical care in the IECS. Even if this had not been the case, it would not affect the existence of a reason for detention, but could only indicate that he should be detained in more adequate conditions, such as in the Clinical Centre of Montenegro. 37.     On 20 October 2015 the Supreme Court, in substance, upheld the judgment of the Court of Appeal of 20 February 2015 and the applicant’s sentence of thirty years in prison. 38.     On 28 December 2015 the Constitutional Court dismissed the applicant’s constitutional appeal. The court found, in particular, that the impugned decisions had been rendered by competent courts, in a procedure prescribed by law, on the basis of the CCP, and that the reasons contained therein were not arbitrary. As regards the length of detention, the court held that Article 5 distinguished between detention before and after conviction. It held that the lawfulness of detention could be assessed only until the first ‑ instance judgment, which did not have to be final. Given that the first ‑ instance judgment had been issued on 7 August 2009, the applicant’s constitutional appeal in that regard was belated. As regards medical care, the court considered that the applicant’s health had been continuously monitored by a number of specialists in various institutions, and that he had been provided in a timely manner with reasonable available medical care ( pravovremeno su pružili razumnu dostupnu medicinsku njegu ). The decision did not address the conditions of detention, whether the applicant’s detention had been regularly reviewed or the alleged failure to rule on his application for release. That decision was served on the applicant on 25   March 2016. C.     The conditions of detention 39.     The parties’ submissions in this regard differed. 40.     The applicant maintained that the cell in which he had been detained had been overcrowded, the number of inmates varying, and that he had lacked water and daily exercise.   The cell had contained a sanitary facility and a dining table. Due to a frequent lack of water, the applicant had had to collect it in a container ( u buretu ). Also, the daily walks had lasted for one hour – except for Thursdays and Fridays, when they had lasted for half an hour – and had been cancelled altogether on rainy days. 41.     The Government, for their part, submitted that there were no records for the period prior to 5 August 2009.   Between 5 August 2009 and 26   March 2010 the applicant had been held in room D4, measuring 30   sq.   m, which, at times, he had shared with five other persons at most.   Between 27 March 2010 and 8   February 2016 he had been in room L9, measuring 20   sq. m, which he had shared with three other persons at most, and during some periods he had been there alone. Both D4 and L9 had their own toilets, separated from the rest of the room, which the inmates were in charge of cleaning. 42.     In the remand section of the prison the applicant had had at his disposal four outdoor walking areas, measuring in the range of 506 sq. m to 900 sq. m. He had also been allowed out of his room during family visits (thirty minutes per week) and during the visits of his representatives, which were not time-limited. 43.     On 8 February 2016 the applicant had been transferred to the post ‑ conviction section of the prison, where he had been placed in a single room on the ground floor in newly-built pavilion F. The room measured 15.09 sq. m, of which the main area measured 5.7 sq. m, the dining area 7.84 sq. m, and the toilet with wash basin 1.55 sq. m, separated from the rest of the room by a dividing wall. In the room there was a bed, a table and a chair, a wardrobe, a television set and receiver, a DVD player, a refrigerator, air-conditioning, a hot plate and an oven. In the immediate vicinity of the room there was a common bathroom with several showers.   There were several outdoor yards at his disposal: one of concrete measuring 289 sq. m, and two grass ones measuring 210 sq. m and 2,393   sq.   m respectively. There was also a covered gym ( natkrivena teretana ) of a metal construction. 44.     The Government also submitted that the conditions in the prison, for both remand prisoners and convicted prisoners, had been significantly improved after a visit of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment (“the CPT”) in 2013 (see paragraph 139 below). D.     The applicant’s health 1.     Ulcerative colitis 45.     In September 2013 the applicant was diagnosed with ulcerative colitis and was prescribed a special diet ( crijevna dijeta ) by a specialist in the Clinical Centre of Montenegro (a State-run hospital). The relevant medical report did not contain any details as regards the exact content of the diet. With the consent of the High Court judge of 9   December 2013, special food products were provided by the applicant’s family, at first once a day and then once a week. 46.     It transpires from medical reports issued in June, July and November 2014 that the treatment the applicant was receiving for ulcerative colitis was not effective. In 2014 he was, inter alia , admitted twice to the Clinical Centre as his condition had worsened. As he did not wish to undergo surgery, he was prescribed medication called Vedolizumab (“VDZ”) instead. It is unclear from the case file when exactly VDZ was prescribed, but it would appear that it was between September and November 2014. The reports of November 2014 also noted that the applicant did not wish to be hospitalised either. As VDZ was not available in Montenegro, the applicant had four doses bought for him in Germany, the cost of which was 17,222.40 euros (EUR). Those doses were administered in December 2014, January, February and March 2015. After the dose in March 2015 the doctors noted “evident improvement” and considered it of utmost importance that the applicant be given the next dose, as “every delay thereof increased the risk of the illness worsening”. The next dose was planned for May 2015. 47.     Twice in May 2015 the IECS informed the Court of Appeal and the Supreme Court of its attempts to provide VDZ for the applicant. Given that it was not registered in Montenegro, it could be obtained only with the exceptional approval of a request made by a company licensed to distribute medication. The IECS had asked that such a request be made by a pharmaceutical company. 48.     On 20 May 2015 the main distributor of VDZ informed the pharmaceutical company that VDZ was under special monitoring ( pod posebnim praćenjem ). Every administration of it had to be authorised by its medical sector, and each and every individual case examined separately. 49.     On 22 July 2015 the applicant had two more doses bought for him in Germany, the cost of which was EUR 5,975.94. They were administered in August and September 2015. 50.     On 2 September 2015 the IECS provided for two doses of VDZ, the cost of which was covered by the High Court (one being EUR 4,457.85). They were administered in November 2015 and January 2016. 51.     In the course of 2015 the applicant was hospitalised once because his ulcerative colitis had worsened. 52.     In 2016 the applicant received five doses of VDZ in total (the one in January 2016 mentioned in paragraph 50 above, and in February, October, November and December 2016). The dose planned for March 2016 was not administered until October 2016. 53.     In 2017 the applicant received nine doses of VDZ (January, February, March, April, May, June, July and two in September). There is no information in the case file as to who covered the costs of the doses as of February 2016 onwards. 54.     In at least nine medical reports in 2017 the doctor in charge noted that the treatment with VDZ had been prescribed because the applicant had kept refusing surgery. He considered, however, that in spite of the VDZ treatment, the applicant’s health was not satisfactory and that even though he kept refusing to undergo an operation, there was no other option, and the applicant was advised to consider it again. The doctor also considered that it was practically impossible for the applicant to recover ( ostvari remisiju ), given that the conditions in which he was detained increased the risk of complications and could be life-threatening. 55.     Between 15 November and 4 December 2017 the applicant was hospitalised again because his ulcerative colitis had worsened. As he had been recommended surgery, further VDZ treatment was discontinued. 56.     On 13 June 2018 the doctor from the Clinical Centre noted that the applicant was feeling well. On 23 July 2018 the applicant underwent an endoscopic examination in the Clinical Centre, in which it was found that the ulcerative colitis was in remission. On 25 July 2018 the prison doctor noted that the applicant was feeling well, that he was in a state of remission and that his ulcerative colitis was in a “tranquil” phase. Between 3 August and 20 December 2018 the applicant had three more specialists’ examinations indicating an inflammatory pseudopolyp and that the ulcerative colitis had reactivated after six months of remission. 2.     Eye surgery 57.     On 17 October 2013 a discharge note from the hospital stated that the applicant had been, inter alia , recommended an ophthalmological examination in order to determine his dioptres. A discharge note of 25   December 2013 stated that the applicant had diminished vision ( oslabljen vid ). 58.     On 13 January 2014 (during an endoscopic examination at the Clinical Centre), the applicant was told he must undergo an ophthalmological examination on account of his sudden eyesight problems ( zbog naglo nastalih smetnji s vidom ). 59.     On 4 February 2014, with the High Court’s consent of 30   January and 4 February 2014, the applicant was examined by an ophthalmologist in Meljine hospital as well as in a privately-run ophthalmology clinic in Podgorica. The report of the ophthalmologist in Meljine is partly illegible. It transpires from the legible part that the applicant was diagnosed with complicated cataracts ( cataracta complicate ) in his left eye. The next check ‑ up was recommended in three to four months. 60.     On an unspecified date, apparently in March 2014, the applicant was diagnosed with proliferative retinopathy ( Retinopathia proliferativa alia ), myopia ( OD Myopia ), and optic atrophy ( OS Atrophia n.   optici ). A panel of ophthalmologists ( konzilijum oftalmologa ) recommended eye surgery in a privately-run clinic, which would include a cataract operation. 61.     On 26 March 2014 the applicant was examined in a privately-run ophthalmological clinic. He underwent surgery on 27 March 2014, for which he paid EUR 2,600. 3.     Knee-related treatment 62.     It transpires from the case file that the applicant had been suffering pain in the knee, spine and feet since 2000. He had undergone surgery to his left leg in 2001, had broken a thighbone in 2003, and both legs were “extremely deformed” ( izrazito deformisana ) owing to shotgun injuries ( prostrelne rane ) and a car accident, which would appear to have taken place in 2005. After gangrene had appeared, the applicant had undergone surgery to his right leg and skin grafts. 63.     In the course of 2015 the applicant was examined by a number of specialists from the Clinical Centre and the Special Hospital for Orthopaedics, Neurosurgery and Neurology in Risan (“the Risan hospital”), and received various medication. 64.     In particular, during his hospitalisation between 28 March and 3   April 2015 (for ulcerative colitis) the applicant was also examined by an orthopaedist who recommended surgery. He had another check-up on 22   April 2015. 65.     On 24 April 2015 the applicant was hospitalised again because his surgery wounds were oozing ( secernacije ) under the left knee and he required further surgery.   On 30 April 2015, on his discharge from hospital, he was recommended rehabilitation treatment in the Rehabilitation Institute in Igalo ( Institut za fizikalnu medicinu, rehabilitaciju i reumatologiju – “the Igalo Institute”) and, if the results were not satisfactory, an endoprosthesis. 66.     On 27 July 2015 the applicant requested that he be allowed the said rehabilitation treatment. The High Court approved the request on 30 July 2015, noting that the exact dates of the treatment would be agreed directly between the IECS and the applicant. 67.     On 21 August 2015 the applicant asked the prison authorities to provide him with transportation to the Igalo Institute the first week of September. He submitted that the costs of his treatment and stay there would be entirely covered by his family. On 2 September 2015 he informed the IECS that his treatment was scheduled to begin on 7   September 2015. He repeated that the costs of it would be covered by him. On 7   September 2015 the applicant was taken to Igalo. 68.     Following the recommendation of doctors in Risan hospital, the applicant’s request to that effect and the High Court’s consent, his treatment in the Igalo Institute was extended twice. In one of those requests the applicant submitted that the costs thereof would be covered by him. He stayed there between 7   September and 7   December 2015, for which he paid EUR   10,673.60. The discharge note from the Igalo Institute stated that he had received treatment for strengthening his muscles with the aim of preparing him for a possible endoprosthesis. 69.     Between 4 September 2015 and 9 February 2016 the High Court informed the IECS on several occasions that the costs of the applicant’s medical treatment, including for VDZ, and the costs of security guards at the Igalo Institute, would be covered by the High Court upon presentation of the relevant reimbursement requests ( po podnošenju zahtjeva za naknadu troškova ), pursuant to Article 226 §§ 2(5) and 4 of the CCP.   Between 14   October 2015 and 12 February 2016 the Judicial Council paid EUR   15,748.80 to the Igalo Institute for the accommodation of the IECS security guards who had accompanied the applicant during his treatment there. 70.     On 3 December 2015 a specialist in Risan hospital noted that the applicant was still suffering strong pain in his left knee and that the treatment in the Igalo Institute had not improved it. The specialist recommended inter-ligament corrective osteotomy with external fixing ( interligamentarna korektivna osteotomija uz spoljašnju fiksaciju ). He diagnosed the applicant with advanced knee arthrosis. 71.     Between 2 June 2016 and March 2017 the applicant’s left knee was further examined by a number of specialists: once by an orthopaedist, a vascular surgeon and a neurologist, and three times by a neuro-surgeon. He also had an X-ray of the knee and an MRI scan of the lumbar spine. He was diagnosed with serious osteoarthritis of the left knee ( gonarthrosis lateralis sinistri gradus gravis ), atherosclerosis, lumbalgia ( lumboischialgia ), and peroneal nerve dysfunction ( leasio nervi peronaei ), and further treatment in the Igalo Institute was recommended. 4.     Psychiatrist 72.     During his hospitalisation between 28 March and 3 April 2015 (for ulcerative colitis) the applicant had also been examined by a psychiatrist and prescribed treatment. The report did not specify which treatment, but stated that the next check-up should take place “if needed” ( po potrebi ). 73.     On 25 March 2016 the applicant was examined by the prison doctor, who recommended an examination by a psychiatrist in the specialist hospital in Kotor. On 29 March 2016 the applicant was examined in Kotor, where he submitted that in the previous two months he had felt fear for his physical health and certain aspects of everyday functioning. The doctor prescribed treatment. The next appointment scheduled for 19 April 2016 took place on 18 April 2016. The doctor found that he was suffering from “prominent anxious-depressive psychopathology with vegetative expression” ( prominentna anksiozno-depresivna psihopatologija, sa vegetativnom ekspresijom ) and prescribed treatment. The next check-up recommended for 4 May 2016 took place on 8 July 2016. The applicant submitted that he had stopped taking the medication “due to changes in the work of the health service” ( zbog izmijenjenih okolnosti rada zdravstvene službe ). The doctor found that he was suffering from depression, a high level of anxiety and severe somatic symptom disorder. He prescribed treatment and recommended another check-up in a month. The next check ‑ up took place on 23 August 2016, when severe anxiety was noted. It was recommended that the next check-up be done by telephone in two weeks, and a further one in Kotor hospital in one to two months. It would appear from the case file that there have been no further check-ups. 5.     Other health-related facts 74.     Between March 2013 and 4 December 2017 the applicant was hospitalised eight times (for 128 days in total) and had in addition twenty ‑ two outpatient hospital treatments.   Between September 2013 and January 2018 he was examined outside the IECS 151 times. 75.     Between 17 September 2013 and 18 August 2015 the IECS informed the High Court on several occasions that following the referral ( uput ) of the prison doctor, the applicant had been taken to various medical institutions outside the IECS. 76.     Medical examinations had been conducted in the presence of prison guards, including a colonoscopy and psychiatric examinations. The colonoscopy had been performed without anaesthesia. 77.     On 10 June 2015 three medical experts (one in forensic medicine, one in internal medicine – a gastroentero-hepatologist and a psychiatrist) issued an opinion on the applicant’s health, after having examined him and his medical file.   They stated that ulcerative colitis was incurable and that apart from genetic factors, it was generated by stressful circumstances. They recommended that the applicant be treated in the least stressful environment possible, that is that he be “isolated from the IECS”. They observed that his health had constantly deteriorated until he had started treatment with VDZ, and that “even though the medication was not registered in Montenegro, it was absolutely medically indicated and necessary to try to administer it, as the only other alterative was surgical removal of the colon, which needed to be avoided as long as there was any other option”. 78.     The doctors further observed that the applicant suffered from myopia, that he could not see in the left eye and he had an artificial lens implanted in the right eye, that he had a dislocation of the fourth and fifth lumbar vertebrae and ossification of the lumbar part of his spine, ossification of his left knee, an injury to a nerve in his left calf, he walked with crutches, and had two skin infections following the administration of injections as a result of the lack of disinfectant alcohol in the prison.   The prison doctor later confirmed that there had indeed been no such disinfectant in the IECS for a considerable time and that it could not provide for the applicant’s special diet, which was why his family was allowed to bring him food. 79.     The doctors described the applicant’s cell as a “classic prison cell”, where only the applicant was held at the time, although he sometimes had a cell-mate. There was a toilet, apparently not separated from the rest of the room, and a separate tank of water. The doctors considered that the lack of running water and absence of a shower in the room could additionally cause a deterioration of the applicant’s health because of an increased risk of infection. 80.     On 3 July 2015 the IECS informed the High Court, the Court of Appeal, the Supreme Court and the applicant that three types of medication (not VDZ), also unavailable in Montenegro, had been provided for the applicant. 81.     On 18 September 2017 a medical expert submitted an expert opinion at the request of the applicant’s representatives. He maintained that there was a threat of malign alteration, which would inevitably result in the applicant’s death, and that it was absolutely necessary to find a solution allowing for adequate nutrition, the permanent administration of complex treatment, moderate daily physical exercise and the elimination of stressful situations. The conditions in which the applicant was detained were described as unfavourable for recuperation. 82.     It would appear that on 26 September 2017 the applicant applied for an extraordinary reduction of his sentence for health-related reasons. The court requested an expert opinion in this regard, which was produced in October 2017. The expert submitted that stressful conditions in the IECS and the limited possibility of an adequate diet were such that the applicant would never achieve remission as long as he was in the IECS. Such course of illness was harmful and threatened to cause serious complications, some of which could undoubtedly be life-threatening. 83.     On 18 January 2018 the applicant was diagnosed with bronchial asthma and prescribed treatment. E.     Other relevant information 84.     On five occasions between 1996 and 2010 the applicant was found guilty of various criminal offences. He received penalties ranging from a six-month suspended sentence to three years of imprisonment. 85.     Before the first first-instance judgment was rendered, sixty hearings had taken place (twenty-one in 2007, twenty-two in 2008 and seventeen in 2009), during which more than seventy witnesses and ten expert witnesses had been heard, tens of expert witnesses’ opinions read out, and more than 100   pieces of material evidence examined. In the same period nine hearings were adjourned because of the absence of or various requests by the applicant and/or other defendants and/or their representatives. 86.     Between 14   September 2010 and 9 May 2011 eighteen hearings were held. Between 5 April and 9 October 2012 eleven hearings were held. 87.     Between 27 June 2014 and 20 February 2015 the Court of Appeal held ten hearings. 88.     The ombudsman’s report of December 2017 indicates that half of all prisoners have some sort of mental illness or disorder and that the prison health service is not operating at full capacity. There is a waiting list for psychiatric evaluation and examination. Recommendations were made to the Ministry of Justice and the IECS to urgently consider the need to establish a prison psychiatric unit and to undertake steps to help patients suffering from depression, as well as to ensure that that kind of examination was conducted without the presence of prison guards (unless the psychiatrist explicitly requested their presence). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution of Montenegro 2007 ( Ustav Crne Gore ; published in the Official Gazette of Montenegro - OGM - nos. 01⁄07 and 038⁄13) 89.     Article 28 guarantees to every individual, inter alia , the inviolability of his or her physical and psychological integrity, and prohibits torture and inhuman and degrading treatment. 90.     Article 30 contains details as regards detention. Paragraph 1 thereof provides that a person in respect of whom there is a reasonable suspicion that he or she has committed a criminal offence may be detained only on the basis of a competent court’s decision and if it is necessary for the conduct of criminal proceedings. Paragraph 4 provides that the duration of detention must be as short as possible ( mora biti svedeno na najkraće moguće vrijeme ). B.     Code of Criminal Procedure 2003 ( Zakonik o krivičnom postupku ; published in the Official Gazette of the Republic of Montenegro - OG RM - nos.   71⁄03, 07/04 and 47⁄06) 91.     Article 16 provided, inter alia , that the courts must conduct proceedings without delays and limit the duration of detention to the shortest time needed. 92.     Article 136 provided that a defendant’s participation in criminal proceedings could be secured by means of summonses, taking the person to court by force, 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. The measures would cease automatically when the reasons for their application ceased to exist, or would be replaced with other less severe measures once the conditions had been met.   Articles 137 to 153 set out details as to each of those measures. 93.     Article 147 § 2, in particular, provided for a duty on the part of all bodies involved in criminal proceedings to act with particular urgency if the accused was in detention. 94.     Article 148 § 1(1) provided that detention could be ordered if there were circumstances indicating that the accused might abscond. Paragraph   1(4) provided that detention could be ordered if there was a reasonable suspicion that an individual had committed a crime for which he or she could be sentenced to ten years’ imprisonment or more, if the crime in question had been committed in especially aggravating circumstances. 95.     Article 149 § 2 provided that a detention order must specify, inter alia , a period of detention. 96.     Article 152 set out details as regards the length of detention after an indictment had been issued. In particular, Article 152 § 2 provided that before the indictment entered into force, a panel of judges, at the request of the parties or of its own motion, “had a duty” ( je dužno ) to examine every thirty days whether the reasons for detention persisted and, if so, to issue a decision extending the detention or, if not, to lift it. The same procedure had to be followed every two months ( svaka dva mjeseca ) after the indictment had entered into force. Article 152 § 3 provided that detention could last three years at most after an indictment had been issued. If the defendant was not served with a first-instance decision within that time frame, the detention would be lifted and the defendant released. Article 152 § 4 provided that after the delivery of the first-instance decision, the detention could last for another year at most. If no second ‑ instance judgment overturning or upholding the first-instance judgment was delivered within that year, the detention would be lifted 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. 97.     Article 155 § 2 provided that every detainee would be able to have an outdoor walk ( obezbjedi[će] se kretanje ) for at least two hours every day. 98.     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. C.     Code of Criminal Procedure 2009 ( Zakonik o krivičnom postupku ; published in OGM nos. 057⁄09, 049⁄10, 047⁄14, 002⁄15, 035⁄15, 058⁄15, and 028⁄18) 99.     On 27 September 2010 the Supreme Court issued a ruling ( zauzeo načelni pravni stav ) (Su.VI br 81⁄10) that proceedings in respect of organised crime, corruption, terrorism and war crimes would be conducted pursuant to this Code as of 26 August 2010. As regards other criminal proceedings, the Code entered into force on 1 September 2011. 100.     Articles 15, 163, 174 § 2, 175 § 1(1), 176 § 5, 179, and 182 § 2 of the Code correspond in essence to Articles 16, 136, 147 § 2, 148 § 1(1), 149   §   2, 152, and 155 § 2 respectively of the previous Code. 101.     Article 175 § 1(4) initially provided that detention could be ordered if there was a reasonable suspicion that an individual had committed a crime for which he or she could be sentenced to ten years’ imprisonment or more, and which was particularly grave due to the manner in which it had been committed or its consequences, and if there were special circumstances indicating that the release of that person would seriously breach public order and peace.   As of 16 January 2015 part of Article 175 § 1(4) ceased to be in force, notably the words “and if there were special circumstances indicating that the release of that person would seriously breach public order and peace”. 102.     Article 226 defines types of costs of criminal proceedings. In particular, paragraphs 2(5) and 4 provide, inter alia , that the costs of proceedings include the costs of medical care of an accused ( troškove liječenja okrivljenog ) while he or she is in detention, except for expenses which are covered by the Health Insurance Fund. These costs are paid from the funds of the court conducting the criminal proceedings at issue upon a reimbursement request ( po podnošenju zahtjeva za naknadu troškova ). 103.     Article 376 regulates detention after a conviction ( nakon izricanja presude ). Paragraph 6, in particular, provides that when detention is ordered or extended after an individual has been convicted, it can last until the judgment becomes final or until the sentence imposed by the first-instance judgment expires. 104.     Articles 381 to 413 regulate the procedure to be followed if an appeal is lodged against the first-instance judgment. Article 397, in particular, provides, in substance, that the provisions relating to the main hearing before the first-instance court shall accordingly apply to the hearing before the second-instance court. D.     Execution of Sentences Act ( Zakon o izvršenju kazni zatvora, novčane kazne i mjera bezbjednosti ; published in OGM no. 036⁄15) 105.     This Act entered