Article 3 of the European Convention on Human Rights (the ECHR) states that no one can be tortured or inhumanely or degradingly treated or punished. Let it be reminded that this right also protects the person’s human dignity.
In the period of reporting 2016–2017 the disputes concerning Article 3 of the Convention in Estonian legal sphere focused on detention situations and primarily on guaranteeing of sufficient floor space. Therefore, this report investigates in detail how treatment with dignity is guaranteed for persons in detention facilities. There are several closed institutions, including prisons, police detention facilities, detention facilities for aliens, health care institutions providing involuntary treatment, etc.
In order to provide an overview of developments in the sphere of Article 3 of the Convention in 2016–2017 we will analyse the court practice, legislation as well as public discussions.
Political and institutional developments
In the previous reporting period (2014–2015) the Chancellor of Justice made control visits to custodial institutions. In the current reporting period the Chancellor of Justice continued this practice. In her 2016 Annual Report the Chancellor of Justice has evaluated the protection of basic rights of the detainees in closed institutions.[1] Chancellor of Justice’s Annual Report covers actions up to 31. August 2017.[2] The enquiry not only had to do with guaranteeing detainees’ rights in prisons, but also at the police station, in health care institutions providing psychiatric care and, for example, at the Defence Forces of Estonia.
In case of most of the control visits made by the Chancellor of Justice it had to be, once again, admitted that most of the observation rooms (mechanical restraint rooms) of health care institutions providing psychiatric help did not meet the requirements. Therefore, it has to be said that unfortunately no remarkable progress has been made with restraint rooms since the previous report.
The various problems and shortcomings addressed in the Chancellor of Justice’s report clearly refer to the need to develop and renew not just the conditions of prisons for detainees, but to look at the broader picture – conditions that guarantee human dignity at the Defence Forces, at police detention facilities or at health care institutions providing psychiatric care should be equally contributed to.
An important aspect that needs to be considered is guaranteeing of dignity at accommodation centres for persons arriving in Estonia due to the extensive migration crisis. Therefore, it has to be guaranteed that treatment of all detained persons is lawful and the measures restricting their freedom are proportionate.
Legislative developments
After the amendments of the Penal Code reform that came into force 1 January 2015 the composition of torture in the Penal Code has not changed, neither have there been changes to the rights of detainees in the Code of Criminal Procedure.
In legislative developments we will also focus on the Mental Health Act. The Ministry of Social Affairs has initiated the concept note for the draft act to amend the Mental Health Act and associated acts. To be clear, the Mental Health Act has been in force since 1997, therefore it needs updating to fulfil modern needs. Among other things, the act does not state with sufficient clarity the rights and obligations of patients and mental health workers while providing involuntary psychiatric care with the patient’s agreement.[3]
In the concept note for the draft act to amend the Mental Health Act we will focus only on application of restrictive measures, as these can be considered to be physically restricting the freedom of movement of patients in health care institutions. The goal in creating the regulation is for the restrictive measures to be proportional, fulfilling their purpose and restricting the persons’ basic rights the least. The legislator has admitted that application of restrictive measures is a very intense breach of the fundamental right to freedom.[4] Therefore, it is clear that intense breach of fundamental rights has to be regulated on the level of acts of law, which is why the drawing up of concept note and hopefully the conclusion of the draft act corresponding to the aforementioned principles in the future is very welcome.
The topic of restrictive measures also creates the question of how the dignity of patients is guaranteed while the restrictive measures are applied and when does the use of such measures become torture or inhumane treatment. The Supreme Court has stated while following the practice of the European Court of Human Rights (ECtHR)[5] that use of handcuffs and other restrictive measures is not contrary to Article 3 of the ECHR if they are used in conjunction with lawful detention and it is not accompanied by use of excessive force and excessive exhibition to public. When using these measures the danger that the person escapes, acts violently or causes material damage also has to be considered.[6]
Court practice
In the reporting period 2016–2017 the practice of the Supreme Court concentrated on the influences of the ECtHR 2013 judgment of Tunis v. Estonia.[7] Since the aforementioned judgment the trend for submitting complaints regarding so-called floor space has been increasing.
The Supreme Court solved numerous cases concerning Article 3 of the ECHR regarding the floor space and detention conditions of detainees in the reporting period. In total the Supreme Court processed floor space disputes on more than ten separate occasions in 2016–2017. It is worth noting that the 2016 practice of the Supreme Court regarding “floor space disputes” of detainees was largely guided by the Grand Chamber of ECtHR 20 October 2016 decision in Muršic v. Croatia.[8]
We will first explain that in Muršic v. Croatia the ECtHR developed the method of calculating floor space in a chamber with several detainees according to the requirements in Article 3 of the ECHR and assumed the following positions: firstly, each detainee has to have their own sleeping space; secondly, each detainee has to have personal space of at least 3 m²; thirdly, the general space of the cell has to be such, which allows persons to freely move about in the cell.
One of the most remarkable decisions in the Supreme Court’s 2016 practice in regards to rights of detainees was the judgment no 3-3-1-83-16. In this judgment the Supreme Court changed its practice regarding calculation of floor space of a cell according to Muršic v. Croatia. The Supreme Court explained that the floor space under the sanitary equipment is excluded from calculations of floor space of the cell and whether the furniture in the cell impedes detainee’s normal movement in the cell also needs to be evaluated.
In its judgment no 3-3-1-95-16 the Supreme Court repeated the notion, that the space taken up by sanitary equipment is excluded from calculations of the floor space of the cell. In this judgment the detainee had spent 265 days in cells, where the appellant had less than 3 m2 of floor space. The Supreme Court considered that the compensation for the sum of 1500 euros for damages for breach of Article 3 of the ECHR that had taken place nearly for ¾ of the year was founded and proportional.
In its judgment no 3-3-1-15-17 the Supreme Court assumed the position that although the appellant had not been guaranteed personal space of 3 m2 this had not amounted to treatment in breach of the appellant’s human dignity. The Supreme Court came to this conclusion because the appellant had the opportunity to spend time outside the cell and was also working at the time. It is worth noting that in the opinion of the Supreme Court a short-term breach of human rights does not violate human dignity. The Supreme Court explained that the appellant spent so little time in a cell where he had less than 3 m2 personal floor space that the appellant’s detention conditions cannot be considered to be in breach of human dignity even if he had no freedom of movement outside the cell at all (see RKHKo no 3-3-1-15-17 p 18). Such conclusion might not be in concordance with Article 3 of the ECHR, which categorically prohibits detention conditions, which are inhumane or in breach of human dignity. The aforementioned opinion may send detention facilities the wrong signal – that short term breach of human dignity is allowed.
In its judgment no 3-3-1-98-16 the Supreme Court explained that the space underneath furniture does not need to be excluded when calculating the floor space of the cell, but it is important to evaluate whether the detainee is able to move about the cell in the usual way (see the judgment’s p 13). In the opinion of the Supreme Court a small deviation from the minimum requirement of floor space does not give the detainee the right to claim compensation for damage.
In its judgment no 3-3-1-16-16 the Supreme Court found that considering the relatively long duration of the treatment and the fact that the floor space granted the appellant was considerably smaller than 3 m² and the person’s opportunities from movement outside the cell were few and could not compensate for negative effects stemming from over crowdedness of the cell, the detention conditions in the cell were unlawful and in breach of human dignity.[9] Despite the aforementioned, the Supreme Court was of the opinion that appropriate compensation for breach of human dignity was 375 euros.
The Supreme Court has evaluated and considered, for example, the opportunity to spend time outside the cell, over crowdedness of the cell,[10] general conditions in the detention facility, also the opportunity to take part in activities outside the cell,[11] and the opportunity to take walks[12] as facts compensating for lack of space. Considering the circumstances that have been taken into account in practice the judgments give the impression that guaranteeing slightly less floor space than approved by ECtHR’s practice or spending a short while in conditions that breach human dignity does not give the person the right for compensation. Such judgments may send a negative signal to detention facilities that small or short-term breaches of Article 3 of the ECHR are allowed, or that they are at least acceptable in the Estonian legal order.
Noteworthy public discussions
The press often reports on the size of compensation paid to detainees for detention in conditions that are in breach of human dignity. In 2016–2017 practice of the Supreme Court the compensation according to the analysed court practice remained below 1000 euros; it was 300–800 euros on average. In comparison, the sum for moral damages in the ECtHR judgment Tunis v. Estonia mentioned above, the state of Estonia was to pay a detainee in Tallinn prison 10,000 euros. The damages awarded by the Supreme Court are more than ten times smaller.
An incident that took place at the Valga hospital in March of 2017, where a psychiatric patient who had escaped from the isolation room attacked the staff and patients at the hospital also garnered public attention. A total of 12 persons were injured. Later the criminal proceedings against the 57-year-old man were suspended and he was subjected to involuntary placement. This incident ought to painfully point to the need to change the use of restrictive measures and the need to regulate the use of restrictive measures in institutions providing psychiatric care on a legislative level.
Summary
The breaches of Article 3 of the ECHR detected in Estonia in 2016–2017 stem primarily from complaints of detainees for being held in conditions breaching human dignity, although, attention should also be paid to guaranteeing of rights of persons in other detention facilities. The Supreme Court’s change of practice in calculating the floor space of the cell should be recognized as a positive development. However, the Supreme Court’s opinions, according to which small deviations from minimum floor space or deviations lasting a short while do not excessively breach human dignity, do give a cause for concern.
The concept nte for the draft act to amend the Mental Health Act and associated acts initiated by the Ministry of Social Affairs is a welcome initiative, which would simultaneously offer a more concrete definition of the patients’ and the health care workers’ rights and obligations as well as solve the issue of patient’s freedom of movement in case of physical restriction.
Recommendations
* Adopt amendments for Acts guaranteeing human dignity of psychiatric patients upon application of restrictive measures;
* Give clear guidelines that also short-term or small breaches of Article 3 of the ECHR are unacceptable;
* Increase damages awarded for breaches of Article 3 of the ECHR, as only that way treatment of all detainees with human dignity is ensured.
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[1] Õiguskantsleri aastaülevaade 2015/2016 [Chancellor of Justice’s Annual Report 2015-2016]. Available at: http://www.oiguskantsler.ee/ylevaade2016/index.php
[2] Õiguskantsleri aastaülevaade 2016/2017 [Chancellor of Justice’s Annual Report 2015-2016]. Available at: http://barn.ee/ylevaade2017/kontrollkaigud
[3] Psühhiaatrilise abi seaduse ja kaasuvate õigusaktide muutmise seaduse eelnõu väljatöötamise kavatsus [Concept note for the draft act to amend the Mental Health Act and associated acts]. Ministry of Social Affairs 08.02.2016. Available at: https://eelnoud.valitsus.ee/main/mount/docList/e102f7cc-a18e-4ab3-aa8c-c66dba4bf2e2
[4] Ibid.
[5] See for example the ECtHR judgment of 20 January 2011 Kashavelov v. Bulgaria, no 891/05, p 38.
[6] See RKHKo 3-3-1-56-15.
[7] ECtHR judgment of 19 December 2013 Tunis v. Estonia, no 492/12.
[8] ECtHR’s judgment of 20 October 2016 no 7334/13.
[9] See RKHKo 3-3-1-16-16.
[10] See RKHKo 3-3-1-16-16.
[11] See RKHKo 3-3-1-83-16.
[12] See RKHKo 3-3-1-86-16.
