1. - chapter

Prohibition of torture, inhuman or degrading treatment and punishment

Authors: Epp Lumiste, Kristena Paalmäe

Key topics

  • The Chancellor of Justice and the Supreme Court detected excessively long punishment cell penalties for detainees and recommended they not be enforced consecutively.
  • The Chancellor of Justice detected prohibited implementation of means of restraint at institutions providing psychiatric care.
  • The smoking ban in all prisons is in effect in Estonia as of 1 October 2017.

Political and institutional developments

The practice concerning Article 3 of the ECHR is primarily linked to the rights of prisoners. In this area we highlight the strategic development document “The draft fundamentals of criminal policy until 2030”.[1] The draft sets as one of the objectives the decent treatment of detainees: “in order to transform prison and criminal care into a central institution for re-socialisation, where detainees are treated with human dignity and adulthood.” The previous developments in criminal policy were defined until 2018,[2] which did not mention the decent treatment of detainees. Planned improvements in criminal policy can be noted as a positive development from the point of view of Article 3.

At the end of the reporting period the Chancellor of Justice made a control visit to the Viru Prison,[3] where she established that the prison implemented all the punishment cell penalties consecutively and also enforced punishment cell on minors. In the estimation of the Chancellor of Justice the length of a punishment cell penalty should not exceed 14 days for adults and 3 days for minors. It would be even better if punishment cell penalties were not considered for minors. A reasonable length of time must be allotted between enforcement of punishment cell penalties if the length of punishment exceeds 14 days. Such position was earlier also taken by the Supreme Court who in their judgment no 3-15-3133 found that the detainee must accrue a reasonable number of days in open prison before enduring various penalties of punishment cell.[4]

The Chancellor of Justice also referred to shortcomings in psychiatric care institutions. The Chancellor of Justice pointed out that restraining patients must be formalised in such a way that the documents also state the reason for the implementation of the restrictive measure and for its continuation at all times. The continuation of restraint should be justified separately by the physician, it is not enough to repeat the description of the behaviour prior to patient containment.[5] At the same time, following an inspection visit at Pärnu-Jaagupi care home, the Chancellor of Justice found that the mechanical containment of customers for the purpose of limiting the scope of movement and movements is not permitted by the general care service. The scarcity of personnel and the fact that they are too busy cannot justify an unlawful restriction on the freedom of movement of persons. If a person’s health condition permits, he or she must be able to use a toilet or a commodity chair. It’s up to the employees to help the customer. The use of diapers when the patient is able to use a commode chair with the help of an enabler is detrimental to human dignity.[6]

Legislative developments

On 1 October 2017 smoking was banned in all prisons in Estonia. The smoking ban aims to protect the health of inmates and prison service officers, help smokers get rid of addiction, save state resources and ensure prison security.[7] Establishing the ban lead to annoyance of several detainees – in one case that has reached the State Court, the detainee has also referred to torturous treatment.[8] According to the Prison Service Estonia’s implementation of the ban is based on the fact that, according to both the Constitution, the ECHR and the viewpoints of the ECtHR the state is obliged to guarantee the protection of prisoners and prison officers from passive smoking.[9] However, as regards to the implementation of the absolute ban on smoking, the question arises as to whether it is not possible to achieve health protection objectives by means which would infringe the right of detainees to smoke to a lesser extent.

Court practice

During the reporting period the ECtHR made a total of three decisions concerning the application of Article 3 of the ECHR, of which the infringement of Article 3 was detected on one occasion.

In the judgment of Jatsõšõn v. Estonia[10] the ECtHR assessed the conditions guaranteed to the prisoner for transport in the prison delivery bus to be degrading to human dignity. The detainee was in the delivery bus for a total of 20 minutes, because the detainee gave up his planned trip to the funeral upon reaching the prison gate. The detainee was provided with 0.51 m2 of free space in the delivery van and a plastic seat attached to a metal base, but no seat belt and handles were available. The ECtHR explained that the infringement of Article 3 could not be assessed by taking into account only the area guaranteed for the detainee, but also other conditions upon transportation. The ECtHR, similarly to Estonian courts, found that the space allotted for the detainee was comparable to what is required for transportation of persons who are not detainees. The fact that there was no seat belt does not in itself constitute an infringement of Article 3 of the ECHR and it is not required under Estonian national law that all vehicles are equipped with seatbelts. Also, the detainee spent only a short period of time in the delivery van. The ECtHR did not identify an infringement of Article 3 as the treatment of the detainee did not meet the level of seriousness required by Article 3.

In the judgement of Nikitin and others v. Estonia[11] a total of 7 plaintiffs claimed that they had been kept in Tallinn Prison in inhuman and degrading conditions. The judgment once again referred to the minimum size of the allotted floor space and persons were afforded reasonable compensation for infringement of Article 3. The ECtHR once again emphasized that abuse must reach a minimum degree of seriousness in order to fall within the scope of Article 3 of the ECHR. The minimum threshold depends on the circumstances of the case, e.g. duration of treatment, physical and mental effects, in some cases the person’s gender, age and health status. The minimum threshold is usually met by a real physical injury or severe physical or mental suffering. In the absence of the above-mentioned circumstances, a person’s degrading treatment may also fall within the scope of Article 3 where absence or decrease of respect for human dignity of a person is demonstrated, or where such treatment creates fear, anguish or inferiority that may break the moral and physical endurance of a person. The ECtHR identified that detainees were held in Tallinn Prison for a long time in a room of less than 3 m2 of floor space. Such detention has caused the detainee difficulties, exceeded the unavoidable suffering caused by detention and its severity exceeds the minimum threshold for falling within the scope of Article 3. The ECtHR detected infringement of Article 3. The conclusion of the ECtHR was not affected by the fact that the detainee was allowed one hour a day to move outside along with his cell mates.

In the appraisal of the ECtHR the compensation awarded by Estonian courts for infringement of Article 3 was small (in the range of 100–1100 euros). Whereas, the compensation awarded for inhuman treatment or conditions degrading human dignity in Estonian case law is usually between 100 and 1000 euros. The appellant Nikitin spent a total of 2 years in inhuman conditions, but according to the Estonian court the appropriate compensation was 250 euros. ECtHR increased this compensation significantly and awarded 8000 euros for the breach of Article 3. Similarly, the ECtHR also awarded other plaintiffs significantly larger compensation (ranging from 4575 to 9975 euros). In the light of the judgment, an increase in the number applications concerning inhuman treatment and breach of human dignity can be expected in the future for increase of compensation awarded.

In the judgment A.T. v. Estonia[12] a detainee complained about measures applied to him in the course of carrying out medical studies. In the plaintiff’s assessment the wearing of prison clothes and hand and foot cuffs during the hospital visit was inhuman and degrading, showing him to the public as a detainee. According to the plaintiff the measures applied to him had been disproportionate as he had never attempted to escape. The ECtHR found that the use of handcuffs does not usually lead to infringement of Article 3 if handcuffs have been used in connection with legitimate detention and does not result in use of force or larger than necessary display to the public. The ECtHR took into account the fact that the plaintiff did not respect the prison regime, was aggressive and capable of attacking others and damaging himself. The fact that the plaintiff had not tried to escape did not hold importance, as the danger from him to others and himself was important. The ECtHR did not detect any kind of health-related circumstances which would have excluded the application of containment measures. Therefore, the ECtHR did not identify and infringement of Article 3.

The direction of the Supreme Court’s practice has shifted from an earlier popular topic – detainees’ “floor space disputes” to issues concerning enforcement of punishment cell punishment, smoking in prison, and detainees’ right to medical assistance. This can largely be associated with closing of the former Tallinn Prison in 2018, where the insufficient floor space problems were caused by the prison’s over-crowdedness.

In judgement no 3-15-2943[13] the Supreme Court assessed whether the placement in punishment cell for 518 days and 236 days imposed on a detainee as a disciplinary punishment is lawful if the punishment was to be enforced consecutively and in an uninterrupted manner. According to the detainee, these were inhuman conditions of imprisonment. The Supreme Court found that also in the case of mentally and physically healthy persons it is necessary to assume the disproportionate nature of his stay in the holding cell if the duration of his uninterrupted stay in the holding cell has significantly exceeded the maximum duration of 45 days stated in the Imprisonment Act. Therefore, it follows from case law that punishment cell holding exceeding 45 days is not in concordance with requirements of Article 3 of the ECHR, as it damages a person’s human dignity.

Establishment of the smoking ban in prisons of Estonia resulted in an increase of number of court appeals in relation to the right of detainees to smoke on prison territory. According to the administrative case no 3-18-253, the detainee considered the smoking ban to be unconstitutional, discriminatory and torturous.[14] In the administrative case no 3-17-2610 the detainee referred to the torturous effect of lack of nicotine.[15] In neither judgment did the Supreme Court get to substantive debate regarding the smoking ban, as it focused on the formal prerequisites for lodging a complaint. In its analysis of the smoking ban the Supreme Court found in judgment no 3-18-65[16] that courts should not reject appeals against court rulings, but should proceed with the substance of the matter in order to protect the rights of the appellant. Even though, in the Supreme Court’s opinion the return of the appeal was not justified, Tartu District Court did not substantially process the appeal, finding that the time limit for the appeal had been exceeded.

In the civil case no 2-15-18182 the Supreme Court analysed the detainee’s right to medical assistance, in other words, treatment of detainees in accordance with Article 3 of the ECHR. According to the Supreme Court, in assessing what must be a reasonable time for a patient to have an operation, it is important not to rely on the time during which the operation has not been granted, but on data enabling comparison between the availability of the operation in question both in prison and in freedom according to the queue. The Supreme court found that Article 3 does not guarantee detainees better conditions than persons in freedom. The Supreme Court referred to the relevant ECtHR practice, according to which Article 3 cannot be interpreted to guarantee detainees the right to similar medical treatment as in best civilian hospitals.[17]

Statistics and surveys

In autumn of 2018 a study commissioned by the Ministry of Justice on detainees’ assessment of prisons’ internal climate was carried out.[18] The study reveals that detainees estimate humanity and individuality on a scale of 1–5 at 2,75 points. It is remarkable that 40% of respondents to the survey think they are not being treated humanely and 53% feel they are sometimes treated in a humiliating manner in prison.

Paragraph 324 of the Penal Code states that degrading the dignity of a prisoner, person in detention or custody or taken into custody to recover from intoxication, or discriminating against such person or unlawful restricting of his or her rights by an official of a custodial institution taking advantage of his or her official position, if it does not contain the necessary elements of office provided for in § 2901 of this Code, is punishable by a pecuniary punishment or up to one year of imprisonment. According to the Ministry of Justice’s annual report “Crime in Estonia”, ten crimes corresponding to § 324 of the Penal Code were registered in Estonia in 2018.[19] That figure is the highest of the last 13 years.

At least a partial solution to the above-mentioned problems can be seen in increasing the number of prison officials in prisons in Estonia.


  • Take into account the successive duration of detainees’ stay in the punishment cell in order to allow, where appropriate, a reasonable number of days in normal prison conditions, lay down the relevant principle in law governing organisation of prison life, following of which would reduce infringement of Article 3 of the ECHR.
  • In psychiatric care institutions, ensure that diapers are not used on patients who are able to go to toilet or use the commode chair.
  • In psychiatric care institutions, ensure that containment measures are not applied to general care patients, and that the implementation of measures to control special care patients do not unlawfully restrict their freedom of movement.

Case description

The detainee spent 1.5 years in an overcrowded cell, where he had less than 3 m2 of personal space. He was locked in the cell day and night with the only chance to exit the cell by spending 1 hour outdoors every day on a 15 m2 territory. The ECtHR detected a breach of Article 3 and explained that the period of detention in such conditions was too long in itself, which is why other circumstances – such as the detainee’s sufficient opportunity to move outside of the cell – did not even require consideration.

[1] Ministry of Justice. Kriminaalpoliitika põhialused aastani 2030 [The fundamentals of criminal policy until 2030].

[2] Kriminaalpoliitika arengusuunad aastani 2018.

[3] Chancellor of Justice. Viru Vangla kontrollkäigu kokkuvõte [Conclusions of control visit to Viru Prison], 07.08.2019.

[4] 10 October 2017 judgement no 3-15-3133 of Administrative Law Chamber of the Supreme court, p 18.

[5] Chancellor of Justice. Aastaülevaade 2018 [Chancellor of Justice’s annual review 2018].

[6] Chancellor of Justice. Pärnu-Jaagupi Hooldekodu kontrollkäik [Inspection visit of Pärnu-Jaagupi care home], 13 August 2019.

[7] Vanglateenistuse aastaraamat 2018 [Prison Service’s yearbook], page 36.[1]

[8] 28 June 2019 judgement no 3-18-253 of Administrative Law Chamber of the Supreme Court, p 2.

[9] See footnote 8, page 37.

[10] 30 January 2019 European Court of Human Rights judgment Jatsõšõn v. Estonia, no 27603/15, p 36-45.

[11] 26 June 2019 European Court of Human Rights judgment Nikitin and others v. Estonia, no 23226/16 and 6 others.

[12] 13 November 2018 European Court of Human Rights judgment A.T. v. Estonia, no 23183/15. In the same case the plaintiff asked for a declaration of infringement of his rights under articles 6 and 8 of the ECHR when he visited his new-born daughter in a children’s hospital. To that extent the court accepted the complaint.

[13] 4 June 2018 judgement no 3-15-2943 of Administrative Law Chamber of the Supreme court, p 19.

[14] 28 June 2019 judgement no 3-18-253 of Administrative Law Chamber of the Supreme Court, p 2.

[15] 7 June 2019 judgement no 3-17-2610 of Administrative Law Chamber of the Supreme Court, p 9.

[16] 23 October 2018 regulation of Tartu Circuit Court in administrative matter no 3-18-65.

[17] 22 March 2019 judgment no 2-15-18182 of Civil Chamber of the Supreme Court, p 13.

[18] Ministry of Justice. 2018. Vanglate sisekliima uuring: Kinnipeetavate küsitlusuuring Tallinna, Tartu ja Viru vanglates [study on prisons’ internal climate in Tallinn, Tartu and Viru prisons], page 44.

[19] Ministry of Justice. 2018. Kuritegevus Eestis 2018 [Crime in Estonia 2018], page 72.


  • 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.


  • Kristena Paalmäe on Advokaadibüroo ALTERNA advokaat. Ta on omandanud õigusteaduse magistrikraadi Tartu Ülikooli õigusteaduskonnas. Kristena huvi inimõiguste valdkonna vastu sai alguse Eesti Inimõiguste Keskuses praktikal olles. Hiljem on Kristena kirjutanud nii bakalaureuseastmes uurimistöö kui ka magistritöö inimõigustega tihedalt põimuvatel teemadel. Ka eelmisel aastal panustas Kristena Eesti Inimõiguste Keskuse aastaaruande koostamisse.