The situation in custodial institutions[1]

In May 2007, a delegation from the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment – CPT visited Estonia. The fourth visit of the Committee focused on the developments that took place since the previous visit. In addition, the treatment by the police of the participants in the disturbances that took place in Tallinn in April was examined as was the situation of juvenile prisoners and those serving life sentences. Pursuant to the rules of the CPT, the results of the visit are confidential.

Estonia was also visited by the Council of Europe Human Rights Commissioner, in order to discuss the fulfilment of the recommendations made by the Commissioner in the memorandum published on 11 July.[2] Among other things, the memorandum includes an overview along with recommendations regarding custodial institutions.

In 2007, other international organisations that have discussed the situation in Estonia’s custodial institutions included the UN Committee against Torture-CAT in connection with the Estonian report on the fulfilment of the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.

On 18 February 2007, an important amendment to the Chancellor of Justice Act came into force.[3] Pursuant to the amendment, one of the tasks of the Chancellor of Justice is to act as a preventive institution as defined by the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment. Within its framework, one of the most important activities of the Chancellor of Justice is to monitor the activities in prisons and detention centres. At the same time, the Chancellor of Justice dealt with this area of activity before the law was amended.

As of 2008, there are five prisons under the jurisdiction of the Ministry of Justice—Harku, Murru, Tallinn, Tartu and Viru.[4] The Ämari Prison was closed in 2007 in connection with the opening of the Viru Prison at the beginning of 2008.[5] According to the information on the Estonian Police website, there are 16 detention centres under the jurisdiction of the Ministry of Justice.[6]

Currently, the prison system is being modernised in Estonia, during which two prisons that conform to today’s standards have been opened: the Tartu Prison in 2002 and the Viru Prison in 2008. There are plans to build a new Tallinn Prison by 2012 (in Maardu). In addition to the significant improvement in living conditions, the changes involve a transition from Soviet-era dormitory prisons to cell-type prisons.[7] The detention centres, where conditions have continued to be the subject of international criticism, are also being modernised.[8]

International organisations have acknowledged the developments, including the improvement of living conditions and finding a solution to overpopulation.[9] For instance, on 8 November 2005, the European Court of Human Rights found that living conditions at the Central Prison (Patarei Prison) and the Jõgeva Detention Centre amounted to treatment that was deemed to degrade human dignity (Alver vs. Estonia). In 2007, the Council of Europe’s Committee of Ministers found that Estonia has fulfilled the obligations resulting from the given case and the situation has significantly improved, referring to the shutdown of the Central Prison and the planned shutdown of the Jõgeva Detention Centre and the opening of a new detention centre.[10] In addition, the Committee also referred to the programme of the Ministry of the Interior to improve the living conditions at the detention centres, and considered the development to suffice for ending the case.

At the same time, the Council of Europe Human Rights Commissioner has criticised the reconstruction plans. The Commissioner noted that in anticipation of new buildings, the detention centres currently in use have been neglected and their situation has even deteriorated in recent years.[11] “The planned opening of new custodial institutions cannot be an excuse to legalise intolerable conditions.”[12] The Chancellor of Justice is of the same opinion, whose assessment is that “the transition phase must progress smoothly, and throughout attention must be paid to make sure that prisons are not closed before the number of detainees and the capacity of the remaining prisons truly allow for this.”[13]

 

Population of custodial institutions

One of the reasons for modernising the system of prisons and detention centres is their overpopulation, which has created concerns for the officers themselves and for various international organisations. Overpopulation affects the general living conditions, including hygiene and discipline and, therefore, finding a solution is a priority.

In addition to the living conditions of the detainees, the problem has a wider impact on the whole society.

“The overpopulation of the detention centres and the shortage of places has caused a situation where the actual fulfilment of the arrests ordered by the court are not enforced and the conviction that the legal system is incapable of carrying out the sanctions established by the law becomes ingrained in the people that have committed offences… However, the aforementioned reduces the belief of the population in the validity of the standard and does not guarantee sufficient protection of law and order, because punishment can be avoided by individuals or the time between the act and the punishment is so long that the impact of the punishment is not effective.”[14]

 In the review of human rights in Estonia compiled in the US, the majority of prisons continue to be classified as overpopulated.According to the Annual Report on Prisons and Probation Supervision, as of 1 January 2008, there were 3,456 prisoners in Estonian prisons: 2,540 convicted and 916 detainees. According to the statistics of King’s College London, the number of Estonian prisoners per 10,000 residents put it at 44th place among the world’s 217 countries and sixth among the 56 European countries.

In 2007, several amendments to legislation came into force (the establishment of electronic surveillance, fines instead of imprisonment for the theft of items of little value, the procedure for processing applications for early release, etc.) which caused the sudden decrease in the number of detainees, which is shown in figure 5.[15] International organisations have acknowledged what has been done, but noted the need to continue these developments.[16] According to the development plan of the Ministry of Justice one of the priorities continues to be the reduction of the prison population by shortening prison terms, as well as reducing the ratio of imprisonment and the risk of repeated criminal offences.[17] It is hoped that by 2015, the number of detainees will be reduced to 3,000.[18]

In respect to overpopulation, the situation in the detention centres is worse that in the prisons. For instance, the Chancellor of Justice in his control visit to the Northern Police Department of the Northern Police Prefecture discovered that notably more people were placed in cells than allowed on average.[19] On average 7-8 people were being held in cells that could maximally house up to three people, and on average 1-2 people were being held for a long term in cells that should be used for up to one hour in emergency situations. In the documents from the Kohtla-Järve Detention Centre, the Chancellor of Justice discovered that 47-53 detainees were being held instead of the allowable 32 people.[20]  The aforementioned shows that the Ministry of the Interior significantly lags behind the Ministry of Justice in respect to its development.

 

Hygiene

Hygiene is a greater problem in detention centres than it is in prison, although the situation in the prisons that have not been renovated is unsatisfactory and “in some places extremely unsanitary”.[21] The Human Rights Commissioner of the Council of Europe was concerned by the lack of hot water at the Tallinn Prison. The detainees in provisional custody have access to hot water once a week when taking showers. The Ministry of Justice justified the shortcoming with the completion of a new prison building planned for 2010. The Commissioner found that this cannot be a justification for unsatisfactory conditions.[22]  The Chancellor of Justice ascertained that hot water was also lacking in the cells at the Pärnu Detention Centre.[23]

In connection with the opportunities for taking showers in prisons, the Chancellor of Justice has noted in the summaries of several of his control visits that although “the Imprisonment Act provides for the use of washing facilities once a week as a minimum, and this is certainly only a minimum”. At the same time, “in today’s society, most people think it is normal to have the opportunity to take a shower every day or every other day /sic!/ and cannot imagine less” and, therefore, “based on the principle of human dignity, prisons should try to guarantee more frequent washing opportunities.”[24]

A greater problem has been fulfilling the requirement for the existence of a hygiene corner separated from the rest of the space in each cell. In the Northern Police Department of the Northern Police Prefecture, the hygiene corners are totally missing, and when the detainees need to use the toilet, they must notify the “the worker in charge of surveillance, who, if necessary, will order the arrival of the patrol serving the region, because during the night, the worker is in the Police Department alone, and based on security considerations, is not allowed to open the cell alone.”[25] In some places, where a hygiene corner exists, the detainees must “satisfy their bodily functions in view of their cellmates” and are watched by police officers.[26] In the Kuressaare Detention Centre, the cells contain “a plastic pail, which the detainees empty out once or twice a day.”[27] According to the Chancellor of Justice, this situation violates §26 of the Constitution, which deals with the protection of private life and the CPT has also criticised this situation.

In summary, the Chancellor of Justice has found the conditions in five places of detention to be so unsanitary that he called them “inhuman and degrading”. For instance, the living conditions at the Kuressaare Detention Centre are “in some places catastrophic” and “comparable to the conditions at the Narva and Kohtla-Järve Detention Centres that the CPT has repeatedly sharply criticised.” According to the Chancellor of Justice, detainees should not be placed in the Kuressaare Detention Centre at all to the extent that this can be avoided.[28] In respect to living conditions, the Chancellor of Justice places the detention cells at the Northern Police Department of the Northern Police Prefecture in the same category.[29]

 

Food

The Human Rights Commissioner criticised the conditions for allowing special diets. The detainee must obtain approval for a special diet from the medical personnel or prison cleric. Therefore, vegetarian prisoners cannot get a special diet, because vegetarianism is not a religion. In addition, such an approval system is problematic from a freedom of religion viewpoint, since the detainee must prove his/her religion.[30]

In its final conclusions, CAT has stated that “contracting parties should provide sufficient food to all detainees.”[31]

The Chancellor of Justice’s control visit to the Pärnu Detention Centre confirmed the relevance of this criticism. In Pärnu, it turned out that the detainees are only provided hot food once a day. “In the morning and evening, the detainees are given hot sweet tea.” Anything else, the detainee must save from lunch. However, this procedure violates Regulation no. 150 of the Ministry of Social Affairs dated 31.12.2002, entitled “Food norms in custodial institutions”, “according to which, detainees will be given food conforming to the food norm in three parts, at least three times a day and at definite times. The daily food norm must cover the necessary food consumption for the detainee’s daily activities…”[32]  In addition, in 2007, the Chancellor of Justice was petitioned by a detainee who complained that on the day that he is transported between prisons or between the prison and the detention centre, he misses lunch. The Chancellor of Justice condemns this situation and found that “a situation in which the person is not fed must be prevented.”[33]

 

Health care and health protection

§28(1) of the Constitution guarantees everyone, including detainees, the right to health protection. Based thereon, according to the Ministry of Social Affairs Development Plan for 2008-2011, one of the priorities of the Ministry of Social Affairs for this period is to make health care services available to all detainees in detention centres.[34] The Ministry of Justice has also set an objective of guaranteeing a proper health care system in prisons.[35]

The health care system in custodial institutions is a part of the state health care system and they are financed through the corresponding ministries. According to the Prisons and Probation Yearbook, in “2007 … the reorganisation of the prison health care system was completed.” Based thereon, there is a medical department in every prison, where general in-patient medical care is provided.[36]

However, there are still problems in the field of health protection. This is also demonstrated by the CAT’s final conclusions, in which there is an expression of “concern regarding the practical implementation of the fundamental legal guarantees for the detainees, including the access to independent doctors…” The Committee finds that Estonia should guarantee that all detainees have access to medical examinations.[37]

Upon arrival in a prison or detention centre, the detainees must undergo an initial health checkup.[38]  Thereby, the condition of the detainee’s health is determined upon the detainee’s arrival in the custodial institution. This is necessary in order to assign treatment for existing health problems (e.g. various contagious diseases) and to protect the staff of the custodial institution from accusations of abuse. Therefore, Estonian law also requires that this health checkup be carried out by a doctor. Unfortunately, this procedure is not followed in many detention centres and the initial checkup is conducted by an officer who happens to be present in the detention centre, who does not have the necessary medical training.[39]  This discredits the independence of the health checkup that is carried out.

There should be 24-hour access to medical care in all custodial institutions. “By depriving a person of his/her liberty, the state is obligated to guarantee the protection of his/her health, including the possibility of summoning help. Based thereon, the prisons are obligated to constantly monitor the condition of the prisoner’s health, and if necessary, to organise in-patient care for the prisoners under the constant supervision of medical workers.”[40] This does not necessarily mean that all health care services must be guaranteed in all custodial institutions—it suffices if the detainees can be taken from the custodial institution to the corresponding medical service provider. In this case, a provision should be made “in the budget to cover the costs for transferring the detainees, arrestees and prisoners.”  However, basic general medial care must be available in custodial institutions.[41]

During his control visits to custodial institutions, the Chancellor of Justice has come in contact with circumstances where the necessary medical supervision is not guaranteed. For instance at the Pärnu Detention Centre “it turned out that, in case the medical worker is sick or on vacation, there is not a replacement.” In this case, the detainee’s initial health checkup is not conducted and the provision of medical care is also disrupted.[42] At the same time, the only one to carry out regular examinations at the Narva Detention Centre was a medical assistant, who did not even have the right to write prescriptions.[43]

Psychiatric treatment in prisons is a separate issue. On his control visit to Tartu Prison, the Chancellor of Justice discovered that in order to have access to a psychiatric examination the prisoners must initially visit “a general practitioner or psychologist, which clarifies the need for treatment.” Pursuant to the Health Insurance Act, an explanatory letter or other preliminary medical checkup is not necessary for getting psychiatric care.

“The reason for the given standard is the fact that society is significantly more sensitive about certain health disorders. For instance, patients with psychiatric disorders are often more vulnerable and the problems related to the disorders are very personal. By providing for direct access in case of psychiatric problems, the stress related to the seeing a psychiatrist is reduced and stigmatisation is avoided. Therefore, it is very important to promote the diagnosis and treatment of mental health disorders at an early stage and this should not be obstructed.”[44]

 The obligation to guarantee medical care also includes making the medicines permitted in Estonia available to prisoners.[45] The Chancellor of Justice has reproached the Pärnu Detention Centre, where the availability of the necessary medicines to detainees has been hindered by the improper preparation of the budget. The Chancellor of Justice found that “the financing of the medical care of the detainees, officers and employees all took place from the same ‘budget item’.” At the same time, it turned out that the necessity for medicines and other medical care is decided by a “person without special medical knowledge (so-called ‘cost manager’)”. Therefore, the detainees are sometimes left without the necessary medical care.[46] According to the Chancellor of Justice, the situation is even more drastic at the Narva Detention Centre, where the detainees “are not guaranteed the availability even elementary … health care services such as examination by a doctor or in-patient care in a hospital …” and “as a rule, the choice of (medicine) is limited to inexpensive over-the-counter medicines.”[47]

The existence of a high-technology call system in every cell for announcing unexpected health-related alarms is not necessary, if there are other means of attracting the attention of the supervisory personnel. In its decision 3-3-1-70-07, the Supreme Court confirmed that the criterion is “a sufficiently simple and effective possibility” of summoning supervisory personnel, “who will ascertain the reason for the call, and if necessary, organise the provision of medical care to the detainee.”[48]  In addition, pursuant to the law, the officers must provide first aid to the detainee if necessary. “In reality, the fulfilment of this obligation assumes that the officers of the detention centre have received the necessary training.”[49] At the same time, the CAT was concerned that “specialised training” has not been organised for medial personnel in order to identify signs that point to torture and mistreatment.”[50]

HIV/AIDS

The HIV/AIDS situation in custodial institutions, the measures for preventing their spreading and the effectiveness of medical care is under special attention.

According to the Prison and Probation Yearbook, there are “initial HIV laboratories” at all the prisons and “voluntary testing/consulting takes place… Thanks to the health care system, HIV is not spread in prisons.”[51] Despite this, the CAT expressed its “continued concern” about the “insufficient HIV-specific health care” at the local custodial institutions.[52] The Ministry of Justice has also admitted some shortcomings and set a goal of “preventing the spread of HIV and other contagious diseases inside the prisons, by guaranteeing the availability of HIV-related training and informational materials, HIV testing and consulting services, means of protection, as well as diagnostics and treatment.”[53]

The Council of Europe’s Human Rights Commissioner referred to the Estonian UNAIDS report, according to which the lack of a needle exchange programme in prisons continues to be problematic, because the reuse of needles continues to be frequent. About 30% of prisoners in Estonia inject narcotics. Therefore, the risk of transmitting HIV/AIDS and hepatitis B and C continues to be high.[54]

Narcotics and narcotics prevention

The memorandum of the Council of Europe’s Human Rights Commissioner issued in 2007 reproaches the Ministry of Justice for the fact that there was no treatment for narcotics addicts at the prisons. Replacement therapy has been terminated in order to be replaced by deprivation treatment, although the latter was not yet functioning, since the training of the doctors had not been completed. Due to the reorganisation, in addition to the new arrivals, treatment was also not available for those already in prison who had previously received treatment.[55]

The Development Plan of the Ministry of Justice until 2012 has set the goal of implementing narcotics prevention and rehabilitation measures.[56] According to the plan, the Tartu Prison will specialise in offenders that are drug addicts. They will be guaranteed deprivation and replacement therapy, from which it can be concluded that the Ministry of Justice has decided to provide both treatments.

Discipline and security in prison

The measures for guaranteeing discipline have formed the basis for several legal court actions in 2007. The Chancellor of Justice also dealt with this issue in connection with received complaints and control visits to custodial institutions.

One subject for dispute was the practice of searching cells. The Supreme Court found that the necessity for searching cells is justified by the security interests of the prisons.

“The factual and legal basis of the complaint has not convinced the court that the unpleasantness that the appellant had to endure during the search did not exceed the boundary that differentiates the unpleasantness related to the search from torture, cruel or degrading treatment.”[57]

 The Chancellor of Justice thoroughly dealt with the search operation at the Murru Prison, during the course of which the prisoners were sent outside for 90 minutes, where the temperature was -3.4°C to +1.5°C.[58]

The Chancellor of Justice stated that in order to search a cell, it is possible to establish a danger zone around the officer and “other people or objects, which cannot be entered without the officer’s permission.” The officers have the right to weigh and decide the necessity of doing so, which they must do purposefully in order to guarantee safety. Based thereon, it is possible “to establish a danger zone that includes the entire living area”, although taking into account “the intensity of the restrictions on the prisoners’ freedom of movement that accompany this”, it must be an exception. The Chancellor of Justice stressed that “the Imprisonment Act does not specify a legal basis for restricting the prisoners’ freedom of movement in order to guarantee the efficiency of searches, i.e. in order to reduce the direct obstruction of searches, the opportunities for hiding prohibited items, to save time, etc.” If this legal basis is necessary, it must be written into the law.

In order to guarantee discipline, the constitutional right of the prisoners to health protection must not be violated.

“Pursuant to Constitution §18, a detainee… may not be placed in a place where his/her dignity is degraded. At the same time, §28(1) of the Constitution must be considered, pursuant to which everyone has the right to health protection. From this it follows that prisons in the performance of their functions must ensure the health protection of the prisoners in the best possible way within the limits of its possibilities and avoid placing prisoners in health-threatening conditions.”[59]

The Chancellor of Justice found that there was sufficient time to prepare for the operation and all its aspects could have been reckoned with without making the operation too complicated. However, in the given case, the limits of the law were exceeded and the prisoners’ right to health protection was violated.

The Supreme Court confirmed the obligation of detainees to submit to the orders of the prison officers even when they do not agree with the prison officers’ interpretation of the provisions of the law on which the order is based.

“[If] it is ascertained that the order given to the prisoner by the prison officer did not conform to the law, this does not mean that the prisoner who did not submit to the order did not violate the obligation to submit provided by §67(1) of the Imprisonment Act. The non-fulfilment of the order by the prisoner can be justified only if the order of the prison officer corresponds to the traits for an annulled administrative act as defined by §63(2) of the Administrative Procedure Act and the nullity of the order is clear. Pursuant to §63(1) of the Administrative Procedure Act, an annulled administrative act is invalid from the start and no one is obligated to fulfil it. …Only the different understanding of the law by the prisoner and the related opinion regarding the unlawfulness of the prison officer’s order does not grant the prisoner the right to refuse to fulfil the order. … the opposite position would render the guarantee of discipline in prisons significantly more difficult.”[60]

The routine use of handcuffs in the transport of prisoners serving life sentences was treated as a separate issue. This practice does not conform to §20(1) of the Constitution, which establishes everyone’s right to freedom and the security of person, which the use of handcuffs restricts. Before using such measures, their necessity should be thoroughly weighed in each specific case.[61]

The use of rooms that do not correspond to the requirements for cells in a custodial institution in order to guarantee discipline is not lawful. During his control visit, the Chancellor of Justice discovered that “a small metal structure with a rectangular floor surface, which resembled a closet more than a cell” was located at the Murru Prison. “Through a hole that was made in the ceiling a limited amount of sunlight and fresh air” entered the room. At the same time, there was no “possibility to sit, although the existence of a chair or bench would not necessary allow the prisoner to sit due the limited space in the structure.” The Chancellor of Justice supported the ruling of the Tallinn Administrative Court, by describing the use of the closet as a detention cell “as inhumane and degrading treatment.” According to the Chancellor of Justice, in certain cases, the “short-term placement of a prisoner in a room that does not totally conform to the requirements for a cell” may be justified. “However, the corresponding room must conform to the elementary requirements…” and the placement must not last for more than one hour. “At the same time, the use of the described temporary places of detention must be ruled out for the purposes of punishment or to pacify aggressive prisoners” since requirements have already been set for the cells to be used on these occasions.[62] Similar cells or closets were also found by the Chancellor of Justice at the Pärnu Detention Centre.[63]

In its final conclusions, the CAT calls attention to the violence between prisoners, which continues to occur at custodial institutions, and the insufficiency of the measures instituted for preventing and investigating this violence. The Committee recommended that all the incidents must be investigated, even the ones in which officers are supposedly involved.[64] The US report on the situation on human rights in Estonia also calls attention to the multitude of violent incidents both between the prisoners themselves and between the prisoners and the officers.

One aspect of the issue of security in custodial institutions is the security of the individual. The Chancellor of Justice is of the opinion that, in this case, measures should be employed that violated a person’s rights as little as possible, whether the restriction of the freedom of movement or the restriction of the right to one’s private life.

The Chancellor of Justice was approached by a person that had been placed in an isolated locked cell for half a year. The prison’s justification was that this was to guarantee the safety of the person. The Chancellor of Justice found that the measure did not have a legal basis.

“If the prison identified a danger to the safety of a prisoner, it had to implement other measures. Among other things, the prisoner could have been relocated within the prison (without restricting the prisoner’s right to move within the limits of the department), or according to §19(1) of the Imprisonment Act, the prisoner could have been relocated to another prison based on security considerations. Only prisoners that are a danger to the prison or to the security of the other prisoners can be placed in an isolated locked cell.”[65]

Another example is the Chancellor of Justice’s visit to the Tartu Prison, where he discovered that in the psychiatric department, the prisoners were being monitored by security cameras in their cells, through which the exposed hygiene corner can also be observed. “The head of the medical department justified the monitoring of the psychiatric department prisoners in their hygiene corners by the fact that according to statistics many suicides take place in the hygiene corner.” However, the Chancellor of Justice found that this is an unwarranted invasion into the person’s private life. Suicidal tendencies must be assessed in the case of each prisoner separately and measures must be employed that violate as few of the person’s rights as possible. In addition, the Chancellor of Justice thought it necessary to stress that security measures are only short-term measures. Attention must be turned to “the problems (mostly [mental]) that have resulted in the suicide attempt and to their solution.”[66]

 

Personal items and other property

The majority of the issues concerning the personal items of the detainees dealt with the restrictions on their possession during the time spent in the punishment cell, as well as during long-term visits.

In its memorandum, the Council of Europe’s Human Rights Commissioner pointed out the rule that prisoners may only take their toilet articles to the punishment cell. In this connection, it recalled the CPT recommendation from the 2003 report, in which it recommended that the detainees have access to more books and reading materials than the allowable prison regulations and the Bible. Although the officers justified this rule with the law, the Commissioner found that this is too strict and requires changing.[67]

The prohibition on taking writing supplies into the punishment cell is also problematic from the standpoint of human rights protection. In the opinion of the Chancellor of Justice, this results in the restriction of various rights guaranteed by the Constitution such as the right of recourse to the courts in order to protect one’s rights, because a written complaint is necessary or at least the opportunity to communicate with one’s defence counsel. At the same time, this affects the prisoner’s right to the inviolability of family and private life, since this restricts the opportunity to communicate with one’s family. Pursuant to the Imprisonment Act, correspondence may only be restricted if “it threatens the security or internal order of the prison or damages the goals of the implementation of the imprisonment”. Other restrictions exceed the permissible limits. The Ministry of Justice changed this regulation, by allowing writing supplies in the punishment cell, and thereby bring it into conformity with the Constitution.[68]

The prohibition on the prisoner taking personal items on long-term visits was discussed by the Supreme Court.[69] The Supreme Court took the position that “the interest of the prisoner in using his/her property, including personal items, everywhere in the prison’s territory is not included in the area protected by §32(2) of the Constitution [(right of ownership)]. … [I]n order to achieve the objective of imprisonment and guarantee the security of the prison, it [is] possible to specify different incarceration conditions in different parts of the prison. Therefore, the list of items allowed in the visitors’ room used for long-term visits need not coincide with the list of items allowed in the punishment cell.”[70] At the same time, the court found that the restrictions on the items that can be taken along on long-term visits are based on the goal of “guaranteeing that after the end of the visit, the prisoner does not gain possession of items that he/she did not have when first arriving at the prison and which are not acquired through the prison.”[71] Any restrictions must be reasonable and purposeful.[72]

The Human Rights Commissioner also raised the question of the funds on the prisoner’s personal account. The prison administration deposits all withheld monies in this account. Of the funds in the account, 50% goes to compensate victims and 20% is placed in a savings account that is given to the prisoner upon release. The prisoner has the free use of the remaining funds while in prison. The Commissioner acknowledges the positive objective of this rule, but was concerned that the funds sent by the prisoner’s family to improve his/her living conditions are deposited in this same account because the detainee can only use 30% of those funds. The Commissioner recommended that this system be changed.[73]

Education

It is possible to acquire a basic, upper secondary and vocational education in prison. In its written answers to the CAT’s questions, the Estonian government admitted that they have had problems guaranteeing the necessary space. In the new prisons, the space exists. The non-Estonian prisoners have the opportunity to take Estonian courses. In 2007, a fee started to be paid in order to motivate the prisoners.[74]

Under-aged detainees in provisional custody are guaranteed basic and upper secondary education if they are detained for more than one month.[75] During visits to detention centres, the Council of Europe’s Human Rights Commissioner discovered that detainees under 15 years old were not provided access to entertainment activities or schoolbooks. They also did not have a teacher, despite the fact that they had been held for several weeks.[76]

Correspondence and other communication with the outside world

On 1 February 2007, an amendment to the law came into force whereby detainees were provided with unrestricted rights to meet with legal representatives in addition to clerics, defence counsels and notaries.[77] This was previously problematic.

However, the restriction on using the phone may significantly restrict the right to meet with representatives. In answering a petition in the year prior to the amendment to the law coming into force, the Chancellor of Justice referred to the fundamental right to the help of defence counsel based on the Constitution, as well as article 6(3) (b) of the European Convention on Human Rights, pursuant to which “the accused must at least have the right to sufficient time and opportunity to prepare his/her defence.”[78] Restrictions on the right must “be necessary and preserve the right to make calls to a reasonable extent” and not to distort “the nature of the detained person’s right to make calls so that it may essentially make communications with the official of the institution or with defence counsel impossible”. [79] The established restrictions must be temporary and be based on extraordinary events (“for instance, disorders on the prison territory, problems with the telephone network”).[80]

The Supreme Court found that in the application for telephone use, the detainee may be required to name the person whom he/she wishes to call outside the schedule, in order to make sure that the person is one with whom the custodial institution cannot restrict communications. The detainee cannot be required to explain the purpose of the phone call, since this violates the right to the confidentiality of messages, which is based on §43 of the Constitution.[81] This principle has also been confirmed by the Supreme Court.[82]

Both the Chancellor of Justice and the Supreme Court have had to deal with the right to the confidentiality of messages on several occasions. For instance, in the course of a control visit to the Harku Prison, the Chancellor of Justice discovered that prison officers only accepted letters to be sent to the Chancellor of Justice in unsealed envelopes and that their contents were checked visually in the presence of the prisoners. “The letters received by the prisoners from the Chancellor of Justice were also opened in the presence of the prisoners in order to check the contents of the envelopes and the possible existence of prohibited items.”[83] This violates the rule whereby the correspondence and phone conversations of the prisoners with defence counsels, prosecutors, courts, Chancellor of Justice and the Ministry of Justice may not be checked.[84]

The question of paying for phone calls is related to the right to use the phone. In its case, the Supreme Court’s departure point for this issue has become the objective of extra-prison communications, which is “to promote contacts between the detainees and their families, relatives and other people close to them, in order to prevent the cessation of the detainees’ social ties.” At the same time, the detainees cannot demand that the state pay for the phone calls, while connecting this obligation to the detainees’ person accounts is wrong. Such “an interpretation would prohibit collect calls as well as the use of ‘chargeable’ pre-paid calling cards (e.g. Voicenet calling cards) and would unreasonably prevent … the opportunities of detainees that have no money on their personal accounts for extra-prison communications (including communications with defence counsel).” [85] The Chancellor of Justice came to a similar conclusion,[86] adding that “when choosing a calling service provider, [the prison] must give priority to a service provider whose service allows the requirements pursuant to the Imprisonment Act to be fulfilled (including the making of collect calls). The prison may not justify its activities in respect to a service provider by the fact that the actual opportunities of the detainees to communicate with those close to them are restricted to a greater extent than the law allows.”

Access to books and other reading materials, as well as to television and radio is a separate topic. The Council of Europe’s Human Rights Commissioner was concerned that these possibilities were restricted or lacking in some of the detention centres that he visited. Such a situation is not acceptable.[87]

The Supreme Court also dealt with a case related to the access to information that involved the possibility to use the electronic edition of the Riigi Teataja and the electronic database of the cases of the European Court of Human Rights. The Supreme Court is of the opinion that everyone, including detainees, must have the opportunity to become acquainted with legal provisions, which among other things, allows a person to effectively protect his/her rights.[88] Whereas the court found “that the opportunity to become familiar with legal provisions cannot be considered sufficient if this is possible only be applying for specific legislation from the prison. [This primarily because] the detainee need not know which legislation regulates the area of activity he/she is interested in, and it cannot be assumed or demanded that he/she be able to name the necessary legal instruments.” Although the court admitted that the electronic version of the Riigi Teataja would probably be most practical for this purpose, it is sufficient “if the detainee can freely examine the printed version and use a dictionary of keywords to find the legislation.”[89]

In connection with the database of decisions of the European Court of Human Rights, the Supreme Court referred to §44(1) of the Constitution, which establishes everyone’s right to receive freely distributed information. This is an unlimited right, “and therefore this right can be restricted only on the basis of other provisions of the Constitution.” In any case, such a restriction must be clearly expressed, which cannot be said about the provisions of the Imprisonment Act. Therefore, at this time, unrestricted access to the decisions of the European Court of Human Rights must be guaranteed.[90]

 


[1] Within the framework of this review, the only custodial institutions that were examined are prisons and detention centres. Psychiatric institutions, primarily in respect to coercive treatment, were outside the scope of the review although there are problems and topics that need to be considered. The Citizenship and Migration Board’s expulsion centres are also outside the scope of this review.

[2] Memorandum of the Human Rights Commissioner.

[3] Law to amend the Chancellor of Justice Act, RTI, 08.02.2007, 11, 52.

[4] Ministry of Justice, Vanglate ja kriminaalhoolduse aastaraamat, Tallinn 2008, pg. 21.

[5] According to the Development Plan of the Ministry of Justice until 2012, (approved by Directive no. 8 of the Minister of Justice from 2008), the plan is to have four prisons in Estonia in 2012: Tallinn, Tartu, Viru and Murru Prisons. By 2015, there are also plans to close the Murru Prison (pg. 26).

[6] Tartu, Võru, Põlva, Valga, Viljandi, Jõgeva, Tallinn (Northern Police Prefecture Detention Centre), Pärnu, Kärdla, Paide, Rapla, Haapsalu, Kuressaare, Kohtla-Järve, Narva, and Rakvere Detention Centres.

[7] Development Plan of the Ministry of Justice until 2012, pp. 26-27. Prison yearbook, pg. 3.

[8] Development Plan of the Ministry of the Interior 2008-2011, pp. 10-11; UN Committee against Torture, Written answers to explanatory questions (CAT/C/EST/Q/4), which have arisen in connection with the review of Estonia’s fourth periodic report (CAT/C/80/Add.1), UN document no. CAT/C/EST/Q/4Add.1 (30.10.2007), cl. 91.

[9] UN Committee against Torture, Conclusions and recommendations, UN document no. CAT/C/EST/CO/4 (22.11.2007), cl. 6.

[10] Council of Europe’s Committee of Ministers, resolution CM/ResDH(2007)32—Information on the measures taken to comply with the judgment in the case of Alver against Estonia.

[11] Memorandum of the Human Rights Commissioner, cl. 36-39—referring primarily to the Rakvere and Kohtla-Järve Detention Centres, although adding that based on the collected information, similar circumstances can also be concluded to exist in other detention centres throughout Estonia.

[12] Memorandum of the Human Rights Commissioner, cl. 45 – “The planned opening of new detention centres cannot be seen as an excuse to legitimise intolerable conditions”.

[13] 2006 Report of the Chancellor of Justice, pg. 124.

[14] Development Plan of the Ministry of Internal Affairs 2009-2012, Annex 1.

[15] Criminal Policy Studies, pg. 159. Also see the Prison yearbook, pg. 25. Pursuant to the Development Plan of the Ministry of Justice until 2012, “as of 26 October 2007, 132 persons had been transferred to electronic surveillance, of whom … 3 persons have been sent back to prison as a result of violating the electronic surveillance rules. Compared to previous years, the number of those on early release has doubled…” (pg. 20).

[16] Conclusions and recommendations of the UN Committee against Torture, cl. 19.

[17] Development Plan of the Ministry of Justice until 2012, pp. 24-25.

[18] Ibid, pg. 27.

[19] Summary of the control visit of the Chancellor of Justice, 01.2008 no. 7-7/071756/0800030.

[20] Chancellor of Justice, Proposal for eliminating violations, 07.2007 no. 7-4/070176/00705422.

[21] Chancellor of Justice, Control visit to the Murru Prison 16.04.2007—summary.

[22] Memorandum of the Human Rights Commissioner, cl. 28.

[23] Chancellor of Justice, Control visit to the Pärnu Detention Centre 22.05.2007, cl. 3.2

[24] Chancellor of Justice, Control visit to the Harku Prison 6.02.2007; and Chancellor of Justice, Control visit to the Pärnu Detention Centre. 22.05.2007.

[25] Summary of the control visit of the Chancellor of Justice, 01.2008 no. 7-7/071756/0800030.

[26] Chancellor of Justice, Proposal for eliminating violations, 07.2007 no. 7-4/070176/00705422, deals with the Kohtla-Järve Detention Centre; Summary of the control visit, 11.2007 no. 7-7/071415/00707664, Kärdla Detention Centre; Summary of the control visit, 11.2007 no. 7-7/071415/00707663, Põlva Detention Centre. The same problem was also discovered by the Chancellor of Justice on his control visit to the Murru Prison, 16.04.2007, and the Psychiatric Department of the Tartu Prison, Case no. 7-2/060237, 2006 Report of the Chancellor of Justice, pp. 200-204.

[27] Chancellor of Justice, Summary of the control visit, 11.2007 no. 7-7/071415/00707664.

[28] Ibid and Chancellor of Justice, Proposal for eliminating violations, 07.2007 no. 7-4/070176/00705422: “The Chancellor of Justice and the CPT have ascertained on several control visits that the custodial conditions at the Kohtla-Järve Detention Centre are inhuman and degrading.”

[29] Summary of the control visit of the Chancellor of Justice, 01.2008 no. 7-7/071756/0800030.

[30] Memorandum of the Human Rights Commissioner, cl. 29.

[31] Conclusions and recommendations of the UN Committee against Torture, cl. 19.

[32] Chancellor of Justice, control visit to the Pärnu Detention Centre. 22.05.2007.

[33] Case no. 7-1/051113, 2006 Report of the Chancellor of Justice, pp. 196-199.

[34] Pg. 10. See also Development Plan of the Ministry of the Interior 2009-2012.

[35] Development Plan of the Ministry of Justice until 2012, pg. 26.

[36] Ibid, pg. 10.

[37] Conclusions and recommendations of the UN Committee against Torture, cl. 9.

[38] Prison yearbook, pg. 10.

[39] Chancellor of Justice, Summary of control visits, 11.2007 no. 7-7/071415/00707663.

[40] Supreme Court case 3-3-1-70-07 (12.12.2007), cl.13.

[41] Chancellor of Justice, Proposal for the eliminating violations, 03.2007 no. 7-4/070146/00701708.

[42] Chancellor of Justice, Control visit to the Pärnu Detention Centre, 22.05.2007, cl. 1.3.

[43] Chancellor of Justice, Proposal for the eliminating violations, 03.2007 no. 7-4/070146/00701708.

[44] Case no. 7-2/060237, 2006 Report of the Chancellor of Justice, pp. 200-204.

[45] Chancellor of Justice, Proposal for the eliminating violations, 03.2007 no. 7-4/070146/00701708; Chancellor of Justice, Control visit to the Pärnu Detention Centre, 22.05.2007, cl. 2.1.

[46] Chancellor of Justice, Control visit to the Pärnu Detention Centre, 22.05.2007, cl. 2.1.

[47] Chancellor of Justice, Proposal for the eliminating violations, 03.2007 no. 7-4/070146/00701708, where the Chancellor of Justice found that this conditions is not fulfilled at the Narva Detention Centre.

[48] Supreme Court case no. 3-3-1-70-07, cl. 12.

[49] Chancellor of Justice, Proposal for the eliminating violations, 03.2007 no. 7-4/070146/00701708.

[50] Conclusions and recommendations of the UN Committee against Torture, cl. 14.

[51] Prison yearbook, pg. 10.

[52] Conclusions and recommendations of the UN Committee against Torture, cl. 19

[53] Development Plan of the Ministry of Justice until 2012, pg. 26.

[54] Memorandum of the Human Rights Commissioner, cl. 34.

[55] Ibid, cl. 35.

[56] Pg. 26. See also Criminal Policy Studies, pg. 163.

[57] Case 3-3-1-40-07 (6.09.2007), cl. 12.

[58] Case no. 7-1/050545, Report of the Chancellor of Justice, pp. 180-184.

[59] Ibid.

[60] Court case no. 3-3-1-103-06 (01.03.2007), cl. 14.

[61] Case no. 6-10/060972, 2006 Report of the Chancellor of Justice, pp. 160-161.

[62] Chancellor of Justice, control visit to the Murru Prison, 16.04.2007 – summary.

[63] Chancellor of Justice, control visit to the Pärnu Detention Centre, 22.05.2007, cl. 5.1 and 5.2

[64] Conclusions and recommendations of the UN Committee against Torture, cl. 16.

[65] Case no. 7-1/060395, 2006 Report of the Chancellor of Justice, pp. 171-174.

[66] Case no. 7-2/060237, 2006 Report of the Chancellor of Justice, pp. 200-204.

[67] Memorandum of the Human Rights Commissioner, cl. 30.

[68] Cases no. 7-1/050670, 7-1/051659, 7-1/060507, 2006 Report of the Chancellor of Justice, pp. 157-160.

[69] Court case no. 3-3-1-29-07 (21.06.2007).

[70] Ibid, cl. 19.

[71] Ibid, cl. 14.

[72] Ibid, cl. 12.

[73] Memorandum of the Human Rights Commissioner, cl. 31.

[74] UN Committee against Torture, Written answers, cl. 96. Prison yearbook, pg. 9

[75]. UN Committee against Torture, Written answers, cl. 93.

[76] Memorandum of the Human Rights Commissioner, cl. 43.

[77] Report of the Chancellor of Justice, pg. 125. In its case 3-3-1-46-07 (13.11.2007), the Supreme Court specified that the defence counsel in the meaning provided below primarily means “a defence counsel in the context of a criminal or misdemeanour proceeding” and “in the case of a representative in the context of a civil or administrative proceeding, the importance of the making the call should be assessed and there should be a good reason for calling outside the schedule.

[78] Case no. 7-4/060144, 2006 Report of the Chancellor of Justice, pp. 189-191.

[79] Supreme Court case 3-3-1-54-07 (31.07.2007), cl. 9.

[80] Supreme Court case 3-3-1-46-07 (13.11.2007), cl. 10.

[81] Ibid, cl. 11. See also Supreme Court case 3-3-1-46-07 (13.11.2007), cl. 11.

[82] Supreme Court case 3-3-1-103-06 (01.03.2007). See also case no. 3-3-1-69-07 (12.12.2007).

[83] The control visit of the Chancellor of Justice to Harku Prison 6.02.2007. See also Supreme Court case 3-3-1-103-06 (01.03.2007), cl. 11.

[84] Imprisonment Act, RT I 2000, 58, 376, §29(4).

[85] Supreme Court case 3-3-1-103-06 (01.03.2007), cl. 9.

[86] Recommendation of the Chancellor of Justice no. 7-4/070094/0701851 (03.2007). This was also confirmed by the Supreme Court in case 3-3-1-46-07 (13.11.2007), cl. 9.

[87] Memorandum of the Human Rights Commissioner, cl. 42.

[88] Court case 3-3-1-20-07 (31.05.2007), cl. 9.

[89] Ibid, cl. 10.

[90] Ibid, cl. 14.

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