CHANCELLOR OF JUSTICE AS THE PREVENTIVE MECHANISM I. INTRODUCTION We can talk about human rights in the modern sense since 10 December 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights. Although it is not an ordinary binding international treaty, its provisions have become accepted as customary international law. Prohibition of torture is contained in Article 5 of the Universal Declaration of Human Rights: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prohibition is considered an absolute human right and a fundamental value in a democratic society, from which no derogations are permissible in a state governed by rule of law (including in crisis situations or in times of war). In addition to the UN Universal Declaration of Human Rights, the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment (further in the text also called ill-treatment) is also included in other global as well as regional human rights instruments, for example in Article 7 of the UN Covenant on Civil and Political Rights, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Article 4 of the Charter of Fundamental Rights of the European Union, etc. Specific mention could be made of the relevant special topical convention – the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987), which entered into force in respect of Estonia on 20 November 1991. Naturally, the prohibition of torture is also enshrined in different national constitutions (e.g. § 18 of the Estonian Constitution under which no one shall be subjected to torture, cruel or degrading treatment or punishment). Torture is one of the forms of ill-treatment alongside cruel, inhuman or degrading treatment or punishment. Drawing a strict borderline between different forms of ill-treatment has generally not been considered necessary in practice. Distinction depends on the combined effect of many different circumstances – the nature of ill-treatment, its purpose, severity and circumstances of a particular case (e.g. gender, age, health of the victim; existence of aggravating circumstances etc). Under Article 1 of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, torture means any act by which severe physical or mental pain or suffering is intentionally inflicted on a person − to obtain from him or a third person information or a confession; − to punish him for an act he or a third person has committed or is suspected of having committed; − to intimidate or coerce him or a third person; − or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Thus, the concept of “torture” consists of three elements: (1) causing physical or mental pain or suffering (an objective element); (2) intentionality and a specific purpose (a subjective element); (3) the perpetrator’s relation to public authority. As concerns the Penal Code currently in force in Estonia, according to the assessment of international bodies (e.g. the Committee against Torture) the definition of torture in § 122 of the Code does not conform to the above concept. The Ministry of Justice has promised to analyse the need to amend the Penal Code in 2011. If someone in Europe was asked whether torture or other forms of ill-treatment are permissible, the obvious first reaction would be “No”. In developed countries, ordinary people understand torture or any     In more detail about distinctions between different forms of ill-treatment, see the Chancellor of Justice 2008 Overview. Available online: http://www.oiguskantsler.ee/public/resources/editor/File/Overview_2008(1).pdf. Explanations and other relevant references are also available on the Chancellor of Justice homepage at: http://www.oiguskantsler.ee/?menuID=316. Conclusions and recommendations of the Committee against Torture. Estonia. 19.02.2008, CAT/C/EST/CO/4, p 8; Concluding observations of the Human Rights Committee. Estonia. 04.08.2010, CCPR/C/EST/CO/3, p 7. Available online: http://www.vm.ee/?q=node/10128. Replies of the Government of Estonia to the list of issues (CCPR/C/EST/Q/3) to be taken up in connection with the consideration of the third periodic report of Estonia (CCPR/C/EST/3). 03.05.2010, CCPR/C/EST/ Q/3/Add.1, p 66.