Right to personal liberty

Epp Lumiste

The amendments and developments in the area of personal liberties that were initiated in 2011 continued in 2012. The amendment to the Penal Code was adopted, the act amending the Mental Health Act went through two readings in Riigikogu, but was not passed. The means of restraint regulation in the Mental Health Act did come into force, however. Other developments worth mentioning are the analysis that was prepared at the Supreme Court, which handled a person’s post-sentence preventive detention and a decision of the European Court of Human Rights came into force, which detected that Estonia was in breach of Article 5 of the European Convention on Human Rights, and the Supreme Court discussed compensation for damages for unlawful detention.

Political and legislative developments

The act amending the Penal Code, the law of criminal procedure, the Mental Health Act and other acts,[1] which extends the possibility to apply treatment to sexual criminals as a part of penalty system was adopted 30 May 2012. The treatment is understood by the act as subjecting the convicted offender to in-patient or out-patient treatment, which intends to cure or keep the mental disorder that caused the criminal offence under control.

The aforementioned amendment will come into force 1 June 2013. Even though one of the purposes of the amendment was to apply the treatment to sexual criminals, it is still remarkable that the amendment is worded in a way that makes it possible to apply it to other criminals with mental disorders.

The amendment of the Mental Health Act, the Health Care Services Organisation Act and the Code of Civil Procedure was initiated at the Riigikogu in January of 2012.[2] The draft act’s purpose is to create a subsection of anti-addiction care and anti-addiction rehabilitation under the psychiatric care, which is mainly aimed at underage addicts. According to the explanatory memorandum of the draft act, providing such anti-addiction assistance also includes taking the liberty of the person, which can only take place in accordance with an act of law.[3] Two readings of the draft at took place at the Riigikogu, but the act had not been passed as of end of 2012. As the draft act infringes upon fundamental rights as well as the area of government of local governments the local government territories and other relevant authorities have been involved with drawing up of the draft act.

The amendments to the Mental Health Act which were analysed in depth in the previous human rights report came into force 1 September 2012. These amendments enable to apply means of restraints to persons placed in a closed institution. § 14 of the Mental Health Act gives the health care provider the right to apply means of restraint if due to mental disorder of a person there is an immediate danger of bodily harm to themselves or violence toward other persons. The following improves upon the means of restraint regulation discussed in the 2011 human rights analysis.

It is apparent from the Mental Health Act that application of means of restrain is the so-called last resort. This means the health care provider must previously analyse whether there are other and less invasive measures to remove the danger. Measures that infringe human rights less are for example talking to the person and verbally calming them.[4] Only if these minimal measures of force fail may the health care providers apply measures of restraint.

As application of measures of restraint pose a limitation on personal liberty, the regulation of the Ministry of Social Affairs also poses a procedure for monitoring application of such measures.[5] Because this regulation had not yet been drawn up by the previous human rights report, this report will focus on the measures provided by the regulation. According to the regulation the health care provider has the obligation to appraise the condition of the person and the continued need for the measure of restraint. How often the condition should be appraised depends on the intensity of the measure of restraint (whether it is in the form of a medication, a measure of mechanical restraint or by placing into a secluded room). The appraisal should be carried out most often (every 15 minutes) in the case of placing a person in a secluded room. This indicates that placing a person in a secluded room is the most intense breach of personal liberty and its continued use must be constantly monitored.

§ 2 of the regulation states the health care professional has a duty to explain, which means the person must be informed of the reasons for applying measures of restraint. The regulation also states a duty to report to the Health Board. Although, the 2011 overview of the Chancellor of Justice activities that was published in 2012 states there are still problems with keeping a database on measures of restraint (or with it not being sufficiently thorough).[6] However, the overview was drawn up before the regulation was adopted. The regulation in force at the moment requires all measures of restraint to be written in the person’s health file.[7] Even though the regulation does not regulate the keeping of the database, writing the measures of restraint into health files should provide an accurate and proper overview of application of measures of restraint. The purpose of such measures it to guarantee monitoring of breaches of personal liberty also by authorities in higher positions, which guarantees the control of legality of restrictions to rights and freedoms provided by the ECHR.

Therefore, the use of measures of restriction as the so-call last resort, informing the person of measures used and documenting the use of measures of restraint should guarantee the control of their legality and necessity. The aforementioned also means that restriction of personal liberties only takes place in necessary situations and is based on an act of law.

Court practices

4 October 2011 the European Court of Human Rights made a decision in the case of S v. Estonia,[8] which came into force 4 January 2012. The court found in that decision that Estonia was in breach of article 5 of the European Convention on Human Rights.

In the aforementioned decision the court analysed placing a person in coercive treatment according to the Mental Health Act. In the applicant’s opinion his placing in coercive treatment was not in accordance with Estonian legislation and therefore also in breach of European Convention on Human Rights. The act that was appealed was the Mental Health Act. The court found that the Mental Health Act was sufficiently clear and also not excessively rigid. The European Court of Human Rights also analysed whether the restriction on personal liberties had breached the duty that such restriction must be lawful.[9] Based on the facts of this specific case the court found that placing a person in coercive treatment against his will was not in accordance with state legislation.[10] The breach identified by the court was that the person was placed in coercive treatment, but the hearing of the person had not been carried out without a delay. Harju County Court heard the applicant in person only after 15 days had passed since placing him in a closed institution.

It is evident from the facts described that a 15 day delay in hearing the person is in breach of personal liberty stated in article 5 of the European Convention on Human Rights.

The court also found it a problem that the Riigikogu had merely identified a breach of procedural provision, and had not come to further conclusions nor remedied the situation of the applicant. The European Court of Human Rights came to the conclusion that there had been a breach of article 5 of the convention and set a compensation for the applicant.

In addition to the decision by the European Court of Human Rights also the Supreme Court handled article 5 of the European Convention on Human Rights. Even though the court ruling was made 10 January 2013 the case was discussed in the year 2012.[11] In this case the county court had allowed a person to be arrested on the suspicion that he may influence the witnesses if he is free. The county court’s arrest warrant based on the practice regarding article 5 of the European Convention on Human Rights. The Supreme Court explained the application of article 5 and also remarked that: “The European Court of Human Rights has the right to appraise whether state legislation has been followed in taking a person’s freedom, but it does not have the jurisdiction to supplement the state legislation by creating new bases for arrest.” The Supreme Court also emphasised that article 5 of the convention cannot be a legal basis for worsening the condition of the suspect.[12] Thereby the Supreme Court found that courts cannot supplement the bases for arrest on the state level based on the court practice regarding article 5 of the European Convention on Human Rights, especially if it would make the person’s situation worse.

The Supreme Court also handled the application of article 5 of the European Convention on Human Rights regarding compensating for damages for unfounded taking of liberty. 28 November 2012 Supreme Court ruling in an administrative case number 3-3-1-60-12 found that as taking of the person’s liberty was unlawful there had been a breach of subsection 1 of article 5 of the European Convention on Human Rights. As the lower courts had rejected an appeal for compensation for damages for lack of proof of damages having arisen, the Supreme Court emphasised that in case of unlawful taking of liberty of a person “it clearly cannot be precluded that the applicant suffered non-patrimonial damages and has the appropriate right of claim in the light of decision of the European Court of Human Rights and § 25 of the Constitution.” The Supreme Court referred the case back to the court of first instance for acceptance.

The Supreme Court thereby essentially confirmed that the person has the right to compensation of non-patrimonial damages as a result of unlawful arrest, based on § 15 of the State Liability Act.

The Supreme Court additionally confirmed in several instances that the person who has been unlawfully detained has the right to compensation for damages.[13] A conclusion has been reached based on the previous decisions that the persons whose rights named in article 5 of the European Convention on Human Rights have been violated have the right to compensation. As can be concluded from the aforementioned the Estonian courts apply the obligations stemming from article 5 and that personal liberties are protected by courts.

Statistics and surveys

An overview of use of practices of the European Court of Human Rights in decisions of the Supreme Court was published in 2012.[14] The analysis also deals with post-sentence preventive detention that has been declared unconstitutional by now and an additional mark of opinions expressed in dissenting opinions is made to decisions. It has been stated as a criticism that the Supreme Court has applied the practice of the European Court of Human Rights selectively and has not paid attention to the practice regarding application of point a of subsection 1 of article 5 of the European Convention on Human Rights.[15]

The overview does not give an appraisal of whether the application of practice of the European Court of Human Rights should have made the Supreme Court reach a different decision, but merely draws the attention to the fact that according to the practice of the European Court of Human Rights the post-sentence preventive detention could be justified in certain circumstances.

Summary

The acts adopted and the decisions that came into force in 2012 guarantee the continued protection of personal liberties. Even though some of the amendments were initiated in 2012 they do not come into force until 2013 and their effect cannot yet be determined.

The regulation on application of measures of restraint undoubtedly guarantees a better protection of human rights in a situation where the person’s liberty is limited.

Recommendations

• Although the relevant regulation of the Ministry of Social Affairs does not regulate keeping of the database, it states the measures of restrains are to be written into the health file of the patient, and that should guarantee a precise and correct overview of application of measures of restraint.
• It must be guaranteed that the persons placed in coercive treatment are heard by the court immediately. Whereas 15 days does not meet the criteria of “immediate” (the decision of European Court of Human Rights, S. v. Estonia).