Keeping prisoners in the cells for 23 hours a day is a degrading treatment. Temporary detention legislation must accurately stipulate its duration
Bigović v. Montenegro 19.03.2019 (no. 48343/16)
Degrading conditions of detention. A prisoner sentenced to 30 years’ imprisonment for murdering an investigator remained for 23 hours a day locked in his cells and the only regular activity outside the cell was exercise for one hour a day. Lack of adequate provision for the law of detention and illegal detention of the applicant without a new provision extending his detention. Not ‘sufficient’ reasons for the applicant’s continued detention for a period of more than five years. Infringement of Articles 3 and 5 §§ 1 and 3 of the ECHR.
The applicant, Ljubo Bigović, is a Montenegrin national who was born in 1976. He is currently serving
a 30-year prison sentence in Spuž (Montenegro) for, among other things, the aggravated murder of a
high-ranking police investigator.
The case concerned his complaints about his detention, including poor conditions and inadequate
Mr Bigović was arrested in February 2006 and placed in detention because of the risk of him
absconding. His detention was extended during the next four years and seven months for the same
reason. After that, the courts considered, in addition, that his release would seriously breach public
order and peace. He was ultimately convicted in 2012, and this decision was upheld on appeal by the
Supreme Court in 2015.
Throughout his detention he has suffered from various illnesses, including ulcerative colitis,
cataracts, problems with his knees and depression. He has been examined and treated by both
prison doctors and external specialists, has been prescribed medication and a special diet and has
He unsuccessfully applied for release on numerous occasions, primarily for health-related reasons,
while complaining about the length and lack of review of his pre-trial detention as well as the
reasons for it, inadequate medical care and poor conditions in detention. He made the same
complaints when appealing against his convictions before the courts and lastly before the
Constitutional Court, also without success.
Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, he complained about the conditions of his detention. He alleged, in particular,
overcrowding, a semi-partitioned toilet in his cell and only one hour’s outdoor exercise per day. He further submitted that he had developed his illnesses in detention and that the medical care he had received had been inadequate.
He made a number of other complaints about his detention under in particular Article 5 §§ 1 (c) and
3 (right to liberty and security) of the European Convention. He notably alleged that his detention
had not been regularly reviewed and was therefore unlawful, that it was too long and insufficiently
justified and that the courts did not decide on his applications for release in good time.
THE DECISION OF THE COURT
Condition of detention
The Court also notes, however, that the applicant was transferred to prison in February 2016, having been in a remand prison for ten years, that is between February 2006 and February 2016. The Government provided no evidence contradicting the applicant’s submission in respect of his detention between 16 February 2006 and 5 August 2009, for which apparently there are no records. On the other hand, the applicant’s submissions are supported by the CPT, which observed in its 2008 report “the alarming level of overcrowding” in the remand prison at the relevant time, the cells being stuffy and humid. The CPT also noted that the remand prisoners had been allowed two thirty-minute walks per day, which was below the statutory minimum of two hours, and that they remained inside their cells for twenty‑three hours or more a day, in some cases for several years.
Although the conditions in the remand prison improved after the CPT’s visit in 2008, the cells still contained a semi-partitioned sanitary facility, whereas the CPT recommended that it be fully partitioned. In addition, inmates were systematically spending twenty-three hours each day locked in their cells. The only regular out-of-cell activity was outdoor exercise for one hour per day, and there were two exercise bikes in two small readapted cells, which could be used for one hour a week by inmates in need of physical rehabilitation. For the rest of the time, prisoners remained in a state of inactivity in their cells..
While the improvements made to the remand prison are certainly praiseworthy in the light of the CPT’s observations as regards the remand prison in 2008 and 2013, especially as regards the overcrowding, semi‑partitioned sanitary areas and the inmates being locked in their cells for twenty-three hours a day, the Court cannot but conclude that the conditions in which the applicant was held in the period between February 2006 and August 2009 in the remand prison were in violation of Article 3 of the Convention.
No violation of Article 3 – on medical care
The Court concludes that the presence of prison guards during the medical examinations did not, alone, attain a sufficient level of severity to entail a violation of Article 3 of the Convention.
Violation of Article 5 § 1
The Court considers that compliance with the statutory time-limits provided for the re-examination of the grounds for detention is of utmost importance, particularly given that the domestic courts were not obliged to specify the exact duration of the detention.
The Court reiterates that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention. That standard requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.
The Court considers that, in the present case, the relevant legislation itself seems to be sufficiently clearly formulated. However, the lack of precision in detention orders in respect of the duration of extensions and the lack of consistency at the time, before the Supreme Court had issued its ruling in 2017, as to whether the statutory time-limits for re-examination of the grounds for detention were mandatory or not made it unforeseeable in its application. The Court therefore considers that there has been a violation of Article 5 § 1 of the Convention with regard to periods where more than two months passed after the indictment was issued without new orders extending the applicant’s detention.
Violation of Article 5 § 3
In the applicant’s case, the risk of absconding was the only reason for his continued detention until 30 December 2011, that is for four years and seven months of his pre-trial detention. It was only then that the courts, in addition, considered that the release of the defendants, including the applicant, would breach public order and peace. Even then, however, the authorities used standardised formulae, and on several occasions merely specified that “the reasons for detention still persisted”, without going into any detail whatsoever.
The Court further observes that, apart from the fact that the applicant was a relatively young person , the courts, when extending his detention, failed to consider his personal circumstances, such as his character and morals, home, occupation, assets, family ties and various links to the country in which he was being prosecuted. Those are all factors in the light of which the risk of absconding has to be assessed. Moreover, the Court observes that the domestic courts did not make any express assessments as to the proportionality of the applicant’s continued detention, in particular in the light of his state of health and the lapse of time.
Finally, when deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial , which in the present case they failed to do.
For the foregoing reasons, the Court considers that the authorities extended the applicant’s detention on grounds which cannot be regarded as “sufficient”, thereby failing to justify his continued deprivation of liberty for a period of over five years. It is therefore not necessary to examine whether the proceedings against him were conducted with due diligence.
There has accordingly been a violation of Article 5 § 3 of the Convention.
Just satisfaction: EUR 8,000 (non-pecuniary damage) and EUR 2,560 (costs and expenses)(echrcaselaw.com editing).