Restraining at Care Institutions Evaluated from the Standpoint of Penal Law

Abstract

The connection of restraining measures and necessary elements of a criminal offence may be twofold. First, restraining measures can correspond to actions described in legal provisions of the special part of the Penal Code. It means that the restraining person could be charged under criminal law. Secondly however, it needs to be noted that in some cases, liability under criminal law may follow when restraining measures are not being used - a person may become liable for committing a crime by failing to act. Thus, the job of a caretaker involves a high level of responsibility and danger in the sense of penal law - a punishment may follow both for doing something and also for failing to act.

Upon the implementation of restraining measures, several constitutions of the special part of the Penal Code may become relevant. However, the primary provision to view here is Article 136 of the Penal Code (unlawful deprivation of the liberty of another person). Therefore, the article mainly focuses on this provision and also analyses some other provisions of the special part of the Penal Code that may become relevant. It also addresses general circumstances excluding illegality, i.e., the circumstances to be considered not only in care institutions but also almost everywhere else. After this, the article analyses specific circumstances excluding illegality, that is the circumstances relevant within the context of the topic of the article.

Since there is very little legal literature (and case law) on this matter in Estonia, the article is mainly based on German law as an important model the Estonian law is built upon.