1 - peatükk

Prohibition of torture, inhuman or degrading treatment and punishment

Author: Epp Lumiste

During the years 2014–2015 several events within the jurisdiction of Article 3 of the European Convention on Human rights (the Convention) have taken place in Estonia. The legislator has carried out a reform of the Penal Code. The Chancellor of Justice has repeatedly drawn the public’s attention to shortcomings in guaranteeing human dignity in closed institutions. The European Court of Human Rights (ECtHR) has also passed a judgment about Estonia, where a breach of Article 3 was detected.

In order to give an overview of developments within the scope of Article 3, we must first remind ourselves that the law in question states that nobody can be tortured or inhumanely or degradingly treated or punished. The law in question offers protection for a person’s human dignity and guarantees it in situations of detention.

Since most disputes arise from situations of detention, all places where people whose freedom has been taken away are kept or can be kept have to be considered places of detention.[1] This does not only include prisons but also centres for children at risk and other closed institutions a child or an adult is forbidden to leave and where his freedom of movement is restricted. The aforementioned institutions have been having problems with guaranteeing human dignity and applying methods of restraint on persons for years. There have been no noteworthy developments in the observed period.

Political and institutional developments

According to the Chancellor of Justice’s 2014 and 2015 reports[2] the Chancellor of Justice made control visits to custodial institutions (including centres providing rehabilitation services to minors and to institutions providing psychiatric help). Special attention was afforded to conditions of restraint, and separation rooms, but also to rest rooms and/or accommodation areas of persons. Already in 2014 the Chancellor of Justice drew attention to shortcomings of psychiatric care providers where there was risk of human dignity not being guaranteed.

Upon analysing the Chancellor of Justice’s 2015 report it is clear that there have not been significant changes in this area in 2015.

In 2009 the Chancellor of Justice addressed Riigikogu and drew attention to problems related to restriction of personal freedom in rehabilitation institutions for youths with addiction disorders. The Chancellor of Justice has also drawn attention to the same problem in 2010.[3] Despite attention having been repeatedly drawn to this topic the legislator has still not established a legal basis for restricting children’s freedom while offering the rehabilitation service.

In other words, in 2015 there is still no legal basis for restricting a child’s freedom against his or her will. If a child is sent to a centre providing rehabilitation service (in Tallinn or Jõhvi), where a child is forced to stay against his or her will and has no option to leave the institution, then the aforementioned may essentially be a breach of requirements stated in Article 3. Upon analysing the reports of the Chancellor of Justice over the years, it is apparent that centres for children at risk have the right to send the child to a separation room or apply methods of restraint on him or her, however, in order to apply such measures there ought to be a clearly worded basis for it stated in legislation.

Legislative developments

On 1 January 2015 the changes made due to the Penal Code reform came into force. The legislator intended to limit the possible overlap of necessary elements of misdemeanours and criminal offences and eliminate excessive punishability.[4] In addition to the aforementioned, several necessary elements of an offence, and bases for punishability for legal persons were altered.

It is remarkable, in the light of the law under analysis, that § 122 of the Penal Code (torture) was repealed. As it proved problematic to give meaning to “consistent physical abuse” in practice, the punishment for physical abuse (§ 121 of the Penal Code) was increased and the article on torture was repealed. However, the legislator added the necessary elements of torture to the Penal Code (§ 2901), if it has been committed by an official for the purpose of extracting testimonies, punishing, intimidating or forcing a person, or for discriminating against a person.

By adding a new provision the legislator has established necessary elements for a criminal offence in Estonian law that is based on the principle of torture in the international convention, while also preserving similar necessary elements. It is also a welcome development that the necessary element of torture that came into force in 2015 also contains causing moral suffering without physical interference with the integrity of the person. This means that torture is not only understood to mean causing physical pain, but also mental pain.

The reform of the Penal Code also increased the upper limit of punishment for torture, which, instead of the earlier 5 years of imprisonment is now 7 years of imprisonment. By increasing the upper limit of the punishment Estonia has taken into consideration the recommendation in point 8 of the report by the European Committee for the Prevention of Torture (CPT)[5] to adjust the upper limit of the punishment for torture in a way that takes into consideration the serious nature of the criminal offence. It is still questionable whether increasing the upper limit of the punishment by just two years corresponds to the serious nature of the offence.

In addition to amendments to the Penal Code there were also amendments made to § 407 of the Code of Criminal Procedure – minors were guaranteed right to independently file appeals when it had to do with a person’s location to special schools.

Court practice

The law in question comes up in court practice in Estonia mostly while processing applications submitted by the detained. Regarding the so-called security measure applied by the prison (playing loud music to prevent inmates from communicating with each other) the Supreme Court found in its 2014 judgment that carrying out the punishment for the crime is no justification for interfering with the person’s fundamental freedoms without a legal basis.[6] The court thereby confirmed that the prison’s regulations cannot establish limitations that breach a person’s fundamental rights or infringe on their human dignity, if such authority is lacking in the act of law. The court also cited that communication among prisoners is possible to achieve by solutions of civil engineering.

There have been several so-called floor space disputes discussed at the Supreme Court, which originated in the ECtHR judgment Tunis v. Estonia, where breach of Article 3 of the Convention was identified.[7] The Constitutional Review Chamber of the Supreme Court evaluated the size of the floor space required by the internal rules of the prison to be compatible with what was expressed in judgment of the ECtHR.[8] The Supreme Court admitted that staying on just 2.5 m2 long term can be a breach of human dignity, however, if supplementary conditions are present, 2.5 m2 of floor space for the inmate may not be seen as a breach of human dignity.

The trend of submitting floor space disputes continued in 2015, but the Supreme Court repeated the position it had expressed in 2014. Although the court primarily analysed the timeliness of the complaint submitted in its judgment no 3-3-1-20-15, the Supreme Court emphasized that from the point of view of guaranteeing human dignity, if the person is kept at the place of detention in allegedly inhuman conditions long term, it can be presumed that he perceives the nature of conditions that breach human dignity over a reasonable time. Therefore, the inmate cannot indefinitely hold off submitting his application for damages, but must turn to the court within reasonable time.

In order for the floor space to be in breach of human dignity, the sum of all conditions must be assessed together. This means that if the person has the obligation to stay in the chamber only at night, but at other times is guaranteed opportunities to take walks, the chamber is ventilated and has natural light, then 2.5 m2 of floor space per inmate is not in breach of human dignity. In other words, if the detainee is only guaranteed 2.5 m2 of floor space, it cannot automatically be concluded that Article 3 of the Convention has been breached.

In addition to national courts, the ECtHR analysed in the time period in question (2014–2015) complaints regarding Article 3 of the Convention lodged against the Republic of Estonia on two occasions. On one occasion the ECtHR found that there had been a breach of a fundamental right stated in Article 3, and on another it found that there had not been a breach. In February of 2014 the ECtHR analysed methods applied on a detainee in a detention institution (including being chained to a bed, and use of pepper gas in an enclosed room) and found that the sum of methods used amounted to a breach of Article 3 of the Convention.[9] Unlike an earlier judgment (Julin v. Estonia) it found that also being chained to a bed for 4 hours would cause the detainee physical discomfort.

In October of 2014 the ECtHR did not detect breach of Article 3 insofar as the applicant was unable to prove that unauthorized persons were present when he was being searched.[10] Although no breach was detected it can be concluded from the judgment that if the prison guards had carried out the search of the prisoner in a way that others had been witness to it, it would have taken place in a manner that reduced human dignity of the detainee.

As can be concluded from the aforementioned judgments the question of human dignity and degrading treatment continues to arise from methods of force applied by prisons, security measures and human dignity of inmates in connection with the floor space. Even though the purpose of these methods is to guarantee discipline in prison, the states (including prisons) have the responsibility to adhere to obligations taken under the Convention while applying these methods.

Noteworthy public discussions

From the point of view of guaranteeing the law in question the most noteworthy public discussions might be the published articles based on the Chancellor of Justice’s annual reports.

In March of 2015 heightened attention was afforded to guaranteeing human dignity of persons located in special welfare institutions.[11] In the appraisal of the Chancellor of Justice increased attention should be paid to leisure time of persons and guaranteeing their privacy.

The need to make amendments to acts of law is also indubitably due to the ECtHR judgment no 25820/07,[12] where the Court detected a breach of Article 3 regarding the sum of conditions at a care home. For breach of Article 3 to occur the person’s suffering and humiliation must be such as to exceed the necessary purpose of treatment or punishment. In the aforementioned judgment the ECtHR found that the bad quality of the food, the questionable cleanliness of bathing facilities, lack of elementary toiletries or insufficient access to the toilet were in sum degrading to human dignity. This means that also the conditions of care homes in Estonia must be observed in their sum and it must be assessed whether these conditions are in compliance with the rights guaranteed by Article 3 of the Convention.

In September of 2015 the Chancellor of Justice consistently drew attention to the breach committed by the state in restricting the freedom of children in institutions providing rehabilitation services.[13] Considering his constant drawing of attention to restricting freedom of children in institutions providing rehabilitation services and the persons placed in care homes, the legislator ought to get to work on relevant amendments to acts of law in the near future.

The shortcomings in welfare institutions and institutions offering rehabilitation services for children in Estonia pointed out by the Chancellor of Justice meet the aforementioned conditions, which is why the Chancellor of Justice’s accusations to the legislator are justified, as is continually drawing the public’s attention to these shortcomings.

In addition to the aforementioned, on 1 October 2015 the public’s attention was also drawn to the living conditions of inmates in prisons in Estonia. The newspaper Postimees wrote on its website that ca 300 inmates have submitted a claim for inhuman treatment. Various court instances have awarded compensatory sums of 315–2630 euros.[14] It is remarkable that the courts have deemed sums of less than a thousand euros adequate compensation for 256 days of inhuman treatment. Whereas we should remind ourselves that the ECtHR has awarded inmates 10,000 euros as adequate compensation for breach of Article 3 of the Convention.[15] Considering that the differences in the size of compensation are that vast it is still questionable whether compensation awarded to prisoners for breach of Article 3 is proportionate and adequate.

Trends

The 2013 annual report of the Estonian Human Rights Centre recommended the state establish a concept for torture which also involves mental abuse. The recommendation has been put into force with the amendments to the Penal Code, which came into force in January of 2015; the concept of torture in § 2901 of the Penal Code also includes causing consistent mental pain.

Recommendations:

  • It is necessary to establish powers on a legislative level for detaining and applying methods of restraint as well as restricting freedom of minors in the course of providing rehabilitation services to minors.
  • In order to guarantee human dignity of persons in care homes the conditions of care homes must be assessed in their sum and the persons located there must be guaranteed human dignity; amendments on legislative level must be made, if necessary.
  • Compensations for inmates must be proportionate and adequate to the extent of the breached rights.

[1] Õiguskantsleri 2014. aasta tegevuse ülevaade [2014 yearly report of the Chancellor of Justice]. Chancellor of Justice. Tallinn 2015. Available at: http://oiguskantsler.ee/sites/default/files/ylevaade_2014.pdf.

[2] Õiguskantsleri aastaülevaade 2014/2015. Laste ja noorte õigused [Chancellor of Justice’s annual report 2014/2015. Rights of children and youths]. Available at: http://oiguskantsler.ee/ylevaade2015/laste-ja-noorte-oigused, and Õiguskantsleri 2014. aasta tegevuse ülevaade [Chancellor of Justices yearly review for 2014]. Available at: http://oiguskantsler.ee/sites/default/files/ylevaade_2014.pdf.

[3] Õiguskantsleri aastaülevaate ettekanne Riigikogus, oktoober 2011 [Presentation of the Chancellor of Justice’s annual report at Riigikogu, October 2011]. The Office of the Chancellor of Justice. 2010. Available at: http://oiguskantsler.ee/et/ylevaade%202010.

[4] KarS jt seaduste muutmise eelnõu seletuskiri [explanatory memorandum to draft legislation]. Available at: http://www.riigikogu.ee/index.php?op=ems&page=eelnou&eid=78433b29-8b2f-4281-a582-0efb9631e2ad&.

[5] Concluding observations on the fifth periodic report of Estonia, adopted by the Committee at its fiftieth session (6-31 May 2013). Committee against Torture. Available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/EST/CO/5&Lang=En.

[6] See Administrative Law Chamber of the Supreme Court judgment no 3-3-1-17-14 p-s 14.

[7] European Court of Human Rights. 9 January 2014 judgment no. 429/12.

[8] See the Constitutional Review Chamber of the Supreme Court judgment no 3-4-1-9-14.

[9] European Court of Human Rights. 13 February 2014 judgment no. 66393/10.

[10] European Court of Human Rights. 31 October 2014 judgment no. 1574/13.

[11] „Õiguskantsler: inimväärikus ei pruugi haigete hooldamisel alati tagatud olla“ [Chancellor of Justice: human dignity may not always be guaranteed while caring for the ill]. Postimees. 12.03.2015. Available at: http://tervis.postimees.ee/3120157/oiguskantsler-inimvaarikus-ei-pruugi-haigete-hooldamisel-alati-tagatud-olla.

[12] European Court of Human Rights. 17 March 2015 judgment no. 25820/07.

[13] „Riik rikub lapsi rehabilitatsioonikeskustes hoides seadust“ [The state is breaking the law by keping children in rehabilitation centres]. Pealinn. 16.09.2015. Available at: http://www.pealinn.ee/newset/riik-rikub-lapsi-rehabilitatsioonikeskustes-hoides-seadust-n152590.

[14] „Ligi 300 vangi nõuab alandava kohtlemise pärast hüvitist“ [Nearly 300 inmates demand compensation for degrading treatment]. Postimees. 1.10.2015. Available at: http://www.postimees.ee/3345571/ligi-300-vangi-nouab-alandava-kohtlemise-parast-huvitist.

[15] Tunis v. Estonia. 19 December 2013 judgment no. 429/12.


Author

  • Vandeadvokaat Epp Lumiste omandas 2005. aastal bakalaureusekraadi õigusteaduses Audentese Ülikoolist, 2007. aastal magistrikraadi International University Concordia Audentesest ja 2010. aastal LL.M kraadi George Washington University’st Ameerika Ühendriikides. Oma õpingutes keskendus ta rahvusvahelisele õigusele, täpsemalt rahvusliku julgeoleku õigusele ning inimõigustele. Alates 2017. aastast töötab Epp advokaadibüroos ALTERNA.

     

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