CHANCELLOR OF JUSTICE AS NATIONAL PREVENTIVE MECHANISM PART III PART II PART I I INTRODUCTION 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 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 Overview.2 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. In 2011, the Government promised to amend the Penal Code4 but has not yet done so. Previously, the European Court of Human Rights has found a violation of Article 3 (i.e. prohibition of torture) of the European Convention on the Protection of Human Rights and Fundamental Freedoms by Estonia on two occasions.5 In 2012, one more judgment to this effect was 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 There are almost 150 establishments in Estonia qualifying as places of detention within the meaning of OPCAT. The majority of them are police detention facilities and social welfare institutions. The choice of the establishments to be inspected is made when drawing up the 1 2 3 4 5 6 2 7 See the Chancellor of Justice Act § 1(7). Available online: http://www.legaltext.ee/text/en/X30041K8.htm. 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: http://www.vm.ee/?q=node/10128. Replies of the Government of the Republic 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). (3 May 2010, CCPR/C/ EST/Q/3/Add.1, p 66.) Replies of the Republic of Estonia to the list of issues prior to the submission of the fifth periodic report on implementation of the International Convention Against Torture, p 1 (available online: http:// www.vm.ee/sites/default/files/CAT_Replies_of_Estonia.pdf). 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. In the case Julin v. Estonia the European Court of Human Rights found that the state had violated the applicant’s rights under Art 3 by confining him to a restraint bed. A violation of Art 6 para 1 was also found in connection with the applicant’s right of access to the court with a complaint against his strip search. No violation was found in connection with the use of force and handcuffs or in connection with a search or investigation of claims of ill-treatment raised by the applicant (Art 3, under the so-called procedural limb); as well as in connection with the applicant’s right of access to the court with complaints against the conditions of his detention (Art 6 para 1) (European Court of Human Rights judgment of 29 May 2012 in cases No 16563/08, 40841/08, 8192/10 and 18656/10). On distinctions between places of detention and the so-called open establishments, see the Chancellor’s 2010 Overview, p 7.