CHANCELLOR OF JUSTICE AS NATIONAL PREVENTIVE MECHANISM Previously, the European Court of Human Rights has found a violation of Article 3 (establishing a prohibition of inhuman or degrading treatment) of the European Convention on the Protection of Human Rights and Fundamental Freedoms by Estonia on three occasions.5 In 2013, two more judgments to this effect were made.6 Under the Optional Protocol, places of detention mean all places where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (Article 4 para 1). The notion of “deprivation of liberty” means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority (Article 4 para 2). In other words, in addition to state custodial institutions, places of detention include all other institutions, regardless of their form of ownership, where the liberty of persons is restricted by order of a public authority or with its consent or acquiescence and from where persons are not permitted to leave at will. Thus, places of detention include not only prisons and police detention centres but also closed wards at psychiatric hospitals, care homes, etc.7 For example, an indication that the fundamental right to liberty of recipients of nursing care services may be restricted with the knowledge of the state was found in the Health Board’s 2011 analysis of the providers of nursing care services8, as well as in the 2011 annual summary of the incidents in nursing care compiled by the Estonian Patient Advocacy Association9. Inspection visits by the Chancellor of Justice have 1 2 3 4 5 6 7 8 9 See the Chancellor of Justice Act, § 1(7). Available online: https://www.riigiteataja.ee/en/eli/ee/Riigikogu/act/508012014001/consolide. See the Chancellor of Justice 2010 Overview, p 6. Available online: http://oiguskantsler.ee/sites/default/files/overview_2010.pdf. Conclusions and recommendations of the Committee against Torture. Estonia. 22 November 2007, CAT/C/EST/ CO/4, p 8; Concluding observations of the Human Rights Committee. Estonia. 28 July 2010, CCPR/C/EST/CO/3, p 7. Available online in Estonian: https://www.riigiteataja.ee/akt/112072014005. European Court of Human Rights judgment of 8 November 2005 in case No 64812/01, Alver v. Estonia; judgment of 2 July 2009 in case No  41653/05, Kotšetkov v. Estonia; judgment of 29 May 2012 in cases No 16563/08, 40841/08, 8192/10 and 18656/10, Julin v. Estonia. European Court of Human Rights judgment of 28 March 2013 in case No 10195/08, Korobov and Others v. Estonia; judgment of 19 December 2013 in case No 429/12, Tunis v. Estonia. On distinctions between places of detention and the so-called open establishments, see the Chancellor’s 2010 Overview, p 7. Available online: http://oiguskantsler.ee/sites/default/files/overview_2010.pdf. Available online in Estonian: http://www.terviseamet.ee/fileadmin/dok/Tervishoid/JO_tulemused_hooldusasutustes.pdf. Available online in Estonian: http://www.epey.ee/public/files/KOKKUV%C3%95TE%20HOOLDUSRAVI%20 JUHTUMITEST%20N%C3%84IDETEGA.pdf. PART II What constitutes the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment (hereinafter also called ill-treatment) was explained in more detail in the Chancellor of Justice 2010 Overview2. There it was also pointed out that the definition of torture established in §  122 of the current Penal Code of Estonia is not compatible, in the opinion of international organisations (e.g. the UN Committee against Torture and the Human Rights Committee3), with the definition of torture established under international conventions binding on Estonia. The Ministry of Justice initiated a Draft Act for amending the Penal Code and the relating legislation, § 2901 of which will establish torture as a separate punishable criminal official misconduct. The Act for amending the Penal Code was adopted by the Riigikogu on 19 June 2014 and will enter into force on 1 January 2015.4 PART III The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) was adopted on 18 December 2002. Estonia signed the Protocol on 21 September 2004 and it entered into force in respect of Estonia on 17 January 2007. In Estonia, the Chancellor of Justice performs the functions of the national preventive mechanism since 18 February 2007.1 PART I INTRODUCTION PART IV I. 7