Ill-treatment is torture and cruel, inhuman or degrading treatment or punishment.
The right of not being subject to torture or any other form of ill-treatment is considered one of the main principles of a state based on the rule of law. This right protects a person from torture in its regular meaning (a police officer is not allowed to beat a person held in custody for questioning), as well as their dignity, physical and psychological integrity as a whole. Thus, in the practice of the European Court of Human Rights, it has been considered an ill-treatment to forcefully shave the head of a person before a hearing in a few days, placing a non-smoking detainee into the same room with smokers for years, long-term overpopulation of a detention room and unsanitary conditions, deprivation of medical help in a place of detention, etc.
According to Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Based on the aforementioned, the three characteristics of torture are:
- causing severe physical or mental suffering;
- intent and certain aim („[---] for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind[---]".);
- connection of the offender with public authority (“[---] 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".).
International documents bring out different forms of ill-treatment next to torture, e.g., cruel, inhuman or degrading, inhuman or degrading. § 18 of the Constitution of the Republic of Estonia refers to torture and cruel or degrading treatment or punishment. However, the Optional Protocol of the aforementioned UN Convention does not explain the concepts of other forms of forbidden treatment, that is, it does not explain the contents of cruel, inhuman or degrading treatment and punishment.
It is not possible to draw a strict line between different manifestation forms of ill-treatment. Their differentiation depends on interaction of several circumstances – the nature of ill-treatment (what is it about), its purpose (knowing and intentional causing of suffering), severity (duration of ill-treatment, physical and psychological consequences) and other circumstances of the case (e.g., gender, age, medical condition of the victim; interaction of aggravating circumstances, etc.).
Place of detention
According to the UN Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a place of detention is a place where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its investigation or with its consent or acquiescence. 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.
As an explanation to considering a private supervisory authority a place of detention it should be added that according to the UN Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, places of detention are in addition to national custodial institutions (incl. state authorities) also all other authorities regardless of their form of ownership, if these institutions limits the freedom of persons by order, consent or acquiescence of public authority, which the person is not permitted to leave. Thus, places of detention also include, in addition to prisons or houses of detention, psychiatric hospitals providing treatment against one’s will, special schools for children needing special treatment due to behavioural problems, social welfare institutions providing special care, military units of compulsory service, disciplinary detention and arrest, etc.