Court victory! The lawyers of the Human Rights Centre, in cooperation with the law firm Triniti, challenged a provision of the internal regulations of an Estonian detention center that violates the fundamental rights of the people detained there by imposing an absolute ban on the use of communication devices. On March 20th, the administrative court ruled that the internal regulations of the detention center are indeed contrary to the Estonian Constitution and referred the case to the Supreme Court for consideration.

The people detained in the center are not criminals

Everyone has the right to seek international protection, which protects people whose lives are in danger in their home country. The foreigners who are in the detention center by court order are awaiting a decision on their asylum application, do not have a legal basis for staying in Estonia, or are being sent back to their country of origin. People can be detained in such a situation for various reasons, ranging from the need to identify the person and determine their legal status to protecting public order. People detained in the center are not criminals.

Why is restricting the use of the internet and phone in the detention center problematic?

According to the previous internal regulations, the people detained in the center were only allowed to use the internet to visit 14 Estonian- and English-language legal websites. They were given a €5 calling card each month. Why are these restrictions problematic from a human rights perspective?

• The restrictions on internet access violate the detainees’ freedom of expression and their right to access public information, including information necessary to live in Estonia.
• In addition, due to the restrictions on internet access, detainees cannot keep up with their legal proceedings, nor can they provide the Police and Border Guard Board or the court with the necessary information to decide whether the person is actually fleeing a dangerous situation and is entitled to protection or not.
• The limited communication options, including with loved ones who remain in their home country or are in Estonia, cause emotional distress for the detainees.

The restrictions described above did not meet the so-called three-stage test required by the Constitution:

1. There must be a permissible norm in the law for any such infringement. Although the law requires that each infringement be considered necessary, an absolute ban had been imposed in this case.
2. The infringement must serve a legitimate purpose. The law allows the use of telephone calls and other communication devices to be restricted if allowing them could endanger the internal order of the detention center or impede deportation. Such an assessment was not made in this case.
3. In a democratic society, the infringement must be suitable, necessary, and moderate, meaning the infringement must be proportional.

Rule of law issue

“Based on the presumption of innocence under the rule of law, individuals cannot be treated as criminals if there is no corresponding court decision or if at least a reasonable risk to the detention center’s internal order or prevention of deportation has not been identified,” says Mari-Liis Vähi, a lawyer at the Human Rights Centre. “In the case of the person who contacted us, no such risk has been identified, and it does not appear that such an accusation is planned. At the same time, his fundamental right to protection of family life and the right to receive information disseminated to the public are being violated.”

Legally, it is important that a person’s fundamental rights can only be restricted by law. However, the restrictions of the detention center are set out in the internal rules confirmed by the minister’s regulation. Since the regulation is a legal act that is lower than the law, it cannot take away legal rights. The administrative court confirmed that the detention center’s internal rules are unconstitutional for this reason.

The illegality of the restrictions on communication devices in the detention center has also been repeatedly pointed out by the Chancellor of Justice. Nevertheless, the communication options for individuals in the detention center have not been improved for the past six years.

To be able to quickly and flexibly respond to societal pain points, we urge all good people to donate (link) to the Centre’s strategic litigation fund or to give momentum to the protection of important cases for all of us in court.