KALDA v. ESTONIA – SEPARATE OPINION
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10. It is also a cause of concern to me that the judgment includes no
information on comparative law and practice. To my knowledge, in many
European as well as other countries prisoners serving sentences in closed
institutions are, for security reasons and due to the risk of misuse, not
granted access to the Internet, and if they are granted such access, it is done
to a limited degree and under adequate control and restrictions. Thus, the
information provided in the judgment does not establish a sufficient basis
for stating that there is a European consensus according to which prisoners
serving sentences in closed institutions are granted access to the Internet, be
this in general or in some restricted form.
11. In my view, the risk of misuse and the inherent security risks are so
significant that the Court should be careful not to impose an obligation on
States to grant prisoners’ access to the Internet, as granting access will
inevitably necessitate adoption of control measures and have practical and
financial implications for the Member States. In theory, it will always be
possible to implement the necessary monitoring, but the burden and the
costs for the State may be excessive.
12. In the assessment of proportionality it is, in my view, important that
the information on the three webpages to which the applicant sought to have
access was available to the applicant by other means (see paragraph 17 of
the judgment), even though access to the information would most probably
be more difficult without access to the webpages in question.
13. The judgment concerns the applicant’s request to have access to
three specific webpages, but the reasoning in the judgment will be equally
applicable if – or when – the applicant, encouraged by the judgment,
decides in the future to request access to other webpages or if other
prisoners, inspired by the judgment, decide to request access to other
webpages and can demonstrate the relevance and necessity of access to the
information provided on the webpages. Thus, in practical terms, the
judgment is close to recognising a right of prisoners to access to relevant
webpages on the Internet. This significant step is taken without sufficient
support in international instruments concerning prisoners and without an
assessment of European law and practice.
14. Having regard to the inherent risks concerning misuse and security,
the technical and financial burdens imposed on Member States if prisoners
are to be granted access to the Internet, the lack of information about
European law and practice as well as the lack of support in international
instruments on prisoners’ rights, the State should, in my view, be granted a
wide margin of appreciation. Therefore, even though I fully subscribe to the
general importance of the Internet for the individual in contemporary
society, there is, in my view, insufficient basis for finding a violation of
Article 10 of the Convention.
15. Having regard to the novelty of the legal question raised by the
application, the general importance of prisoners’ access to the Internet as
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