Victory from Estonian Supreme Court: Restricting Communication Opportunities for Asylum Seekers Contravenes the Estonian Constitution

Court victory! The lawyers of the Human Rights Centre, in cooperation with the law firm Triniti, challenged a provision of the Internal Rules 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 are indeed contrary to the Estonian Constitution and referred the case to the Supreme Court for consideration. On June 20, the Constitutional Review Chamber of the Supreme Court ruled that Section 25 (11) of the detention center’s Internal Rules is unconstitutional and therefore invalid. Inter alia, the Supreme Court ruled that access to the Internet is such a human right that should be guaranteed also to the asylum seekers.

Individuals detained in detention centers are not criminals. They are foreign nationals without a legal basis to remain in Estonia, awaiting a decision on their asylum applications or being repatriated to their home countries. Detention serves various purposes, including identification, verification of legal grounds for stay, and maintenance of public order. It is important to clarify that individuals in detention centers should not be treated as criminals.

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

The restrictions on internet and phone usage in detention centers raise significant human rights concerns. Currently, detainees can only access 14 legal webpages in Estonian and English. They are provided with a monthly calling card worth EUR 5 for phone calls. This means that they have approximately 20 minutes per month (depending on the country, it is 11 minutes to call Kyrgyzstan) to call their family. These restrictions violate various human rights, e.g. to receive and disseminate information, and the right to respect for private and family life.

  • Restrictions on internet access infringe upon detainees’ freedom of expression and their right to access public information necessary for their integration into Estonian society.
  • The restrictions hinder detainees from staying informed and contributing to the legal proceedings related to their international protection case, preventing them from providing essential information to the Police and Border Guard Board or the courts. This information might be crucial for determining eligibility for protection and the validity of asylum claims.
  • Restricted communication opportunities with loved ones, both in their home country and in Estonia, cause emotional distress to detainees.

Karmen Turk, a lawyer at Triniti Law Firm, highlights the legal shortcomings of these restrictions: “The described restrictions fail to meet the three-step test derived from the Constitution. Firstly, every restriction must have a legal basis. Although the law requires assessing the necessity for each interference, the Internal Rules impose an absolute prohibition. Secondly, the interference must serve a legitimate purpose. According to the law, phone calls and other means of communication can be restricted if their allowance could jeopardize the detention center’s internal order or impede deportation. Such an assessment was not made in this case. Thirdly, the interference must be suitable, necessary, and proportionate in a democratic society.”

Concerns Regarding Rule of Law

Mari-Liis Vähi, a lawyer at the Estonian Human Rights Centre, emphasizes the importance of the presumption of innocence as integral part of the rule of law: “Individuals should not be treated as criminals unless there is a corresponding decision and justified threat to the detention center’s internal order or the prevention of deportation. In the current case, no such threat has been identified, and there seems to be no intention to make such an accusation. However, their fundamental rights to the protection of family life and access to publicly available information are being violated.”

Legally, an individual’s fundamental rights can only be restricted by legal act. However, the restrictions in the detention center outlined in the Internal Rules are based on a ministerial regulation. As the ministerial regulation holds a lower legal power compared to the legal act, thus it cannot be used to deprive individuals of their legal rights. The Supreme Court has confirmed that already for this reason these restrictions to the fundamental rights are unconstitutionality.

The Chancellor of Justice of the Republic of Estonia has also repeatedly highlighted the unlawfulness of the communication restrictions in the detention center. Despite this, there has been no improvement in communication opportunities for detainees over the past six years.

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