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Chancellor of Justice: Imprisonment Act Contravenes Constitution

Chancellor of Justice Indrek Teder has submitted to the Riigikogu a proposal to make the Imprisonment Act comply with the Constitution.

Based on information obtained from petitions received by Chancellor of Justice Indrek Teder and on inspections of custodial institutions, the Chancellor of Justice considered it necessary to analyse whether the restriction on the freedom of movement and communication of people arrested for the duration of criminal proceedings and held in custody pending trial complies with the Constitution. As a result of the analysis the Chancellor of Justice found that the provisions of the Imprisonment Act which require the prison service to keep all arrested persons without exception in a locked cell for the entire time they are under arrest (which may be for months or even years) and to restrict communication between persons held in custody contravene the Constitution.

The Chancellor of Justice finds that the requirement that forces the prison service to constantly keep all arrested persons without exception in locked cells and to obstruct communication between persons held in different cells has been phrased without any discretion. “The courts, the prosecutor, the investigative bodies and the prison service currently have no discretion to consider whether the threat posed by a specific person and the status of ongoing criminal proceedings would make it possible to alleviate the restriction on the freedom of movement and communication within the prison of the persons held in custody pending trial,” the Chancellor of Justice said. He emphasised that a person in custody is a person who has not been convicted in a court and that according to the Constitution nobody should be treated as a person guilty of a crime before a court ruling about the person has been enforced. He added that the lack of discretion in the disputed provisions leads to a situation where the fundamental rights of many persons held in custody whose arrests are not associated with damage to criminal proceedings or the danger that new crimes will be committed are excessively infringed due to these provisions.

The Chancellor of Justice is of the opinion that the effective Imprisonment Act also restricts the offering of meaningful activities to persons held in custody, as it requires a restriction on communication within the prison and thereby intensifies the infringement of privacy. At present, those in custody must be held in cells at a time when they are not working or studying, but in reality this means that the majority are locked in their cells 23 hours per day (they have the option of spending one hour in the fresh air), as there is not enough full-time work even for those who have been convicted and the requirement to keep persons separate significantly restricts study activities, as those being held in custody cannot be taught with those being held in other cells.