1 - Chapter

Prohibition of torture, inhuman or degrading treatment and punishment

Authors: Kristena Paalmäe, Annika Vait

The situation has remained the same.

Key issues

  • Instead of the previous 2.5m2, at least 3m2 of floor space is provided for a detainee in the detention house.
  • Temporary restrictions on detainees due to the COVID-19 pandemic may constitute unacceptable treatment within the meaning of Article 3 of the ECHR.

Political and institutional developments

The situation which currently prevails in Estonia in those areas which are covered by Article 3 of the ECHR is comprehensively reflected in the Chancellor of Justice’s annual overview of inspections.

The Chancellor of Justice noted that, in prisons, more attention should be paid to the possibility of inmates being able to communicate with family members. He also noted that inmates in open prisons should be allowed to use computers and the internet so that they can look for work and investigate potential routes between work and prison. Outside the prison, they should be able to use a mobile phone to inform the prison if, for example, they will only be able to return to prison later than is allowed due to an accident or the technical breakdown of a public transport vehicle.[1]

The Chancellor of Justice emphasised the need to abolish the ban on visits which automatically accompanies penal punishment, and to remove restrictions which do not encourage detainees or those persons who are being held in custody to visit their relatives.[2]

With regard to the PBGB’s detention facilities, the Chancellor of Justice found that detention facilities with poor living conditions may only be used for a short time. In the case of 24-hour video surveillance of the cells, justification for this must be assessed separately on a case-by-case basis. Detainees should be allowed to talk on the phone without officers listening in. When a detainee is searched, forcing them to undress must be justified and must not be done in a degrading manner.[3]

In psychiatric care institutions, the Chancellor of Justice pointed to continuing problems, including the need to improve the treatment environment, to better document the use of restraint measures, and to give more thought to the need for video surveillance.[4]

Legislative developments

A positive amendment has been made to the ‘Internal Rules for Detention Houses’, which entered into force on 01.08.2020, according to which at least 3m2 of floor space is provided for a detainee in each cell instead of the previous 2.5m2.[5]

Case law

During the reporting period, the European Court of Human Rights has established a violation by Estonia in the case Jeret v Estonia. The court found that, given the medical condition of the detainee who was being taken to hospital, handcuffing him to a hospital bed for four days after a heart attack and the medical intervention in question was disproportionate to the need to ensure security. The court found a violation of Article 3, deciding that the treatment was inhuman and degrading.[6]

The case law of the Estonian Supreme Court regarding the issue of the rights of prisoners during the period which was under review has addressed issues which are related to the ban on smoking in prison, successive holding cell sentences, and solitary confinement.

The Supreme Court reached a significant decision regarding the ban on tobacco products in prison in 2019, when the court ruled that a ban on tobacco products and smoking is a proportionate means to ensure the safety and order of people and of the prison itself. According to the Supreme Court, the prohibition does not result in any such intense suffering and inconvenience which would serve to violate the right to be treated with human dignity.[7] This principle is followed in case law.

Following the ban on tobacco products and smoking in prison, the Supreme Court also addressed issues which were related to nicotine replacement therapy. The court explained that the claim for compensation for damages which have been caused by the failure to provide nicotine replacement therapy is a claim which can be related to the provision of healthcare services, the settlement of which falls within the competence of a county court. No illegal activity by the prison was established in the specific dispute.[8]

The case law of the Supreme Court is also consistent on the issue of the enforcement of successive holding cell sentences. In this regard, in 2017, the Supreme Court changed its previous position and found that the uninterrupted successive execution of 120-day holding cell sentences may not be permissible. The court found that when enforcing holding cell sentences, care must be taken, inter alia, to ensure that the consecutive duration of any period of detention does not prove to be disproportionate or detrimental to a person’s health.[9] In another case the Supreme Court also reaffirmed the judgement that placement in a holding cell for a period of 482 days was disproportionate and degrading. However, instead of the requested compensation of 20,000 euros, the Supreme Court awarded the prisoner only 1,500 euros because in awarding the compensation the Supreme Court must also take into account the fact that, since the applicant himself caused the implementation of disciplinary sanctions for his offences, he did not consider his socialisation and freedom of movement to be sufficiently important.[10]

In the case of compensation for damages which may have been caused by solitary confinement, the applicant referred to shortcomings in the conditions of his detention, and claimed compensation for damages caused by degrading treatment. The Supreme Court held that even if the detention of a detainee in a segregated locked cell is in principle justified by a security threat, the detention of a person in isolation may be rendered unlawful by circumstances which are related to the detainee, and such conditions for and restrictions on segregation for a combined set which does not result from the segregation itself but which serve to aggravate the constraints which can be associated with the segregation.[11]

During the reporting period, the Supreme Court also received cases which concerned the rights of detainees, including opportunities to engage in sporting activities and walking, and being out in fresh air in general.

The Supreme Court highlighted an important principle in the detention of a detainee. The conditions of detention for a detainee should not be stricter in the case of long-term detentions than it is for more ordinarily- convicted persons, unless there are good reasons for restricting this right more widely. The Supreme Court held that if it is necessary for the protection of the detainee’s health, the prison must ensure conditions which will enable that detainee to carry out various exercises and will encourage the detainee to engage in physical education. For example, a prison may be able to install facilities to facilitate and diversify the detainee’s walking box (such as a pull-up bar), or to move the detainee to a larger or better-equipped walking yard a few times a week.[12]

Possibilities were also considered regarding the detainee being able to walk out in the fresh air and to remain there for a period of time, something which was not permitted for the applicant. The detainee was held in the detention centre twice, for a total of 115 days. At the cassation stage, it was no longer being disputed whether the refusal to allow him to stay in the fresh air was unlawful, as the amount of compensation to be awarded to the detainee was being disputed instead. The Supreme Court awarded compensation to the amount of 1,000 euros.[13] The court followed the principle which is rooted in the practice of the courts in general, noting that in determining the compensation amount, the availability of domestic court proceedings in regard to claiming compensation must be taken into account, along with the Estonian legal tradition and the expected standard of living.[14]

Trends and outlook

The COVID-19 pandemic and the resultant restrictions in the country have also affected detention facilities. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) pointed out that protection measures must never lead to the inhumane or degrading treatment of detainees.[15]

For example, the CPT recommended that alternatives to detention be found, such as considering early release, probation, community service, re-evaluating the need for psychiatric patients to be placed in closed institutions, and so on. When providing healthcare to detainees, special attention must be paid to detainees who are at risk. If detainees have limited contact with the outside world, including visits, this should be offset by increased access to alternative means of communication (such as telephone or internet telephony).[16]

The Chancellor of Justice also pointed out that the ban on prisoners walking in fresh air and the reduced possibility of them being able to call their relatives once a week could constitute unacceptable treatment within the meaning of Article 3 of the ECHR. The Chancellor of Justice found that if it is possible to organise a session which involves walking in the fresh air and calling relatives without creating a risk of infection, this must be allowed. The prohibition on torture and the degrading treatment of people is absolute. It applies without any possibility of exception or exemption during an emergency.[17]

In practice, mitigation measures in Estonian prisons included various options such as, for example, the possibility of being able to extend television viewing periods, extended television programme packages, and the provision of supplementary food (such as chocolate or dried fruit). In addition, books, newspapers and magazines, teaching materials, puzzles, board games, crossword puzzles, sudoku puzzles, stationery and paper, and mandala book reproductions, along with sample exercise sheets for breathing exercises, yoga exercises, and physical activity were all distributed to the cells.[18]

Case study

A detainee who was suspected of having a heart attack was taken to a hospital for medical procedures, after which he was hospitalised for a total of four days. Throughout this time handcuffs were used to restrain him, with these only being removed when changing escorts, during meals, going to the toilet, during hygiene and medical procedures, and when changing clothes.

The ECHR found that, given the prisoner’s state of health, his handcuffing to the hospital bed for four days after a heart attack and the medical intervention in question was disproportionate to the need for security, especially as he was constantly monitored by two prison officers during his stay in hospital.

Recommendations

  • Improve the opportunities for prisoners to communicate with relatives.
  • Ensure that conditions for long-term detention are not harsher than those for convicts who have a shorter duration to their sentence.
  • Allow both persons who are being held in custody and detainees to walk in the fresh air.

[1] Õiguskantsler. 2020. Õiguskantsleri aastaülevaade 2019/2020. Kontrollkäigud.

[2] Õiguskantsler. 2021. Õiguskantsleri aastaülevaade 2020/2021. Kontrollkäigud.

[3] Õiguskantsler. 2020. Õiguskantsleri aastaülevaade 2019/2020. Kontrollkäigud.

[4] Õiguskantsler. 2020. Õiguskantsleri aastaülevaade 2019/2020. Kontrollkäigud.

[5] Riigi teataja I. 29.07.2020, 4. Arestimaja sisekorraeeskiri § 12 lg 3.

[6] Euroopa Inimõiguste Kohtu 09.06.2020. a otsus Jeret vs. Eesti, nr 42110/17, p-d 67 ja 71-73.

[7] Riigikohtu põhiseaduslikkuse järelevalve kolleegiumi 17.12.2019 otsus kohtuasjas nr 5-19-40, p 61.

[8] Riigikohtu halduskolleegiumi 22.09.2020. a otsus kohtuasjas nr 3-17-2859, p-d 13-14.

[9] Riigikohtu halduskolleegiumi 10.10.2017. a otsus kohtuasjas nr 3-15-3133, p 18.

[10] Riigikohtu halduskolleegiumi 15.04.2020. a otsus kohtuasjas nr 3-18-360, p-d 15-18.

[11] Riigikohtu halduskolleegiumi 28.02.2020. a otsus kohtuasjas nr 3-17-1503, p 17.

[12] Riigikohtu halduskolleegiumi 17.06.2021. a otsus kohtuasjas nr 3-19-1416, p 40.

[13] Riigikohtu halduskolleegiumi 19.06.2020. a otsus kohtuasjas nr 3-18-562, p-d 9-13.

[14] Euroopa Inimõiguste Kohtu 07.05.2013. a otsus Mets. vs. Eesti, kohtuasjas nr 38967/10, p 31.

[15] CPT. 2020. Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (Covid-19) pandemic.

[16] Ibid.

[17]  Õiguskantsler. COVID-19 haigust põhjustava viiruse leviku tõkestamise meetmed, 06.04.2020.

[18] Justiitsministeerium. 2020. Covid-19 viirusest tingitud eriolukord.


Authors

  • 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.

     

  • Annika Vait on Advokaadibüroo ALTERNA vandeadvokaat ja partner alates büroo asutamisest. Annika on omandanud õigusteaduse magistrikraadi Tartu Ülikooli õigusteaduskonnas ning on tänaseks advokaadina tegutsenud üle 13 aasta. Igapäevatöös peab Annika kokkupuuteid inimõiguste valdkonnaga tavapäraseks, mistõttu tuleb end ka pidevalt muudatustega inimõiguste valdkonnas kursis hoida.

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