Right to Personal Liberty

Marianne Meiorg, Kristi Rekand

2011 was a year of activity in the field of right to personal liberty. Several amandments of acts were initiated, two of them were passed (the Mental Health Act and the Social Welfare Act). The Supreme Court also specified matters concerning compensation for unjust detention with its decision. The decision of the Supreme Court deeming the provisions that allow post-sentence preventive detention to be in contradiction with the Constitution can be pointed out as an important development. On the whole it can be said that the developments that occurred in 2011 increased the level of protection of right to personal liberty in Estonia.

 Political developments

There were several political initiatives in 2011 regarding the Mental Health Act as well as detention and treatment of persons in closed institutions. The Government is currently discussing two draft acts that have not made it to Riigikogu yet. One of them foresees replacing part of the sentence of imprisonment of sexual offenders with treatment and the other supplies the option of placing an underage person in dependency treatment against his or her will.[1] The proceedings for amending the draft act amending the Mental Health Act were initiated in Riigikogu on September 12^th; on February 15th, 2012 it was already passed in Riigikogu.[2] The explanatory memorandum states that the act regulates matters concerning a person’s right of ownership, it changes and implements the provisions on application of means of restraint and specifies matters pertaining to surveillance.[3]
In the context of this specific human right the regulation concerning means of restraint relates most closely; it also concerns the topic of prohibition of inhuman treatment (also see the chapter on torture and other inhuman treatment).

The Mental Health Act gives the option of applying means of restraints on a person who has been placed in a closed institution.[4] Application of means of restraint constitutes as a limitation of right to liberty stated in section 20 of the Constitution of Republic of Estonia^[5] and Article 5 of European Convention on Human Rights[6]. On the other hand, both provisions allow for detention of persons with mental disorders if the person presents a danger to himself or herself or to other persons.
The amendments to the Mental Health Act that were recently passed in Riigikogu must adhere to these basic principles as well as to the relevant international standards.^[7] The means of restraint, according to the Mental Health Act, are isolation and physical restraint. The former means placement of a person in an isolation room and the latter means the use of mechanical means (straps, special clothing) in order to restrict the liberty of movement of a person in an isolation room under supervision of medical staff (Mental Health Act, § 14 subsection 1 and 2). The explanatory memorandum to the recently passed draft act amending the Mental Health Act emphasises the principle of using minimal force on the patient and imposing as minimal a breach of the person’s dignity as possible while not endangering his or her psychological of physical health.^[8] The explanatory memorandum refers to Chancellor of Justice’s several verification visits to psychiatric departments where he has come across breaches of persons’ basic rights in the application of means of restraint.
Therefore the following amendments have been planned:[9]

• Legalisation of uniform principles of application of means of restraint (since means of restraint are usually set out in the hospital’s internal provisions, which may significantly vary from hospital to hospital);
• Additional obligation of informing – it is important from the point of view of international standards that in regulation of application of means of restraint the least restrictive method for the patient is legalised. It is also essential to inform of the reasons for application of a means of restraint and the specific activities that are applied as a means of restraint. The Act is amended with an illustrative list of activities (conversation, persuasion and oral pacification), which have to be utilised before applying means of restraint, and only if these measures have not sufficed may the means of restraint be applied. In addition, the doctor has the obligation to have a conversation with the patient after the application of a means of restraint with the objective of avoiding it in the future and to notify the patient of his or her rights concerning the application of the mean of restraint;
• The obligation of keeping a register – the obligation of keeping an in-hospital register on application of means of restraint is necessary as it enables statistical appraisal of the number, extent and duration of the restraints. Keeping a register also enables prevention of abuse;
• Specifying the applier of means of restraint – it can be pointed out as a positive fact that the person applying a mean of restraint on someone with mental disability has to be the provider of the welfare service or in other words the doctor. The welfare service provider has presumably received suitable training. The draft rules out intervention by external help providers (police, security personnel) in the course of providing a welfare service;
• Amendment of the list of means of restraint (physical restraint and restraint with medication or chemical restraint were added) as well as making the list more specific;
• Specification and documenting of surveillance over application of means of restraint.

The fact that in documenting the application of means of restraint the nature and compulsiveness of keeping the register have been omitted may be seen as a negative aspect of the adopted Act. This register system containing clear entries facilitates surveillance over application of means of restraint while providing an overview of their extent. The Chancellor of Justice has repeatedly remarked on his visits that the existence of the register of means of restraint has to be guaranteed in order to have an overview of the number of occasions of restraint specified by the type of restraint and their duration.[10] It is important to place the obligation of keeping the register on the welfare service providers by legislation stating the method of keeping a register, the necessary data and other details. The obligation of submitting periodic reports on restraints to a supervisory board (whether the Health Board and/or the Chancellor of Justice) should also be considered. As a good practice the recommendations/standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) could be the basis to regulation of the means of restraint.[11]

The right to personal freedom is being approached from a completely different aspect by the State Liability Act[12]  that is currently under discussion in Riigikogu – it also deals with compensation for unjust deprivation of liberty. The new act would combine the current regulation of state liability and the Compensation for Damage Caused by State to Person by Unjust Deprivation of Liberty Act (AVVKHS). It would also change the scheme of paying compensation for unjust deprivation of liberty. The compensation so far amounts to a certain sum of money for each day (whether the damage can be proved or not), but in the amended version the damage that cannot be proved amounts to a fixed sum and the loss of profit is covered by the compensation.^[13] Passing this act would certainly make the regulation of compensation much clearer as different types of state liability that result in a person’s right to claim compensation are brought together into a cohesive act.

Legislative developments

The amendments of the Social Welfare Act that came into force in 2011 also concern the rights of the patients. In the context of right to personal liberty the relevant changes are the ones concerning the general and special care homes (also see the chapter on torture and other cruel treatment).^[14] Social Welfare Act’s § 20² states that restriction on freedom of movement may be used only on those persons who have been placed in the establishment by a court order and persons who receive 24-hour special care service.^[15] One of the new additional requirements states demand for proof of immediate danger to the person or (as an addition by the amendment) other persons, physical integrity or physical freedom. It still hasn’t been regulated who this immediate danger has to be caused by. The other additional requirements (which have remained the same) are the insufficiency of other methods and the fact that the doctor has not precluded the application of isolation for that particular person. Placing a person in an isolation room is the only mean of restriction of freedom of movement in this situation (Social Welfare Act § 20²), application of other means is not permitted. Application of isolation is decided by a reasoned written decision of the special welfare service provider and a report must be prepared about it (Social Welfare Act § 20²). A provider of 24-hour special care service who is in possession of an isolation room must also have a special register on the use of it and the client has the right to access the entries made about him or her in the register, receive copies of it and add explanatory notes about the case in the register. This requirement stems from CPT’s report on Estonia at its visit in 2003.^[16] However, neither the CPT standards nor the current legislation state the form of the register. The Chancellor of Justice’s report published in 2011 about the previous year states that the registers kept at welfare establishments vary to a great degree. Registers are kept in a digital form as well as in paper form and that in itself can be considered a threat to safety as there is no uniform system in place.^[17]

The Chancellor of Justice also referred to the special welfare provider’s obligation to compile a brochure covering the rights of the person in his latest report.^[18] § 11³¹ subsection 1point 1 of the Social Welfare Act foresees that in addition to the person his or her legal representative is also informed of the house rules of the welfare institution and the person’s rights and limitations to his or her personal freedoms while receiving the service. The brochure has to contain information about all kinds of possible complaint systems, including information about the opportunity to turn to other relevant institutions (Social Insurance Board, county governor, Health Board, Chancellor of Justice, the court).^[19] The complaints play an important part in guaranteeing the quality, it is a means of offering feedback. Complaints are beneficial if they are processed and analysed according to principles of quality management.

 Court practice

The Supreme Court made important decisions in 2011 concerning the system of compensation for unjust deprivation of liberty, which will contribute to better protection of personal liberty.
The first case of V. Õiglane concerning unlawful arrest of 171 days was dealt with in the human rights’ report of 2010.^[20] The Supreme Court now found that since the Constitution demands just compensation for the person who had been unjustly detained and thereby caused damage to, the calculation set in the AVVKHS, which only includes the number of days detained and nothing else, may not be in concordance with the Constitution.^[21]

In the second case the Supreme Court found that in compensating for damages the AVVKHS affords a different treatment to persons whose offences expire while they are detained during the pre-trial procedure or a preliminary hearing in criminal proceedings and those whose offences expire while they are detained for the duration of court hearings (following the pre-trial procedure).^[22] In the former case the person is entitled to the compensation, in the latter case not.
The court found that differentiating between people based on whether the reason for detention disappeared before or after the preliminary hearing is not justified according to the equality principle stated in the Constitution. One of the most remarkable developments in 2011 was the Supreme Court’s decision declaring post-sentence preventive detention to be in breach of the Constitution.^[23] This topic was also discussed in the human rights report for 2008–2009^[24]  where the same conclusion (that such detention is probably not justified from the point of view of human rights) was also reached. The Supreme Court has taken the position that post-sentence preventive detention does not differ in its nature and regime from other types of imprinsonment. Neither differ the services and methods that the prison should offer considering the purpose of detentin – turning the person onto a more law-abiding behaviour and the protection of public order. The Supreme Court criticises the unclear nature and vagueness of the provisions regulating post-sentence preventive detention. Similarly to the criticism offered in the human rights report for 2008–2009 the Supreme Court finds that the prognosis that the judge would have to make about the person’s criminal tendencies in the future to apply the post-sentence preventive detention is too much of a conjecture and therefore potentially a great danger to right to personal liberty. As a conclusion, the Supreme Court came to the decision that post-sentence preventive detention does not correspond to any legal basis for deprivation of liberty stated in the Constitution and is therefore in contradiction with the Constitution as well as invalid. This decision by the Supreme Court is undoubtedly a positive development in protection of human rights. It is regrettable that in a situation where the court of highest instance expressed doubt whether post-sentence preventive detention was in accordance with the Constitution already at the draft stage of the act the Ministry of Justice and later Riigikogu decided to adopt this amendment anyway. The Supreme Court referred in its opinion to the draft to the possibility that the amendment is likely to bring about court disputes and therefore refrained from a more detailed analysis in the stage of processing the draft act.^[25] The draft act and the amendment that had come into force included several problems, which were addressed in the processing stage by several experts and which was referred to by the Supreme Court in its 2011 decision, which is why the amendment should never have been adopted in this form. Hopefully now the state will focus on changing the regime of imprisonment by adopting and increasing efficiency of measures for decreasing dangerousness of a person already at the time of the punishment, as the Supreme Court also advises to do in its decision.

Statistics and surveys

An overview of Tallinn and Tartu circuit court cases in administrative matters was published in 2011.[26] The overview concluded, among other things, that the court had a great leevay in deciding compensation for non-patrimonial damage accrued as a result of unlawful detention. The court has to consider in exercising this right “the severity of the offence, the insensity of suffering and pain caused to the person as well as the court practice in similar cases.”^[27] Whereas, according to the court practice, only those restrictions to personal liberty that intensified during the placing of the prisoner in the punishment cell are to be compensated for, in comparison to restrictions these rights were subjected to at the time of his or her imprisonment.

Conclusion

The greatest positive development in protection of human rights in 2011 was probably declaring post-sentence preventive detention to be in contradiction with the Constitution. Another important development had to do with the new draft act amending the regime of compensation for persons who were unjustly detained. The greatest number of amendments (those already passed and those that are being discussed) were made to legislation regulating mental health services and social welfare; particularly specifications and amendments made to provisions regarding means of restraint. This, undoubtedly, is a step towards better protection of human rights. The draft act that is still being discussed in Riigikogu whereby sexual offenders have the option of receiving treatment as an alternative to imprisonment, which may, in case of thought out regulation and application improve their chances of reintegration into society once their sentence has been carried out, also has the chance of providing better protection of human rights.

Recommendations

• Continuous training for staff of the special welfare services establishment who have the right to apply the means of restraint. Among other things the staff should receive training on how to handle excited or violent clients (for finding the method most suitable for the person).
• Adopt the obligation of keeping a register on application of means of restraint for providers of welfare services. This obligation has not been fulfilled properly and on uniform basis by the providers of welfare services or the providers of mental health services so far.
• Welfare establishments should compile understandable information about the house rules of the welfare establishment, the clients’ rights and obligations as well as limitations to their rights.
• A precise, uniform and effective order of processing and investigating complaints and an order of proceedings must be established. The clients of the welfare establishment have to be notified of this by explaining clearly and understandably the order for filing in-house complaints as well as presenting the options and the order for filing complaints outside the establishment.
• All organisations providing welfare services must have an in-house quality system, an order of settling complaints and disputes and methods for gathering feedback from clients / receivers of services.
• Adopt the new State Liability Act while keeping in mind rules on human rights for compensation for unjust detention.
• Review rehabilitation services available during imprisonment and develop the efficiency of measures decreasing the level of dangerousness of the prisoner at the time of imprisonment.