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FIFTH
SECTION
CASE OF MIKOLENKO v. ESTONIA
(Application
no. 10664/05)
JUDGMENT
STRASBOURG
8
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mikolenko v.
Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10664/05) against the Republic
of Estonia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Nikolai Mikolenko (“the
applicant”), on 3 March 2005.
- The
applicant was represented by Mr M. Ioffe, a lawyer practising in
Riga. The Estonian Government (“the Government”) were
represented by their Agents, Ms M. Hion and subsequently Ms M.
Kuurberg, of the Ministry of Foreign Affairs. The Russian Government
exercised their right of third-party intervention in accordance with
Article 36 § 1 of the Convention and were initially represented
by Ms V. Milinchuk, former Representative of the Russian Federation
at the European Court of Human Rights, and subsequently by their
Representative, Mr G.
Matyushkin.
- The
applicant alleged, in particular, that he was deprived of his liberty
in violation of Article 5 § 1 of the
Convention and that the length of his detention was excessive.
- On
8 January 2008 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the unlawfulness
and length of the applicant's detention to the Government. It also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 in Ukraine and lives in Tallinn.
A. Background of the case
- The
applicant is a former Soviet and Russian Army officer who served from
1983 in the territory of Estonia. After the restoration of Estonian
independence, he was refused an extension of his residence permit in
that country. His complaints were dismissed by the domestic courts;
the final judgment was delivered by the Supreme Court (Riigikohus)
on 17 April 2003. Subsequently, he lodged an application with
the Court, alleging, among other complaints, that his right to
respect for his private and family life, guaranteed under Article 8
of the Convention, had been violated by the Estonian authorities. On
5 January 2006 this application was declared inadmissible (see
Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006).
- The
circumstances of the applicant's stay in Estonia and the Estonian
authorities' refusal to extend his residence permit, as well as a
summary of the relevant domestic and international legal provisions
may be found in the decision mentioned above. In brief, although the
Estonian authorities had finally refused to extend the applicant's
residence permit, he – backed by the Russian Government –
was of the opinion that he was still entitled to stay in Estonia
under the terms of the agreement concerning social guarantees for
retired military personnel of the armed forces of the Russian
Federation in Estonia, concluded on 26 July 1994. The agreement
provided that retired military personnel, that is persons discharged
from the army service and receiving pension could apply for a
residence permit in Estonia. According to the Russian Government the
applicant was dismissed from the military service on 20 July 1994 for
health reasons and excluded from the lists of the military unit on 18
October 1994.
- The
Estonian authorities, to the contrary, considered that he did not
fall under the agreement concerning social guarantees but rather
under the treaty on the withdrawal of the Russian troops from the
Estonian territory, also concluded on 26 July 1994, as he had been in
the active military service at the time of the conclusion of the
treaty. He had only been assigned to the reserve forces on 4 August
1994 and discharged from the military unit as of 18 October 1994.
Accordingly, he had been obliged to leave Estonia under the treaty.
B. The applicant's detention
- On
21 July 2003 the Citizenship and Migration Board (Kodakondsus- ja
Migratsiooniamet – hereinafter “the Board”)
ordered the applicant to leave the country on 17 September 2003 at
the latest. He was warned that in the event of failure to comply with
the order, he would be expelled immediately. The applicant challenged
the order before the Tallinn Administrative Court (halduskohus)
which, on 24 October 2003, dismissed the complaint. The applicant
appealed, but his appeal was dismissed by the Tallinn Court of Appeal
(ringkonnakohus). On 27 October 2004 the Supreme Court
refused leave to appeal.
- In
the meantime, on 29 October 2003, the applicant was arrested. His
immediate expulsion was not possible as he only presented his expired
passport on arrest, saying that he did not know where his valid
Russian passport was. On 31 October 2003 the Tallinn Administrative
Court decided, at the request of the police, that the applicant was
to be taken to a deportation centre for execution of the deportation
order. The Administrative Court authorised his detention for up to
two months, starting from 3 November 2003, giving him some time to
find his valid passport. The Government have submitted to the Court a
copy of the applicant's Russian passport valid until 24 January 2008.
The applicant did not present this document in the subsequent
proceedings.
- According
to the applicant he lodged an appeal against the Administrative
Court's decision of 31 October 2003 but since his detention was
subsequently, on 30 December 2003, extended by the Administrative
Court, the appeal became void of substance and had to be withdrawn.
According to the Government the applicant filed a notice of his
intention to appeal, as required by the applicable rules of
procedure, but he never actually lodged an appeal.
- From
4 November 2003 the applicant was detained in the deportation centre
in Harku, Harju County.
- The Government in their submissions have described the
deportation centre as an institution with a guarded perimeter kept
under visual and electronic supervision. It can accommodate 42
persons in rooms designed for four persons but as a rule no more than
two persons are placed in one room. The detainees can use eating and
rest areas equipped with television, radio, newspapers and
literature. There is table tennis equipment and various board games
and the detainees have free access to toilets and shower. Washing and
drying machines are available. There are four periods a day
(totalling almost ten hours) for outdoor walks. The detainees are
served three meals a day, including at least two hot meals; there is
a nurse present in the centre four hours a day and, if the need
arises, a general practitioner is available. A psychiatrist and a
psychologist visit the centre regularly. The detainees can buy
additional food and other items through the centre; they are also
allowed to receive parcels, send and receive letters and use the
telephone. Furthermore, they can meet consular officials of their
country of nationality, defence counsel and ministers of religion.
Subject to authorisation they can also be visited by other persons,
such as family members.
- At
the request of the Board, the applicant's detention was extended by
the Tallinn Administrative Court once every two months. It was open
to the applicant to appeal against the rulings of the Administrative
Court to the Tallinn Court of Appeal and, thereafter, to the Supreme
Court. He did so in some but not in all cases. On each occasion the
higher courts dismissed the appeals.
- The
courts found that the applicant's detention was lawful and justified
for the purpose of ensuring his expulsion. According to the courts'
rulings, the applicant had allegedly lost his valid Russian passport
and despite the requests by the Board to the Embassy of the Russian
Federation in Estonia (“the Embassy”) the latter had not
been able to issue a new travel document to the applicant because of
his refusal to fill in the required application forms. The Board was
ready to issue the applicant a temporary travel document but
according to the Russian Embassy it was not possible to add an entry
permit to such a document. The courts considered that detention was
an appropriate measure to motivate the applicant to co-operate with
the authorities and avoid a situation where an expulsion order could
not be executed merely because of the applicant's unwillingness. They
were of the opinion that the length of the applicant's detention in
the deportation centre depended on him alone. The courts also noted
that the applicant's deportation might be possible under the
Agreement between the European Community and the Russian Federation
on readmission once it entered into force.
- On 8 October 2007 the Tallinn Administrative Court
refused to further extend the applicant's detention. It found that
the length of his detention had become disproportionate and, in the
circumstances, unconstitutional. He was released from the deportation
centre the next day.
C. Measures taken by the authorities for the
applicant's removal
- The
Board and the Ministry of Foreign Affairs sought possibilities to
secure travel documents for the applicant so that he could be
removed; they were in contact with the Embassy to that end throughout
the applicant's detention. Furthermore, the Board on several
occasions requested the applicant to fill in forms required by the
Embassy to issue him a passport, but the applicant persistently
refused.
1. Measures taken by the Board
- The Board's attempts to achieve the applicant's
removal included the following steps.
- On
17 November 2003 the Board asked the Russian Embassy to issue the
applicant a return certificate. On 10 December 2003 the Embassy
replied that the applicant could return to Russia only on the basis
of a Russian foreign passport, which he could apply for in person or
through a representative.
- On
4 February and 7 April 2004 the Board informed the Embassy that the
applicant refused to fill in the required forms. They requested the
Embassy's assistance in issuing documents for the applicant and
expressed their readiness to provide the applicant with a temporary
travel document. The Embassy did not reply to the letters.
- On
14 June 2004 the Board again reminded the Embassy of the situation
and sought their agreement to affix an entry visa to a temporary
travel document the Board was ready to issue. On 18 June 2004 the
Embassy replied that this was not possible under Russian law.
- On
23 July 2004 the Board asked the Ministry of Foreign Affairs to
request the Embassy to provide the applicant with the requisite
papers.
- On
13 April 2006 the Board requested the Embassy's assistance in issuing
documents to the applicant. On 19 April 2006 the Embassy replied that
they could issue him a passport upon his request.
- On
11 June 2007 the Board submitted a request to the Embassy for the
applicant to be readmitted on the basis of the readmission agreement.
On 26 June 2007 the Embassy replied that the Russian party was of the
view that the applicant did not fall under the readmission agreement
as he had a legal basis for residing in Estonia (the Estonian-Russian
agreement of 1994).
- On
25 July 2007 the Board again asked the Ministry of Foreign Affairs to
request the Embassy to provide the applicant with the requisite
papers.
- On 13 September 2007 the Board asked the Ministry of
Foreign Affairs to contact the Immigration Service of the Russian
Federation to provide the applicant with papers under the readmission
agreement. On 30 October 2007 the Ministry of Foreign Affairs
replied that the Russian authorities did not wish to consider the
applicant's readmission under the readmission agreement and therefore
the readmission application concerning him had not been submitted to
the Immigration Service of the Russian Federation. A meeting with the
Russian party had been scheduled for November. On 19 November 2007
the Ministry of Foreign Affairs nevertheless transmitted the
readmission application to the Immigration Service of the Russian
Federation. On 1 December 2007 the Immigration Service replied that
the applicant was not subject to readmission under the readmission
agreement as he had a legal basis for residing in Estonia.
2. Measures taken by the Estonian Ministry of Foreign
Affairs
- In 2002 and 2003 the Embassy and the Ministry of
Foreign Affairs exchanged several notes and memoranda related to the
Estonian authorities' refusal to extend residence permits for some
retired Russian Federation servicemen. On 2 February 2004 the
Ministry of Foreign Affairs expressed readiness to hold bilateral
consultations to regulate the matter, as proposed by the Embassy.
- On
5 June 2006 the Ministry of Foreign Affairs sent a note to the
Embassy drawing the Russian authorities' attention to the fact that
on 5 January 2006 the European Court of Human Rights had
declared inadmissible the applicant's application related to the
Estonian authorities' refusal to extend his residence permit. The
Ministry of Foreign Affairs asked the Russian authorities to take the
necessary steps for the applicant's repatriation and requested their
assistance in providing him with papers. On 16 June 2006 the Embassy
expressed their readiness to issue the applicant identity documents,
provided that the applicant submitted an application in writing.
- On
26 July 2007 the Ministry of Foreign Affairs requested the Embassy to
issue the applicant with the documents necessary for his readmission
on the basis of the readmission agreement and transmitted a
readmission application in respect of him to the Embassy. On 21
August 2007 the Embassy replied that retired servicemen of the
Russian Federation, including the applicant, did not fall under the
readmission agreement as they had a legal basis for residing in
Estonia. They proposed regulating the matter by negotiation, through
diplomatic channels. On 7 September 2007 the Ministry of Foreign
Affairs agreed to hold negotiations.
- On
25 December 2007 the Embassy reiterated that the Russian authorities
considered that the applicant did not fall under the readmission
agreement.
- On
4 February 2008 the Ministry of Foreign Affairs confirmed its
position that the applicant was subject to the readmission agreement.
- On
19 February 2008 the Embassy emphasised that the main aim of the
readmission agreement, as stated in its preamble, was to strengthen
co-operation in order to combat illegal immigration. Any attempt to
apply it to other situations was contrary to the principle of
implementing international treaties in good faith. In particular, the
readmission agreement was not applicable to the retired servicemen to
whom the agreement of 1994 concerning social guarantees to retired
military personnel applied.
- In addition, the representatives of the Ministry of
Foreign Affairs repeatedly met Russian officials to discuss possible
solutions for the applicant's case. In connection with the
readmission agreement there have also been joint committee meetings
to discuss issues related to the agreement and to conclude its
implementing protocols. In March and September 2007 the Estonian
authorities submitted a draft implementing protocol of the
readmission agreement to the Russian party; a copy of the draft
protocol was resubmitted to the Russian authorities on 4 March 2008.
On 28 April 2008 the Embassy informed the Estonian authorities that
the Immigration Service was ready to hold consultations at expert
level concerning the implementing protocols in May 2008.
- The
Embassy sent the applicant several letters informing him of the
Russian authorities' position in the matter and giving reassurances
that the Russian party would try to solve the issues through
bilateral dialogue.
D. Subsequent developments
- On 8 October 2007, the day the applicant's release was
ordered by a court (see paragraph 16 above), the Board gave him a
written reminder that his expulsion order was still in force. Some
further measures were applied as well – the applicant had to
reside in his fixed residence, to report to the Board at certain
intervals, and to inform the Board of any change in his place of
residence or if he left it for an extended period.
- On 5 February 2008 the Harju County Court, in
misdemeanour proceedings, sentenced the applicant to ten days'
detention for staying in Estonia without a legal basis. The judgment
was upheld in substance by the Tallinn Court of Appeal. On 14 May
2008 the Supreme Court refused, on procedural grounds, to examine the
applicant's appeal as it had not been drawn up by a lawyer as
required by law.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
- Section
5 of the Obligation to Leave and Prohibition of Entry Act
(Väljasõidukohustuse ja sissesõidukeelu
seadus), as in force at the material time, defined expulsion as
the enforcement of an obligation to leave in the cases and pursuant
to the procedure provided by law.
Section
7 of the Act provided that an order to leave Estonia could be issued
to an alien who was staying in Estonia without a legal basis and that
it had to contain a warning of compulsory execution in the event of
failure to comply with it. According to section 8, the compulsory
execution was to take place after the sixtieth day following
notification of the order.
Section
14(4) of the Act enumerated the instances where expulsion would not
be applied. These included the case where expulsion was no longer
feasible.
Section
18(1) of the Act stipulated that expulsion of an alien had to be
completed within forty-eight hours of his or her arrest. If it was
not possible to complete expulsion within that term, the person to be
expelled could be placed in a deportation centre, subject to judicial
authorisation, until their expulsion, but for no longer than two
months (section 23(1)). This term could be extended at the request of
the Board by up to two months at a time (section 25).
Under
section 26-4(1) of the Act, the person to be expelled was required to
co-operate in the organisation of the expulsion, including
co-operating in obtaining the necessary documents for expulsion.
- On
1 June 2007 an Agreement between the European Community and the
Russian Federation on readmission entered into force. The aim of the
agreement is to strengthen the parties' co-operation in order to
combat illegal immigration more effectively. Article 2 of the
agreement, concerning readmission of Russian nationals, reads as
follows:
“1. The Russian Federation shall admit, upon
application by a Member State and in accordance with the procedure
provided for in this Agreement, any person who does not, or no
longer, fulfil the conditions in force for entry to, presence in, or
residence on the territory of the requesting Member State provided it
is established, in accordance with Article 9 of this Agreement, that
such person is a national of the Russian Federation.
The same shall apply to illegally present or residing
persons who possessed the nationality of the Russian Federation at
the time of entering the territory of a Member State but subsequently
renounced the nationality of the Russian Federation in accordance
with the national laws of the latter, without acquiring the
nationality or a residence authorisation of that Member State or any
other State.
2. After the Russian Federation has given a positive
reply to the readmission application, the competent diplomatic
mission or consular office of the Russian Federation shall
irrespective of the will of the person to be readmitted, as necessary
and without delay, issue a travel document required for the return of
the person to be readmitted with a period of validity of 30 calendar
days. If, for any reason, the person concerned cannot be transferred
within the period of validity of that travel document, the competent
diplomatic mission or consular office of the Russian Federation shall
issue a new travel document with a period of validity of the same
duration without delay.”
- In
a judgment of 13 November 2006, the Administrative Law Chamber of the
Supreme Court (case no. 3-3-1-45-06) found that the assessment of the
feasibility of expulsion could not be based on the fact that the
person concerned did not wish to leave the country and wanted to stay
there. An interpretation to the contrary would have been in conflict
with the nature of expulsion as a legal concept.
- In
a judgment of 3 April 2008, the Administrative Law Chamber of the
Supreme Court (case no. 3-3-1-96-07) noted that both the Board's
request and the court's authorisation for detention had to be based
on the law in force at the time of the court proceedings. It pointed
out, however, that since expulsion proceedings constituted a dynamic
process, due attention had to be given to the prospective changes in
legal circumstances which would affect expulsion at the time when the
person concerned was expected to be expelled.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §
1 OF THE CONVENTION
- The
applicant complained that his right to liberty had been violated by
his protracted detention in the deportation centre. He relied on
Article 5 § 1 of the Convention
which, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
- The
Government contested that argument.
A. Admissibility
1. Abuse of the right of petition
- The
Government considered that the applicant had not acted in good faith
but had abused his right of petition as he had submitted to the Court
information concerning his expulsion proceedings only selectively.
They noted, in particular, that he had failed to inform the Court
about his alleged loss of his passport and his further attempts to
hinder the completion of the expulsion proceedings, including his
refusal to fill out the necessary forms for identity documents to be
issued. He had been aware of the fact that the Russian authorities
had not accepted the solution suggested by the Estonian authorities
that the latter issue the applicant a temporary travel document.
- The
applicant disagreed.
- The
Court observes that all the elements referred to by the Government
were mentioned in the copies of the domestic decisions submitted by
the applicant and therefore the Court was sufficiently informed about
the relevant circumstances of the case at the time when it took its
decision to give notice of the application to the Government (see the
partial decision on admissibility of 8 January 2008). Therefore, this
objection is dismissed.
2. Non-exhaustion of domestic remedies
- The
Government argued that the applicant had not exhausted domestic
remedies with regard to the issue of his deprivation of liberty or
the legality of his continued detention. In respect of the
deprivation of liberty, the Government noted that the applicant had
not appealed against the Tallinn Administrative Court's decision of
31 October 2003 whereby his placement in the deportation centre had
been authorised. In so far as the applicant's subsequent stay in the
deportation centre was concerned, the Government emphasised that the
domestic courts, when authorising the extension of his detention in
the deportation centre, had dealt with the issue only in the context
of extending the stay. If the applicant had believed that the length
of his detention had been unlawful, he should have filed a separate
claim for damages.
- The
applicant submitted that he had appealed against the Administrative
Court's decision of 31 October 2003 but since his detention had been
extended by the Administrative Court on 30 December 2003, the appeal
had become void of substance and he had withdrawn it.
- The Court reiterates that the purpose of Article 35 is
to afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Convention institutions (see, among
many other authorities, Selmouni v. France [GC], no.
25803/94, § 74, ECHR 1999 V). The Court observes that after
the initial decision whereby the applicant's detention was authorised
by the Tallinn Administrative Court, his continued detention was
subsequently authorised bimonthly by the same court. The Court notes
that in the latter proceedings he made use of his right to appeal to
the court of appeal and to the Supreme Court on several occasions.
Moreover, the applicant was released from the deportation centre
after the Tallinn Administrative Court had refused to extend his
detention on 8 October 2007. Thus, the Court considers that the
domestic authorities have had an opportunity of putting right the
alleged violation of the applicant's right to liberty. In the context
of the present case it is not of decisive importance whether or not
the applicant appealed against the initial decision as at that time
the issue of the compatibility of the length of his detention with
Article 5 § 1 (f) could not
possibly have arisen. As to the question whether the applicant should
have filed a separate claim for damages, the Court does not consider
that he would have had any prospect of success in such proceedings as
his detention had been authorised by administrative courts which had
considered it lawful. Therefore, this objection is also dismissed.
3. Conclusion as to admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The submissions of the parties
(a) The applicant
- The
applicant argued that he had not been detained for the purpose of his
deportation and considered that the real reason for his detention had
been to force him to co-operate and apply for a Russian passport. He
emphasised, however, that deportation meant execution of the
obligation to leave by the force of the State, and that the
authorities had had no reason to count on his co-operation as in his
opinion his stay in Estonia had a legal basis. The extension of his
detention – whereby the domestic courts referred to his failure
to fulfil his obligation to co-operate with the authorities –
had actually become a form of punishment and a means of breaking his
will. Even assuming that the authorities had initially pursued a
legitimate aim, they had later wished to force him to sign the
documents and thereafter waited for the changes in international law
to take effect.
The
applicant pointed out that the exceptions to the right to liberty,
listed in paragraph 1 of Article 5, had to be interpreted narrowly
and that detention ceased to be justified under subparagraph (f) if
the deportation proceedings were not conducted with due diligence.
(b) The Government
- The
Government maintained that the applicant's detention had been lawful
under domestic law. The only purpose of his detention had been his
expulsion from Estonia; this was demonstrated by the pertinent court
decisions as well as by the other steps taken by the authorities. The
applicant's refusal to co-operate had only extended the period of his
detention. The Government pointed out that the feasibility of
expulsion could not be assessed on the basis of whether the person
concerned wished to leave the country or not. They also emphasised
that in 2006 and 2007 the Estonian authorities could legitimately
presume that after the entry into force of the EU-Russia readmission
agreement on 1 June 2007 there would be an additional basis for the
applicant's expulsion. The Estonian authorities could not have
foreseen that the Russian party would not comply with its obligations
under that agreement.
- The
Government argued that periodic judicial review of the applicant's
detention had constituted a sufficient guarantee against
arbitrariness. Moreover, it had been repeatedly explained to the
applicant what he needed to do in order to be released. At the same
time, international and diplomatic channels had been used to find
other possibilities for the applicant's expulsion.
- The
Government insisted that the applicant's own behaviour had
contributed to a significant extent to the length of his detention.
They pointed out that the applicant, claiming that he had lost his
passport, had shown no readiness to apply for a new identity or
travel document; nor had the Russian authorities been ready to issue
him such a document in the absence of his application or to accept a
temporary travel document the Estonian authorities could have issued.
The Government pointed to the efforts made by the Estonian
authorities through diplomatic channels to find a solution to the
situation, and to the fact that they had presumed that the
applicant's expulsion would prove easier after the entry into force
of the EU-Russia readmission agreement. They emphasised that when it
had become clear that the applicant's expulsion was not realistically
possible at the time, he had been released from the deportation
centre.
- In
conclusion, considering the time-consuming nature of communication
between states and the unwillingness of the receiving State to
co-operate, as well as the applicant's own intentional failure to
present an identity document and refusal to apply for one, plus the
fact that he had enjoyed completely appropriate conditions
throughout, his stay in the deportation centre had been in conformity
with Article 5 § 1 (f).
2. The third-party intervener's arguments
- The
Russian Government agreed in substance with the applicant's
arguments. They considered that the applicant's protracted detention
had been in violation of Article 5 §
1. They noted that the Estonian authorities had found out shortly
after the applicant's arrest that it was impossible to deport him
without travel documents and that such documents could not be
obtained without his co-operation. The applicant's detention had been
aimed at breaking his will and forcing him to sign documents needed
for him to leave the country. In the opinion of the Russian
Government the applicant's conduct could not have justified such a
long period of detention. They pointed out that after his release
less severe measures, such as police control, had been applied and
there had been no reason why such measures could not have been
applied before.
3. The Court's assessment
(a) Whether the applicant's detention fell
within the scope of Article 5 § 1 (f)
- The
Court reiterates that subparagraphs (a) to (f) of Article 5 §
1 of the Convention contain an exhaustive list of permissible grounds
of deprivation of liberty, and no deprivation of liberty will be
lawful unless it falls within one of those grounds (see, inter
alia, Saadi v. the United Kingdom [GC], no. 13229/03, §
43, ECHR 2008 ...).
- In
the present case, the Government contended that the applicant was
deprived of his liberty with a view to expulsion and that his
detention had been permissible under subparagraph (f) of Article 5 §
1. The applicant and the Russian Government contested that argument,
considering that the real purpose of his detention had been to break
his will and to force him to co-operate. They were of the opinion
that, even assuming that his detention had initially been aimed at
his expulsion, this had soon proved impossible and the detention had
become a punitive measure.
- The
Court observes that the applicant was refused an extension of his
residence permit, was ordered to leave the country and was warned
that his failure to leave would result in his expulsion. As he failed
to leave within the time-limit and his immediate expulsion was
impossible because of lack of travel documents, an administrative
court authorised his placement in the deportation centre on the basis
of the Obligation to Leave and Prohibition of Entry Act. Thus, the
Court has no reason to doubt that the applicant's detention, at least
initially, fell within the scope of Article 5 §
1 (f).
(b) Whether the applicant's detention was
arbitrary
- The
Court reiterates that Article 5 § 1 (f) does not demand that
detention be reasonably considered necessary, for example to prevent
the individual from committing an offence or fleeing. Any deprivation
of liberty under the second limb of Article 5 § 1 (f) will be
justified, however, only for as long as deportation or extradition
proceedings are in progress. If such proceedings are not prosecuted
with due diligence, the detention will cease to be permissible under
Article 5 § 1 (f) (see A. and Others v. the United Kingdom
[GC], no. 3455/05, § 164, 19 February
2009, and Chahal v. the United Kingdom, 15 November 1996, §
113, Reports of Judgments and Decisions 1996 V).
- The deprivation of liberty must also be “lawful”.
Where the “lawfulness” of detention is in issue,
including the question whether “a procedure prescribed by law”
has been followed, the Convention refers essentially to national law
and lays down the obligation to conform to the substantive and
procedural rules of national law. Compliance with national law is
not, however, sufficient: Article 5 § 1 requires in addition
that any deprivation of liberty should be in keeping with the purpose
of protecting the individual from arbitrariness. It is a fundamental
principle that no detention which is arbitrary can be compatible with
Article 5 § 1 and the notion of “arbitrariness” in
Article 5 § 1 extends beyond lack of conformity with national
law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and thus contrary to the Convention
(see Saadi, cited above, § 67). To avoid being branded as
arbitrary, detention under Article 5 § 1 (f) must be carried out
in good faith; it must be closely connected to the ground of
detention relied on by the Government; the place and conditions of
detention should be appropriate; and the length of the detention
should not exceed that reasonably required for the purpose pursued
(see A. and Others v. the United Kingdom, cited above, §
164, and, mutatis mutandis, Saadi, cited above, §
74).
- As
concerns the compliance of the applicant's detention with national
law in the present case, the Court observes that the domestic courts,
in extending his detention every two months, found it lawful. The
Court further observes that sections 23 and 25 of the Obligation to
Leave and Prohibition of Entry Act, relied on by the domestic
authorities, provided a legal basis for such detention.
- However,
as noted above, compliance with domestic law is not in itself
sufficient to establish lack of arbitrariness and further elements,
referred to in paragraph 60 above, must be examined in this context.
One of these elements is the length of the detention, which should
not exceed that reasonably required for the purpose pursued.
- The
court reiterates that deprivation of liberty under Article 5 § 1
(f) is justified only for as long as deportation proceedings are
being conducted. It follows that if such proceedings are not being
prosecuted with due diligence, the detention will cease to be
justified under this subparagraph (see, mutatis mutandis,
Quinn v. France, 22 March 1995, § 48, Series A no. 311).
- The
Court observes that the applicant's detention with a view to
expulsion was extraordinarily long. He was detained for more than
three years and eleven months. While in the beginning of his
detention the domestic authorities took steps to have documents
issued to him, it must have become clear quite soon that these
attempts were bound to fail as the applicant refused to co-operate
and the Russian authorities were not prepared to issue him documents
in the absence of his signed application, or to accept a temporary
travel document the Estonian authorities were ready to issue. Indeed,
the Russian authorities had made their position clear in both
respects by as early as June 2004. Thereafter, although the Estonian
authorities took repeated steps to solve the situation, there were
also considerable periods of inactivity. In particular, the Court has
been provided with no information on whether any steps with a view to
the applicant's deportation were taken from August 2004 to March 2006
(see paragraphs 18 to 33 above).
- What
is more, the applicant's expulsion had become virtually impossible as
for all practical purposes it required his co-operation, which he was
not willing to give. While it is true that States enjoy an
“undeniable sovereign right to control aliens' entry into and
residence in their territory” (see, for example, Saadi,
cited above, § 64, with further
references), the aliens' detention in this context is nevertheless
only permissible under Article 5 § 1
(f) if action is being taken with a view to their deportation. The
Court considers that in the present case the applicant's further
detention cannot be said to have been effected with a view to his
deportation as this was no longer feasible.
- It
is true that at some point the Estonian authorities could
legitimately have expected that the applicant could be removed on the
basis of the EU-Russia readmission agreement once it entered into
force, as under this agreement the Russian authorities were required
to issue travel documents to persons to be readmitted irrespective of
their will. However, the agreement entered into force only on 1 June
2007, which was about three years and seven months after the
applicant was placed in detention. In the Court's opinion the
applicant's detention for such a long time even if the conditions of
detention as such were adequate could not be justified by an expected
change in the legal circumstances.
- The
Court also notes that after the applicant's release on 9 October 2007
he was informed that he still had to comply with the order to leave.
He was obliged to report to the Board at regular intervals (see
paragraph 35 above). Thus, the authorities in fact had at their
disposal measures other than the applicant's protracted detention in
the deportation centre in the absence of any immediate prospect of
his expulsion.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the grounds for the applicant's detention –
action taken with a view to his deportation – did not remain
valid for the whole period of his detention due to the lack of a
realistic prospect of his expulsion and the domestic authorities'
failure to conduct the proceedings with due diligence.
There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government reiterated that the applicant had not exhausted domestic
remedies since he had failed to lodge a complaint and claim damages
before an administrative court. Alternatively, the Government argued
that the applicant's release from detention had constituted
sufficient redress. Should the Court nevertheless find that the
applicant had sustained non-pecuniary damage, the Government
requested the Court to award him a reasonable sum.
- The
Court notes that the argument concerning the non-exhaustion of
domestic remedies has been dismissed (see paragraph 48 above). It
finds that the applicant has suffered non-pecuniary damage as a
result of the violations found. Deciding on an equitable basis, and
having regard to the specific circumstances of the present case and
to the applicant's behaviour in particular, the Court awards the
applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 40,731.30 kroons (EEK – approximately
corresponding to EUR 2,603) for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government pointed out that most of the invoices submitted by the
applicant concerned costs not related to the present case. Only
translation costs in the amount of EEK 3,260.40 (EUR 208) were
related to the proceedings before the Court but this sum had in fact
not been paid by the applicant.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. The Court notes that in the present case
only costs in the amount of EUR 208 were related to this case either
at the domestic level or before the Court. Regard being had to the
information in its possession and the above criteria, the Court
awards the applicant EUR 208 in respect of costs and expenses, plus
any tax that may be chargeable to the applicant, and dismisses the
remainder of his claims under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the remainder of the
application admissible;
- Holds by six votes to one that there has been a
violation of Article 5 § 1 of the
Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Estonian kroons at the rate applicable
at the date of settlement:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
208 (two hundred and eight euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to him on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Maruste is annexed to this judgment.
P.L.
C.W.
DISSENTING OPINION OF JUDGE MARUSTE
- I
agree with the majority that the overall length of the applicant's
detention was too long. But my point of view is that this case does
not belong to the family of ordinary expulsion cases and should be
assessed differently. It has to be noted also that this case is only
about length of detention pending expulsion and not about the
substantive question of expulsion. The latter complaint was declared
inadmissible on 5 January 2006.
- Firstly,
unlike ordinary expulsion cases this case has a specific
international law background – a bilateral treaty on the
withdrawal of Russian troops from Estonian territory. Under the terms
of that treaty, the applicant was obliged to leave the country (pacta
sunt servanda!). Furthermore, it was established through free and
fair court proceedings that he did not have any legal grounds to stay
in Estonia (see paragraphs 7 and 8 of the judgment). No
humanitarian ground was established for military servicemen of
approximately 50 years of age to stay in the country. It should be
noted that sections 23 and 25 of the Obligation to Leave and
Prohibition of Entry Act, relied on by the domestic authorities,
provided a legal basis for the applicant's detention.
- Secondly,
the applicant's own obstructive behaviour has to be taken into
account. It has been shown by the Estonian authorities that he had
been issued a valid Russian passport. Even assuming that he had lost
it, it could easily have been replaced by a new passport or other
travel document immediately if he had agreed to sign an application
form. At the same time it has also to be noted that in spite of their
treaty obligation and the commitments concerning readmission signed
with the EU on 25 May 2006, the relevant authorities of the
applicant's country of origin showed clear unwillingness to cooperate
and put a stop to the applicant's sufferings. Under that agreement
between the EU and Russia the Russian authorities were required to
issue travel documents to persons to be readmitted, irrespective of
their will.
- Thirdly,
as concerns the argument that the authorities could have applied more
lenient measures, such as police supervision, to ensure the
applicant's compliance with his obligation to cooperate and execute
his expulsion, it must be reiterated that detention under Article
5 § 1 (f) does not have to be considered
“necessary”; provided that the detention concerns a
person against whom action is being taken with a view to deportation,
it may suffice that such detention is considered “appropriate”
(see Agnissan v. Denmark, (dec.) no. 39964/98, 4 October
2001). States have a recognised sovereign right to control entry and
stay on their territory and should have the power to expel those who
do not have the right to stay. In sum, the lengthy stay in the
detention centre was to a large extent caused by the applicant
himself and by his country of origin.
- Lastly,
I consider it very problematic to award compensation in cases where
the violation has occurred (or even been achieved) through manifestly
obstructive behaviour in defiance of law and order and valid judicial
decision.
