FIRST SECTION

Application no. 17429/10 Romeo KALDA against Estonia lodged on 16 March 2010

STATEMENT OF FACTS

The applicant, Mr Romeo Kalda , is an Estonian national, who was born in 1974. He is serving a life sentence in prison . He is represented before the Court by Mr J. Valdma , a lawyer practising in Tallinn.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 October 2007 Tartu Prison refused the applicant access to the Internet sites www.coe.ee ( the Council of Europe Information Office in Tallinn), www.oiguskantsler.ee (the Chancellor of Justice ( Õiguskantsler )) and www.riigikogu.ee (the Riigikogu (the Estonian Parliament)). According to the applicant he was involved in a number of legal disputes with the prison administration and he needed access to these Internet sites in order to defend his rights in courts.

On 23 November 2007 the applicant ’ s complaint was dismissed by the Ministry of Justice.

By a judgment of 17 July 2008 the Tartu Administrative Court upheld the applicant ’ s complaint in so far as the Internet site www.coe.ee was concerned and ordered Tartu Prison to grant him access to that site under the supervision of the prison in a computer adapted for that purpose. The Administrative Court noted that Tartu Prison had afforded the detainees access to electronic Riigi Teataja (the State Gazette), register of judicial decisions and the Internet sites of the European Court of Human Rights and the Supreme Court. The Court further referred to the Supreme Court ’ s judgment of 31 May 2007 (case no. 3-3-1-20-07) and to section 31-1 of the Imprisonment Act ( Vangistusseadus ) wh ich had entered into force on 1 June 2008. It noted that the Internet site of the European Court of Human Rights to which the detainees had been granted access contained information only in English and French whereas the translations into Estonian of the rulings of the European Court of Human Rights were available on the Internet site of the Council of Europe Information Office in Tallinn. The court considered that the burden of having the rulings of the European Court of Human Rights translated into Estonian could not be placed on the applicant and concluded that he also had to be granted access to the Internet site www.coe.ee. It considered that this Internet site was similar to the register of judicial decisions referred to in section 31-1 of the Imprisonment Act. In respect of the Internet sites www.oiguskantsler.ee and www.riigikogu.ee the court found that access to these sites was not foreseen by section 31-1 of the Imprisonment Act and that the applicant could request information directly from the institutions concerned or from Tartu Prison.

Both parties appealed. On 31 October 2008 the Tartu Court of Appeal dismissed the appeals and upheld the first-instance court ’ s judgment.

Both parties challenged the appeal court ’ s judgment before the Supreme Court. The Administrative Law Chamber of the Supreme Court referred the case to the Supreme Court ’ s plenary session because of an issue of constitutionality. By a judgment of 7 December 2009 the Supreme Court dismissed the applicant ’ s appeal and upheld the appeal by Tartu Prison. It quashed the lower courts ’ judgments in so far as the applicant had been granted access to the Internet site www.coe.ee.

The Supreme Court found that the Internet sites in question did not fall under the exceptions provided for in section 31-1 of the Imprisonment Act. Thus, the Supreme Court had to determine whether that provision was in conformity with the Constitution. The Supreme Court found that section 31 ‑ 1 of the Imprisonment Act interfered with the right to freely obtain information disseminated for public use enshrined in Article 44 § 1 of the Constitution . It noted that the aims of imprisonment included directing detainees towards law-abiding behaviour and the need to protect legal order. As it could not be technically excluded that the detainees misused the right to use the Internet, the use of the Internet was prohibited to them by section 31-1 of the Imprisonment Act . The exception made in respect of official legislation databases and register of judicial decisions was necessary in order to ensure to the detainees an effective possibility for protecting their rights. It had to be taken into account that the official texts of the legal acts were only accessible to the detainees over the Internet.

The Supreme Court observed that the prohibition of the use of the Internet was primarily necessary in order to restrict the detainees ’ such extra-prison communication that did not promote the purposes of the detention, including obtaining such information that could jeopardise the prison ’ s security or run counter to directing the detainees towards law-abiding behaviour. Opening an access to any additional Internet site for the detainees increased the security risk of them obtaining information contrary to the aims of imprisonment. Moreover, this could open an opportunity for the detainees to use the Internet for other purposes than freely obtain ing information disseminated for public use . Thus, the Supreme Court concluded that the prohibition of the detainees ’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee was justified by the need to achieve the aims of the imprisonment and in particular to secure public safety.

In respect of the proportionality of the restriction the Supreme Court considered that by not enabling the detainees to have access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee it was excluded that they could misuse the Internet through these sites and thereby the public safety was protected. At the same time, granting access to these Internet sites could create an additional possibility for prohibited communication, bring along a further need of control and additional cost. Thus, there were no alternative means besides the prohibition imposed by section 31-1 of the Imprisonment Act that would be equally effective for achieving the legitimate aim in question. Lastly, the Supreme Court noted that the detainees could contact the Riigikogu and the Chancellor of Justice by mail or make a request for information ( teabe nõue ) to them. Therefore, their access to the public information contained on the pertinent Internet sites was not excluded. The detainees ’ access to the Internet site of the European Court of Human Rights was guaranteed pursuant to section 31-1 of the Imprisonment Act and the Council of Europe ’ s conventions and treaties ratified by Estonia were accessible on the Internet site www.riigiteataja.ee. The Supreme Court noted that it did not doubt that the printed works of the Council of Europe were accessible through the prison ’ s library, nor was it excluded that the detainees contacted the Council of Europe by mail. The Supreme Court concluded that the restriction according to which the detainees had no access to the Internet sites www.oiguskantsler.ee , www.riigikogu.ee and www.coe.ee was of low intensity; it gave more weight to the aim sought by the restriction. It considered that with the extensive use of the Internet it became more likely that the prison lost control over the detainees ’ activities as it could not be completely excluded that through the Internet sites in question the detainees could use the Internet for other purposes. Accordingly, the impugned restriction was in conformity with the Constitution.

Four judges out of eighteen delivered a dissenting opinion according to which the applicant should have been granted access to all three Internet sites in question. They considered that the use of the Internet sites in question did not, as a rule, pose a threat to the public safety and it was in conformity with the aims of imprisonment. It was unclear which additional costs the State would have to bear since according to the law in force there were in prisons computers specially adapted for the detainees ’ access to official legislation databases and register of judicial decisions and the prison service exercised supervision over the use of these resources. The information available on the Internet sites in question was useful for the exercise of the right of recourse to the courts. While it was true that the detainees could also make use of the request for information ( teabe nõue ), this was a more time-consuming avenue and, in particular in the case of the Internet site of the Chancellor of Justice, required the knowledge on which information was available on the Internet site. No request for information under the Public Information Act ( Avaliku teabe seadus ) could be made to the Council of Europe Information Office in Tallinn . The rulings of the European Court of Human Rights available in the HUDOC database – which was accessible to the detainees – were not in Estonian unlike the unofficial translations published on the Internet site www.coe.ee. It could not be presumed that the detainees had sufficient command of English or French. The printed works of the Council of Europe that were available in the prison ’ s library did not include all the information that was published at the Internet site of the Council of Europe Information Office in Tallinn . The minority concluded that the restriction in question was unconstitutional.

B. Relevant domestic law and practice

Article 44 § 1 of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides that everyone has the right to freely obtain information disseminated for public use.

Section 31-1 of the Imprisonment Act ( Vangistusseadus ) which entered into force on 1 June 2008 provided that prisoners were prohibited to use the Internet, except in the computers specially adapted for such purpose by the prison which enabled access under the supervision of the prison to official legislation databases and register of judicial decisions.

In its judgment of 31 May 2007 (case no. 3-3-1-20-07) , the Administrative Law Chamber of the Supreme Court dealt with a complaint by the applicant in the present case. He complained about Pärnu Prison ’ s refusal to grant him Internet access to the following databases: electronic Riigi Teataja (the State Gazette), rulings of the European Court of Human Rights and rulings of the administrative courts. In respect of Estonian legislation and the Supreme Court ’ s rulings the Supreme Court noted that they were available in the paper version of Riigi Teataja ; it considered access to that publication sufficient and the prison ’ s refusal to grant the applicant access to the electronic Riigi Teataja lawful. However, the Supreme Court noted that from 1 January 2007 the primary official publication of Riigi Teataja was its electronic version whereas only five control copies were printed on paper. Nevertheless, the prison had to ensure that the detainees had a reasonable possibility for searching and familiarising themselves with legal acts.

Furthermore, the Supreme Court considered that the refusal of the prison administration to grant the detainees access to the rulings of the administrative courts and the European Court of Human Rights interfered with their right to freely obtain information disseminated for public use enshrined in Article 44 § 1 of the Constitution. As the legislator had not enacted any restrictions in this regard in respect of prisoners, their right to obtain information had to be ensured equally with the persons at liberty. Accordingly, the refusal of P ärnu Prison to grant the applicant access to the rulings of the Estonian administrative courts and the European Court of Human Rights had been unlawful.

COMPLAINT

The applicant complains under Article 10 of the Convention that by refusing him access to the Internet sites of the Council of Europe Information Office in Tallinn , the Chancellor of Justice and the Riigikogu , his right to receive information without interference by public authority and regardless of frontiers was violated.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, in particular his right to receive information, contrary to Article 10 of the Convention?

In particular, what was the substantial ground for distinguishing by the domestic authorities the Internet sites to which the applicant was granted access from those sites to which he unsuccessfully sought access? Was such distinction arbitrary? Was it established in the domestic proceedings that access of the detainees to the Internet sites of the Council of Europe Information Office in Tallinn , the Chancellor of Justice and the Riigikogu posed a threat to the public safety or prison security whereas their access to the official legislation databases and register of judicial decisions did not pose such a threat? Was it established in the domestic proceedings that granting the detainees access to the Internet sites in question involved additional cost to the authorities?