According to article 5 of the UN Universal Declaration of Human Rights, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This prohibition is considered an absolute human right and a principal value of a democratic society, and deviations are not allowed in a state based on the rule of law. The right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment has been also been reflected in both global and regional international documents on human rights, in addition to the UN Declaration of Human Rights. This right has been established in the Constitution of the Republic of Estonia, according to § 18 (1) of which no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
On 01.06.2002, Estonia joined the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that was accepted in the UN on 10.12.1984 and entered into force on 26.06.1987. The aim of this convention is to fight torture all over the world.
On 18.12.2002, the UN accepted the Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Republic of Estonia signed this protocol on 21.09.2004 and it entered into force for Estonia on 27.11.2006.
According to this protocol, each Member State shall designate or establish at least one independent national preventive mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment at the domestic level with the aim of examining the activity of places of detention based on this objective. In Estonia, this institution is the Chancellor of Justice.
The Chancellor of Justice as national preventive mechanism
According to the Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the tasks of the national preventive mechanisms are as follows:
- to regularly examine the treatment of persons deprived of their liberty in places of detention, with a view to strengthening, if necessary, their protection against ill-treatment;
- to make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent ill-treatment, taking into consideration the relevant norms of the United Nations;
- to submit proposals and observations concerning existing or draft legislation.
According to the Chancellor of Justice Act § 27 (3), a place of detention shall ensure to the Chancellor of Justice during a inspection visit:
- unrestricted access to information necessary for verifying whether the inspected establishment complies with the principle of guaranteeing fundamental rights and freedoms and the principle of good administration;
- unrestricted access to information concerning persons staying in the establishment and their conditions of detention and location;
- access to the premises and territory of the inspected establishment;
- an opportunity to talk, without the presence of others, to each person whose rights are restricted in the establishment as well as the staff.
Supervision authorities are also required to provide official assistance pursuant to subsection (4) of the same section.
The Chancellor of Justice regularly carries out inspection visits of the places of detention. The places to be examined and the schedule of inspection visits are set in his annual work schedule. The work plan does not include unannounced inspection visit, which take place according to the need. For example, after receiving information on ill-treatment that has taken place.
The selection of places of detention and the frequency of visits is based on criteria as the nature of the institution, number of detainees, the flow rate detainees in this institution, risk of ill-treatment, etc. The Chancellor of Justice tries to visit each place of detention at least once every three years. An inspection visit may be announced or unannounced, occur during the day or at night, on a weekday or at the weekend. The Chancellor of Justice may invite experts (e.g. GPs or psychiatrists) and people who know the conditions (e.g. wheelchair users) to attend inspection visits or carry out the visits in cooperation with a state supervision agency (e.g. the State Agency of Medicines, the Social Insurance Board or the Rescue Board).
During an inspection visit, the Chancellor of Justice and his advisers have a private conversation with the staff of the institution, as well as the detainees. A tour of the institution is carried out to inspect the living conditions of the persons staying there and to ascertain whether the situation in the institution makes it possible to prevent torture as well as inhuman and degrading treatment, to check how health services are organised, to examine relevant databases and documents etc.
The form and other details of proceedings are determined by the Chancellor of Justice according to expediency, simplicity and speed, in a manner that prevents excessive spending and inconvenience for people. If the law stipulates exact requirements for proceedings, the Chancellor of Justice will proceed from the relevant requirements. The Chancellor of Justice may authorise his or her deputy adviser or an adviser to carry out the necessary activities.