More than half of Estonia's prisoner population are addicted to drugs, which is why Rait Kuuse, undersecretary at the Ministry of Justice, considers it vital that prisons are kept free of all forms of illegal substances.

"All reintegration activities can only take place on prison premises if they are safe, and if there is no access to intoxicating substances or dangerous objects," Kuuse said. "And unfortunately, we see that visitors are one of the main risks, with attempts  made to bring various substances and objects onto the prison territory, from drugs to prohibited communication devices."

According to Kuuse, the work of prisons has been made more difficult by society's increasingly tolerant attitude towards drugs. Court rulings protecting the dignity of visitors do not help either.

"For example, from last year, a thorough search of all visitors is no longer possible due to case law," Kuuse said. " This, in turn, means prisons are actually under even more pressure when it comes to the things people bring in."

The explanatory memorandum accompanying the ministry's draft bill states that even if a meeting is held with a glass partition between an inmate and a visitor, the visitor can hide a substance they have brought into the prison with them, in the toilet for example. The prisoner who later cleans that toilet can retrieve the illegal substance and subsequently hand it to its intended recipient.

Social media accounts and data collected by other research bodies

The draft explanatory memorandum does mention background checks. However, Kuuse said that the proposed amendment does not imply any major changes to the law. Rather, the ministry wants to clarify the current rules in order to ensure everyone is aware of the rules regarding what can and cannot be checked.

The draft bill would introduce a clause into the Imprisonment Act explicitly allowing background checks to be carried out on visitors who come to meet with inmates. The law would also outline which specific data may be processed during such background checks. A ministerial decree would spell out in more detail the scope of the checks to which prison staff, other people on prison premises and visitors to prisoners would be subject to.

For employees, the list of checks is longer. For example, the prison service would be able to check whether a person applying for a job or attending a prison service college has visited Russia in the previous five years. It could also be possible to check whether a person has previously been brought to the police's attention for alcohol abuse.

The checks for inmates' visitors would include details of their social media accounts, their economic activities, whether they are suspect in any ongoing criminal cases and if they have committed any drug-related offenses in the last ten years. In addition, information from prison and other investigative bodies, may be used to identify the person's links with others involved in criminal activities.

The results of these background checks may be used to determine whether a person is allowed to attend a meeting with an inmate.

"We also have the possibility of meetings using a glass partition," said Kuuse. "However, we have to be prepared to provide very precise reasons as to why we would not allow a direct meeting. This is also something new for us due to case law over the last couple of years," he added, noting that the results of background checks can help when providing the required justification.

Supreme Court concerned

The Office of the Chancellor of Justice, which provided feedback on the draft, praised the ministry for clarifying the background check provisions, adding that it did not see a problem with more thorough checks for people applying to work for the prison service.

"However, it is still doubtful whether such a comprehensive collection of data on other persons who come into contact with prisons is proportionate," wrote Olari Koppel, director of the Office of the Chancellor of Justice.

The Supreme Court of Estonia noted that background checks on prison visitors raise questions. The court explained that such meetings are important for both those being held and their families.

Even if the personal data of those who come to meet inmates in prison is provided accurately, they do not have a free choice in this respect as to whether the meeting is necessary in exercising their fundamental rights," the court noted. "Nor should it have a negative effect on detainees' ability to communicate with people from outside prison."

Kuuse does not believe it to be a major problem if someone close to a detainee who has been in trouble with the law is unable to attend a meeting due to the results of a background check.

"If the benefits of re-socialization are very close encounters with people with similar behavior, one might be slightly doubtful as to whether this is a very good thing for a future law-abiding person," Kuuse explained.

He added that each case would be assessed on an individual basis, and noted that a draft bill currently before the Riigikogu could allow alternatives to face-to-face meetings.

"As a result of this, it will also be possible to meet with prisoners via video conference. Which in turn will remove the risks that are discussed more in this draft," Kuuse said. 

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