CHANCELLOR OF JUSTICE AS THE PREVENTIVE MECHANISM
Thus, clients of the opposite sex wishing to live in the same room may submit a relevant written request
to the service provider and the latter, taking into account the clients’ will, should grant that request if
possibility for this exists.
If the service provider cannot grant the wish due to a lack of spare rooms, the clients who wish to live in
the same room may submit a written request to the Social Insurance Board for changing the service provider under § 1128(1) of the Social Welfare Act. It should also be emphasised that both the service provider
and the Social Insurance Board have the duty to provide comprehensive counselling to the clients with
regard to the above issues.
11.
The use of the client’s personal mobile phone and computer in a social welfare institution
During the training, several questions concerning the legality of restricting the use of a client’s personal
mobile phone and a computer by a social welfare institution were raised. Specifically, workers of the institutions asked whether the institution may restrict the time of the use of a mobile phone by a client in order
to avoid the client unnecessarily disturbing their friends and relatives or other persons or institutions by
calling. For example, there had been a case where a credit institution contacted a care home with a request
that a client’s use of the mobile phone should be restricted to avoid them excessively disturbing the bank
staff by calling.
First, it should be noted that under § 32(1) of the Constitution the property of every person is inviolable
and equally protected. Under paragraph 2 of the same section, everyone has the right to freely possess, use,
and dispose of his or her property, while restrictions may only be provided by law. This means that, as a
rule, the restrictions may not be established by a legal act lower than a law, such as a regulation of the local
government or the Government of the Republic,20 let alone by internal documents, such as internal rules
of a social welfare institution. Also, under Article 1 of Protocol No 1 to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, every natural or legal person is entitled to the
peaceful enjoyment of his possessions. This right may only be restricted in the public interest and subject
to the conditions provided for by law.
A legal basis for restricting the right of ownership in social welfare institutions is § 20(1) of the Social
Welfare Act, under which a person receiving social services in a social welfare institution may not possess
the following substances and objects:
1) weapons within the meaning of the Weapons Act;
2) explosives, pyrotechnic substances and pyrotechnic articles within the meaning of the Explosive
Substances Act;
3) substances used for causing narcotic, toxic or alcohol intoxication, and;
4) other substances or objects which may constitute a danger to the person receiving the service and
the life and health of other people.
Normally, a mobile phone and a computer do not constitute a danger to the life and health of the client
and other persons. Thus, as a rule, a care home may not impose restrictions on the use of these items even
in isolated cases, let alone establishing general restrictions on their use in internal documents of the institution. The same applies to all the other items not mentioned in § 20(1) of the Social Welfare Act.
On this basis, it may be concluded that each service recipient, regardless of whether they are receiving the
service voluntarily or on the basis of a court ruling, has the right to freely possess, use, and dispose of their
mobile phone or computer (including for calling) and a social welfare institution may not restrict it against
the person’s free will.
As concerns clients placed in a social welfare institution by a court ruling, it should be noted that it is
extremely important to be aware that restriction of one fundamental right cannot automatically lead to the
restriction of another fundamental right. If the court has decided to deprive a person of liberty and place
them in a closed institution, this does not mean that the person is automatically deprived of all the other
20
20 P. Roosma. Kommentaarid §-le 32. – Kirjastus Juura. Eesti Vabariigi Põhiseadus, Kommenteeritud väljaanne. [Comments on
§ 32. Constitution of the Republic of Estonia. Commented Edition] Tallinn 2008, § 32 comment 5.2.
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