CASE OF JANKOVSKIS v. LITHUANIA
Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible (Article 35-1 - Six month period);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1961. According to the latest information in the Court’s possession, he was serving a sentence in the Pravieniškės Correctional Home. 6. On 30 May 2006 the applicant wrote to the Ministry of Education and Science (Švietimo ir mokslo ministerija, hereinafter “the Ministry”), requesting information about the possibility of enrolling at university. He mentioned having graduated in 1996 from the Medical Faculty of Vilnius University. The applicant stated that he wished to pursue studies via distance learning to acquire a second university degree (studijuoti neakivaizdiniu būdu aukštojoje mokykloje), this time in “law with a specialisation in human rights” (teisės studijos su žmogaus teisių pakraipa). The applicant mentioned that he was a prisoner and thus could not physically attend the place of study. 7. In a letter of 12 June 2006 sent to the applicant at the Pravieniškės Correctional Home, the Ministry of Education and Science wrote that information about the study programmes could be found on the website <www.aikos.smm.lt>. This website states that it belongs to the Ministry of Education and Science, and is administered by a public entity, the Centre for Information Technologies in Education (Švietimo informacinių technologijų centras), which is a public institution founded by the Ministry of Education and Science. The website contains information about learning and study possibilities in Lithuania. The website states the following about the aims of the “AIKOS” system: “AIKOS is an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania. AIKOS provides the possibility of searching information about professions, qualifications, studies and study programmes, educational and science institutions and rules of admission... AIKOS allows users to submit a question to a consultant and to receive a reply ... The information provided in the central part of the AIKOS website under the sections ‘I wish to learn’, ‘I wish to study’, ‘I wish to improve my qualifications’ reflects only the current and most pertinent information relevant to the current academic year and is aimed at those who wish to enter university, vocational school, or a secondary school, or who wish to improve their qualifications. The site also contains historical data regarding education ... AIKOS provides information to three groups of users: adults, children (up to fourteen years of age) and English speakers. The users may use more functions after they have registered on this site. The AIKOS website is refreshed daily, to reflect information about education and science institutions, study and learning programmes and the qualifications a person receives upon graduating from those programmes, ... programmes for improving qualifications... It also provides information from the Lithuanian Labour Exchange about job vacancies and unemployment. The latter information on the AIKOS website is renewed monthly...” 8. On 28 June 2006 the applicant wrote to the Pravieniškės Correctional Home authorities, noting the reply by the Ministry and asking to be granted Internet access to a website “where there was information from the Ministry about studies, as well as to [the applicant’s] email accounts hosted on the Internet sites <www.one.lt> and <www.yahoo.com>”. 9. On 1 July 2006 the Pravieniškės Correctional Home governor replied that the prison authorities did not consider the Ministry’s reply to be comprehensive. In particular, the Ministry had not taken into account the applicant’s particular situation – namely that he was in prison. The prison considered that the Ministry should have provided a comprehensive reply in writing. According to the prison governor, “given that the Ministry’s reply did not satisfy [the applicant], the latter should write to the Ministry again, so that he is provided with a comprehensive reply”. 10. The prison governor also informed the applicant that the request to have Internet access could not be granted because at that time none of the legislation allowed the prisoners to use the Internet or to have a mailbox. For that reason, the Pravieniškės Correctional Home authorities were unable to grant the applicant’s request. 11. The applicant then lodged a complaint with the Department of Prisons (Kalėjimų departamentas), arguing that none of the laws prohibited him from obtaining information from a State institution electronically. The applicant referred to the Ministry’s reply and asked to be granted Internet access. 12. On 26 July 2006 the Department of Prisons responded that the legal instruments regulating the execution of sentences did not permit prisoners to use the Internet. It was suggested that the applicant again ask the Ministry to provide the information he sought. 13. On 1 August 2006 the applicant started court proceedings, referring to his correspondence with the Ministry and challenging the Pravieniškės Correctional Home authorities’ decision not to grant him access to Internet. 14. In their written response to the court, the Pravieniškės Correctional Home authorities noted that, although prisoners had a right to address requests and complaints to the State authorities under Article 100 of the Code of the Execution of Sentences (see paragraph 29 below), this meant correspondence by regular post and not via electronic communication. Furthermore, the use of mobile phones in prisons was prohibited so that prisoners could not continue their criminal activity whilst serving a sentence. According to the Pravieniškės Correctional Home authorities, a number of fraudsters had already cheated people of large sums of money with the help of mobile phones. If the prisoners had the right to use Internet, they could pursue criminal activities and could also coordinate the activities of criminal organisations. Lastly, given that postal correspondence between prisoners was not permitted, providing prisoners with access to the Internet would make that prohibition pointless. The same was true regarding the prohibition in the 1st Annex of the Code of the Execution of Sentences of the prisoners’ possession of topographic maps (see paragraph 30 below). 15. The Prisons Department also asked the court to dismiss the applicant’s complaint, arguing that although Article 96 of the Code of the Execution of Sentences permitted prisoners to use computers (see paragraph 29 below), this did not encompass the right to Internet use. There was no right under Lithuanian law for a prisoner to be provided with Internet access. 16. On 2 February 2007 the Kaunas Regional Administrative Court dismissed the applicant’s complaint. Having reviewed the legal provisions regulating prisoners’ conditions of detention, the court pointed out that the prisoners could communicate with State institutions by postal correspondence and that their letters had to be sent via the prison authorities (see paragraph 33 below). Giving Internet access to prisoners would not be compatible with those legal norms. However, as the Internet was not an object, it was not possible to list Internet among the “objects” which the prisoners were not allowed to have in prison. At the same time, from the existing ban on telephone and radio communication devices in prison it was obvious that this ban included the Internet. Such prohibition was aimed at preventing crimes being committed in prison. The court also observed that the requirements were set by order of the prison authorities and were therefore mandatory for the applicant, as he was under an obligation to obey prison orders. 17. The applicant appealed, disputing the lower court’s interpretation of domestic law. He also argued that the lower court had ignored the fact that the core of his complaint was the restriction of his right to education and the right to obtain information. The applicant relied on Article 25 of the Constitution (see paragraph 28 below), and Articles 10 and 14 of the Convention. 18. The Pravieniškės Correctional Home authorities replied, indicating that there was “a secondary school (vidurinė mokykla) in the prison where students could access all the literature necessary for their studies. The secondary school graduation exams showed good results”. Furthermore, the prisoners could pursue computer literacy studies organised by the Elektrėnai vocational school (Elektrėnų profesinio rengimo centras), and that institution had not asked for Internet access. The prison thus considered that Internet access, or the lack thereof, had no impact on the quality of studies. 19. On 11 December 2007 the Supreme Administrative Court dismissed the applicant’s complaint. The court noted that, for its users, the Internet provided very wide opportunities to use email, to obtain information, to download files, and to sell or buy things. The Internet could be used for more than merely educational purposes. However, the right to use the Internet was not absolute and this right could be restricted to certain social groups. This stemmed from Article 10 of the Code of the Execution of Sentences (see paragraph 29 below). There was no legal provision in Lithuania permitting prisoners to use the Internet. Even so, the prisoners’ right to have computers could not be interpreted so widely as to encompass the right to have Internet access. The Supreme Administrative Court lastly noted that if prisoners had access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners’ activities. 20. On 30 June 2006 the Elektrėnai Vocational Educational Centre (Elektrėnų profesinio mokymo centras) awarded the applicant a diploma in computer skills. 21. According to the Government, in 2007-2008 the applicant had attended English language courses and computer literacy courses organised by a secondary school in Kaunas region. 22. In 2006 the applicant started court proceedings, arguing that in July 2006 he had been held in the Lukiškės Prison for seven days in degrading conditions. Among other things, he also argued that the Lukiškės Prison authorities had seized the personal computer which the applicant had brought with him into prison. 23. On 15 January 2007 the Vilnius Regional Administrative Court dismissed the claim by the applicant as unfounded. 24. In a final ruling of 12 October 2007, the Supreme Administrative Court concluded that the computer had been unlawfully seized by the Lukiškės Prison authorities. However, the court found that the conditions of the applicant’s detention had been satisfactory overall, except for a few minor details, and that the gravity of those violations was not such as would amount to inhuman or degrading treatment. 25. In 2006 the Pravieniškės Correctional Home authorities granted the applicant’s request for an extended visit by his parents. However, the applicant later committed a disciplinary offence, and for that reason the extended visit was denied. 26. On 4 May 2007 the Kaunas Regional Administrative Court upheld the refusal of the extended visit as legitimate. 27. By a final ruling of 6 February 2008 the Supreme Administrative Court upheld the lower court’s decision.