Prohibition of torture, inhuman or degrading treatment or punishment

Merle Albrant

As we’re living in the 21^st century we’d like to presume that torturing another person, treating them in an inhuman or degrading manner or punishing them is a topic for previous centuries. Unfortunately that is not the case. Even modern societies of today, including Estonia may have situations where people are tortured, punished and treated in a degrading or an inhuman manner. In the last few years the attention of the public in Estonia has turned to violence within families, where the victims are predominantly women, who also experience torture. The term “violence against women” means all kinds of violence based on gender, which results in physical, sexual or psychological damage or suffering of the woman. Physical violence means pushing, shoving, pulling by the hair, hitting, beating, kicking, burning, biting, strangling, causing piercing wounds, injuring genitals, torturing, killing.[1]

Even though there shouldn’t be violence against women in the modern society, including torturing of women, it does occur on very many instances. The analysis of registered cases of domestic violence by the police showed that 81% of the victims are women.[2]

Political and institutional developments

The Ministry of Social Affairs has played a great role in prevention of violence against women and domestic violence in Estonia – their development plan lists prevention of violence against women and domestic violence as one of their policies. The Ministry of Social Affairs is developing the services aimed at the victims of violence against women as well as domestic violence, increasing the competence of specialists and is focusing on changing the views of the people and increasing the awareness of the public in their preventative work.[3]

The work schedule of the Ministry of Social Affairs for 2012 had specifically noted actions for prevention of violence against women and domestic violence:

• Coordination of the Norwegian program (“Prevention of gender-based violence and human trafficking”) – the actions have been initiated and coordinated.
• Preparation of the domestic violence module of the safety survey – the questions of the module have been compiled and submitted with the Statistical Office.
• Implementation of the part containing violence against women and domestic violence of the “Development plan for reducing violence for 2010-2014” – the activities that are the responsibility of the Ministry of Social affairs regarding prevention of violence against women and domestic violence and helping the victims have been carried out.[4]

In 2012 the Minister of Justice Kristen Michal repeatedly turned the attention of the public to the problem of domestic violence in Estonia. In his press release of 2 March 2012 the Minister of Justice emphasises: “There is a lot of domestic violence and only a portion of the instance make it to the police. When elements of a crime of violence have occurred, then the initiation of proceedings is no longer a matter of choice. It is a obligatory. This is the message, which I ask you to carry on and be consistent with.”[5] In his press release of 24 April 2012 the Minister of Justice repeated once more that in 2012 the main issue in reduction of violence is domestic violence.[6]

In 2012 the topic of women’s rights and violence against women was discussed more in the course of public discussion. The Minister of Foreign Affairs Urmas Paet has emphasised that promotion and protection of human rights is a priority among Estonia’s interior and foreign policy and that Estonia would pay a great deal of attention to the rights of women and children, to the fight against impunity, to gender equality, to rights of indigenous people as well as to protection of freedom of expression upon being chosen to become a member of the UN Human Rights Council 12 November 2012.[7] Previously, the UN Universal Periodic Review on Estonia was carried out in 2011, where Estonia was also given recommendations regarding torture. More precisely, the recommendations expressed concern with the definition of torture (Hungary) and recommended amending the penal code in order to guarantee complete compliance with international provisions prohibiting torture (Iran).[8]

At the same time Estonia has not expressed interest in joining the 7 April 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence. Even though Estonia participated in developing this convention, the political spheres and parties in Estonia have not shown willingness to acceding to this convention. Acceding to this convention would significantly improve the protection of victims of violence against women in Estonia. The purposes of this convention are to: a) protect women from all forms of violence, prevent violence against women, punish for violence against women, eradicate violence against women and domestic violence; b) facilitate eradication of all forms of discrimination against women and improve de facto equality of women and men, to achieve this also by empowering women; c) design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence; d) promote international co-operation with a view to eliminating violence against women and domestic violence; e) provide support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence.[9]

Acceding to this convention would show Estonia as mindful of its duty of care to prevent violence against women, to investigate the acts of violence that have taken place, to punish the persons who have carried out the violence and to assist the victims.  Accession to this convention would mean that Estonia has to bring its legislation into compliance with the convention, which means making amendments to civil, criminal and procedural law, allocating protective measures and increasing efficiency of investigation and prosecution of the criminal offenders. Thus the accession to this convention would mean a complex approach to amendments to acts of law, however, this can only occur if there is a readiness on the part of the state. Accession to the convention would be a clear message to the society from the state of Estonia: that the state cares about its people and carries out its duty to provide the protection of human rights. There could be several reasons why Estonia has not wished to accede to this convention. One of them could be the lack of political interest for this topic as it is not a politically attractive one. Another could be the lack of financial means and resources, which are necessary for implementing the protective measures required by the convention.

Legislative developments

There were no changes in legislative development in 2012 which would have facilitated the absolute ban of torture. According to § 122 of the Penal Code torture is considered to be continuous physical abuse or physical abuse which causes great pain and is punishable by a pecuniary punishment or up to five years’ imprisonment. Estonian legislation does not take the victim’s gender, age or health into consideration when determining the degree of the offence, therefore § 12 of the Penal Code is not compatible with the prohibition of torture stemming from Article 3 of the European Convention on Human Rights and the determining the degree of the criminal offence. The prohibition of torture stemming from Article 3 is universal and covers both physical and psychological suffering. Torture means wilful inhuman treatment which causes very serious or cruel suffering, and degrading or punishing is such as to cause fear, despair and humiliation in the victim. The duration of the treatment, its physical and psychological effect and the victim’s gender, age and health are taken into consideration when determining the possible degree of torture.[10]

Court practices

Court judgments that entered into force in 2012 show the different ways that torturing of women has been carried out. In one instance the man kicked his partner’s various body regions with his hands and feet, pulled her by the hair, strangled and shoved her. Within three years this took place on 12 occasions, which were also all documented. As a result of the torture the woman had strangulation marks on her neck, haematoma on her body, a broken tooth, injuries, and she lost consciousness on one occasion.[11]

Looking at the decisions, which reached their final decisions and came into force in 2012 where a person was found guilty of torture according to § 122 of the Penal Code, it transpires that the women that were the victims of torture have been the wives, partners, mothers, daughters and mothers-in-law of the accused persons. Several of the victims have been under-age. Therefore, it could be said, upon viewing the court decisions which came into force in 2012 where one person was found guilty of torturing another, that the gender and age of the victims was definitely one of the reasons why these persons fell victim to torture. Unfortunately, Estonian court practice does not indicate that the victims’ gender, age or health was a factor in determining the degree of punishment. However, a developed court practice can be pointed out, according to which a persistent physical abuse of a woman is qualified as torture. It transpires from decisions that came into force in 2012 that court practice of cases, where a person was found guilty of torture according to § 122 of the Penal Code varies in different areas of the country. For example, Harju County Court, Tartu County Court and Viru County Court have made decisions, where a persistent physical abuse of a woman is qualified as torture. At the same time in 2012 there were no decisions made by Pärnu County Court where a person was found guilty of torture according to § 122 of the Penal Code.[12] Such variability of court decisions in various areas of the country may refer to the fact that torture may not be afforded attention in proceeding domestic violence cases within jurisdiction of Pärnu County Court or that persistent physical abuse in domestic violence cases is not qualified as torture.

Statistics and surveys

In 2012 the 2011 report on implementation of the “Development Plan for reducing violence for years 2010–2014” was published by the Ministry of Justice, according to which 1939 crimes of violence were registered in 2011, which could be associated with domestic violence. The vast majority of these cases consisted of physical abuse cases (1508), which constituted 200 more cases than the previous year.[13]

The Ministry of Justice published a criminal policy survey on crime in Estonia during year 2011 in 2012, which reflected upon issues of domestic violence in Estonia. The survey established that domestic violence made up 4.6% of all criminal offences and 26% of crimes of violence, and that the physical abuse of family members or partners in 2011 increased by 17%. 3% of domestic violence cases were considered torture according to § 122 of the Penal Code, however, these cases made up 84% of cases based on this paragraph.[14] The analysis carried out by the police (Paabo and Aru, 2012) about registered cases of domestic violence, the offenders and the victims showed that 81% of the victims were women and 19% were men.

Residents of Estonia do not consider crime to be the main problem the state is facing. In the spring of 2012 the Estonian people considered more important problems that the state is facing to be inflation, unemployment and problems with economy.[15] Therefore, it can be concluded from the survey that people do not perceive the effect that violence has on society, and the violence against women, including the problem of women who have fallen victims to torture as the problem of the society.

Good practices

One example of a good practice can be considered the activity of women’s shelters in Estonia who assist women who have fallen victim to domestic violence, by offering accommodation and counselling. There are currently ten women’s shelters in Estonia offering complex services to women (if necessary also to their children) who have experienced violence.[16]

Another example of a good practice is the Police and Border Guard Board (the PBGB) paying more attention to prevention of violence. In 2012 the PBGB carried out a project called “Date violence”, which aimed to raise awareness of date violence as a serious social problem, and to create a positive approach condemning violence among the youth (10.-11. form students).[17] In addition to that the PBGB initiated a project in 2012 called “Creating safety together!” which aims to increase efficiency of cooperation between organisations offering assistance on a local level when domestic violence does occur – the police, the prosecutor’s office, the local governments (including social workers and child protection officials), the victim support, shelters, the health care institutions. The target group of this project are police officers, prosecutors, social workers and child protection officials, health care professionals, victim support workers, workers and women’s shelters.[18] The preventative work of the PBGB is a good example precisely for the reason that the target groups are very different.

Noteworthy public discussions

On 22 November 2012 a public sitting of Social Affairs Committee of the Riigikogu took place, which discussed the current situation of violence against women, assisting the victims of violence, the activity of law enforcement authorities when processing cases involving violence against women and domestic violence, as well as measures planned by the state which would enable to deal with this problem more efficiently.[19]

Trends in 2012

In 2012 the topic of violence against women started to receive more attention in Estonia. Briefing took place from March 26^th to April 10^th at the Tallinn Central Library in cooperation with Tallinn Crisis Centre for Women and the Estonian Women`s Shelters Union.[20]

On March 1^st, 2012 Naiskodukaitse  (Women`s voluntary defence organization), the Estonian Academy of Security Sciences, Women’s Network of Estonian Police a family event “From Women to Women”, which aimed to introduce women to options for increasing their safety as well as the safety or their loved ones and to offer opportunities to learn specific skills and knowledge. This family event gathered funds for the national hotline 1492 for the Estonian Women’s Shelters Union, which women who have experienced violence can call.  [21]

Young girls of 14-18 years of age have become a separate target group in prevention of violence that have been paid attention to recently. Training took place in Ida-Virumaa (in Jõhvi and Sillamäe) for Russian-speaking youth, which a total of 50 girls attended, and in Lähte for Estonian-speaking youth, which 14 girls attended.[22]

Several severe cases of violence against women were written about in the media in 2012, and there were interviews[23] as well as comments made by specialists.[24]

In conclusion in can be said that 2012 was characterised by affording more attention to combating violence against women, prevention of violence and assisting the victims of violence.

Recommendations

• Analyse the reasons why court practice regarding torture varies in different regions and work toward harmonizing it.
• Awareness raising events should be continued with, especially among prosecutors and investigators who are responsible for bringing torture cases to court.
• Awareness raising events regarding victims’ rights should also be continued with. The activities so far have shown positive results, but there is still more room for improvement.