Estonian court rejects full mobile phone ban for detention center residents

Smartphone. Photo is illustrative.
Smartphone. Photo is illustrative. Source: ERR

A blanket ban removing mobile phones and the internet from foreigners being held in detention centers cannot be enforced and must be abolished, Estonia's Supreme Court has ruled. The police disagree.

The court last month said that a detention center is not a prison and its residents are not criminals. People held in these centers are awaiting deportation or responses to international protection claims.

Residents should be able to communicate with the outside world, just as prison inmates can, the court said on June 20.

The Police and Border Guard Board's (PPA) Aivar Krupp said mobile phones were on the list of banned items until the court's ruling.

Foreigners can access the internet but the center's computer has restricted access and only limited websites can be visited, such as the Chancellor of Justice's or Supreme Court, he added.

"An alien who is placed in a detention center and would, for example, be able to communicate freely with his or her loved ones or community, there may be quite a number of advisers there and the advice given may be inconsistent with either the enforcement of the deportation or our procedures," said Krupp.

The PPA is concerned that a resident, if allowed to communicate with the outside world, could be given instructions about how to attack Estonia or plan an escape.

Ele Russak, an advisor at the Ministry of Interior's Department of Citizenship and Migration Policy, cited an example from Norway, where foreigners contacted gang members who were waiting outside.

"Detainees contributed to organized crime, notably human trafficking, and today Norway has banned personal mobile phones in detention facilities," Russak said.

The PPA says foreigners can share information about places to cross Estonia's border illegally and about how to answer officials' questions.

The court based its judgment on the fact that people, who have not done anything wrong, cannot be suspected of wrongdoing.

It declared the mobile phone ban unconstitutional and said the blanket rule must be abolished. However, the court said blocking access may be allowed in specific situations.

The ministry is now planning its next steps.  "And within this framework, we can thoroughly analyze and assess which restrictions would be reasonable and proportionate," said Russak.

But officials have different interpretations of the ruling in relation to internet usage.

Krupp said the ruling only applies to phones.

"So the free use of the internet did not come up in this decision and in this respect, the practice will not change, perhaps it will remain the same," said Krupp.

But Mari-Liis Vähi, a lawyer at the Estonian Human Rights Center, disagreed.

"In this regard, the Supreme Court ruled in a very significant decision that access to the internet is a right that must also be guaranteed in a detention center," Vähi said. 

"Unless there is reason to suspect that a person is in some way a threat to our public order or to a detention center or procedure, there should be no restriction of a person's fundamental rights."

The court ruled that the detention center's ban on mobile phones is unconstitutional but the center's rules do not specifically mention the internet.

"A blanket ban on the free use of the internet with a personal device may infringe many fundamental rights, since without the internet it is difficult to exercise many fundamental rights today," the court added, noting that the internet is an important communication channel.

"An alien is also generally entitled to use channels or means of communication in the public domain which are not specifically mentioned in the law, but this right may be limited by a discretionary decision of the director of the detention center or of an official designated by him," it noted.

Rules may depend on length of stay

The PPA plan to stick to the internet ban for now, or at least until new regulations are developed.

The head of the detention center will initially respond to requests to use the phone individually.

"The decision to ban must be justified to the inmate, and the circumstances of the ban are taken into account for each inmate separately, i.e. how the inmate has behaved or whether he has violations of the house rules," explained Krupp.

Krupp said the first requests to use mobile phones have already been received.

"In all likelihood, there will be a specific room in the detention center where the detainee can enter and make their calls from. In other words, we will rule out from the outset a situation where a mobile phone is given to a prisoner in a public room who does not have the right to use it," said Krupp.

The decision will also be related to ongoing procedures and how long the person has been at the center.

"What is clear is that if a detainee is placed in a detention center today and tomorrow he or she makes a request to use a mobile phone, it is a big judgment call as to whether it is justified," said Krupp, who said it could harm proceedings.

"However, if the detainee has spent three to four months in the center, the first operations have been carried out and the investigator has assessed that the use of his mobile phone will not harm the proceedings, then it is possible to issue this authorization and the detainee's right will be guaranteed," he added.

But lawyer Mari-Liis Vähi said time spent in the detention center or the stage of the procedure cannot be a reason to ban mobile phones and the internet.

"There must be some reason why the police think that the person could obstruct the proceedings or be a threat. In fact, we cannot just assume a threat, just as we cannot assume a threat from a person on the street," Vähi said.

Administrative decisions can be contested, and it is likely that only case law will shape the circumstances under which mobile phones and the Internet may be used.

Russak believes the court's decision will increase the PPA's administrative burden.

Krupp said it increases risks.

"But we don't know if this risk will materialize," Krupp added. "If the rights are abused, we will draw our own conclusions and to that extent, we will be able to restrict the use of mobile phones."


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Editor: Merili Nael, Helen Wright

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