Sergey DOLINSKIY v Estonia - 14160/08 [2010] ECHR 262 (2 February 2010)

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The European Court of Human Rights (Fifth Section), sitting on 2 February 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

The applicant, Mr Sergey Dolinskiy, is a Russian national who was born in 1959 in Russia and lives in Tallinn.

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

The applicant is a former Soviet and Russian Army officer who served from 1983 in Estonia. After the restoration of Estonian independence, he held a residence permit in that country in 1991 and 1992. According to the Estonian authorities, he has since then remained in Estonia without a legal basis. In 1994 the applicant was assigned to the Russian Army reserve forces. On 7 April 1995 he married M., a Russian national holding a long-term residence permit in Estonia.

In 2002 the proceedings concerning a request for a residence permit which the applicant submitted to the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) in 2000, were discontinued as he failed to bring his application into conformity with formal requirements.

On 15 November 2006 the Board rejected the applicant's request for a temporary residence permit as he had served from 1980 to 1994 as a professional member of the armed forces of a foreign state and had received accommodation in Russia within the framework of an international aid programme and had also received financial aid from the Republic of Estonia to leave the country. In respect of the applicant's marriage with M., the Board referred to M.'s statement according to which the applicant did not live at her address and she did not know where he was. According to the applicant, he did live with M. but the latter had been frightened by the Board's officials, which was why she had made such a statement. The applicant did not challenge the Board's refusal.

On 8 June 2007 the Board ordered the applicant to leave the country by 6 August 2007 at the latest. He was warned that in the event of failure to comply with the order, he would be expelled immediately.

On 10 August 2007 the Tallinn Administrative Court (halduskohus) decided, at the request of the Board, that the applicant was to be taken to a deportation centre for execution of the deportation order, his immediate expulsion being impossible as he did not have a valid travel document. His Russian passport issued on 7 June 2002 had expired on 7 June 2007. The Administrative Court authorised his detention for up to two months. He was detained in the deportation centre in Harku, Harju County. His appeal against the Administrative Court's ruling was dismissed by the Tallinn Court of Appeal (ringkonnakohus) on 2 October 2007. On 20 November 2007 the Supreme Court (Riigikohus) rejected his appeal.

A description of the deportation centre may be found in the Mikolenko judgment (Mikolenko v. Estonia, no. 10664/05, § 13, 8 October 2009).

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 several but not in all cases. On each occasion the higher courts dismissed his 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 no valid travel document and therefore his immediate expulsion was not possible. The courts considered that detention was an appropriate measure to encourage the applicant to co-operate with the authorities and apply to the Russian Embassy for a travel document. They found that the Estonian authorities were making sufficient efforts to complete the applicant's expulsion and the delay had been caused by the applicant's refusal to co-operate. The courts were not convinced by the applicant's assurances that he would comply with measures alternative to detention if released, noting that he had previously failed to comply with such measures and to behave in a law-abiding manner, giving false information concerning his personal details both to the Board's officials and to the court. The courts also had regard to the steps taken by the Board and the Ministry of Foreign Affairs in order to achieve the applicant's expulsion under the Agreement between the European Community and the Russian Federation on readmission (“the Readmission Agreement”).

On 28 March 2009, after the Board decided that the length of the applicant's detention had become disproportionate, he was released from the deportation centre.

During the applicant's stay in the deportation centre the authorities explained to him that in order to obtain a travel document for the Russian Federation he had to apply to the Embassy, but he refused to co-operate, considering himself to be a permanent resident of Estonia.

On 23 August 2007 the Board asked the Ministry of Foreign Affairs to transmit a readmission application to the Russian Embassy in Estonia (“the Embassy”) so that the Russian authorities could issue him travel documents in accordance with the Readmission Agreement.

On 3 September 2007 the Ministry of Foreign Affairs informed the Board that according to the Embassy matters concerning the Readmission Agreement were dealt with by the Russian Federal Migration Service (“the Migration Service”), to whom all applications had to be addressed via diplomatic channels.

On 13 September 2007 the Board requested the Ministry of Foreign Affairs to transmit an application concerning the applicant's readmission to the Migration Service.

On 30 October 2007 the Ministry of Foreign Affairs transmitted the application for the applicant's readmission to the Migration Service and informed the Board thereof.

On 31 December 2007 the Ministry of Foreign Affairs informed the Board that the readmission application concerning the applicant had been rejected because the materials submitted by the Estonian party had been incomplete.

On 21 January 2008 the Board transmitted to the Ministry of Foreign Affairs an updated readmission application.

On 12 March 2008 the Migration Service informed the Estonian Embassy in Russia that the readmission application had been rejected because the applicant was considered to fall under 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 on social guarantees”).

On 17 March 2008 the Ministry of Foreign Affairs informed the Board that the Russian authorities had rejected the readmission application.

On 25 March 2008 the Board sent a letter to the Ministry of Foreign Affairs explaining that the applicant had indeed served in the Soviet armed forces and had been assigned to reserve forces in 1994, but he could not fall under the Agreement on social guarantees as the agreement applied only to military pensioners. The applicant was not a military pensioner and his name had not been included in the lists of persons falling under the agreement. The Board requested the Ministry of Foreign Affairs to forward the explanations to the Migration Service.

On 3 April 2008 the Board asked the Migration Service to clarify the applicant's circumstances.

On 26 May 2008 officials of the Board and the Migration Service had a telephone conversation. According to an official of the Migration Service the management had not yet taken a decision in respect of the applicant. The Migration Service had asked the Ministry of Foreign Affairs of the Russian Federation to verify whether the applicant was a military pensioner but had not yet received a reply.

On 30 June 2008 an official of the Board again had a telephone conversation with an official of the Migration Service, who undertook to send a reply to the Board in the days to follow.

On 28 August 2008 the Migration Service informed the Board that they were continuing to examine the case on the basis of the materials previously submitted. At the same time, they noted the need to make a principal decision as to whether the Readmission Agreement also applied to Russian nationals who had stayed in Estonia since the days of the Soviet Union and who in some cases had been born in the former “Estonian Soviet Socialist Republic”. The Russian party was of the view that such persons could not be considered as illegal immigrants and therefore the Readmission Agreement did not apply to them. Furthermore, they noted that the Russian authorities were carrying out consultations with the European Commission on the matter. The Migration Service proposed to finally resolve the applicant's case after a common position had been reached between Russia and the European Community in respect of the applicability or non-applicability of the Readmission Agreement in respect of long-term residents.

On 8 September 2008 the Ministry of Foreign Affairs transmitted the above response to the Board.

On 11 September 2008 the Board informed the Ministry of Foreign Affairs that all the conditions required for readmission according to the Readmission Agreement had been met in the applicant's case. The Board referred to the earlier practice of the Migration Service according to which the Board's applications had been granted in respect of persons who had remained in Estonia since the days of the Soviet Union or who had been born in Estonia. The Board asked the Ministry of Foreign Affairs to transmit its letter to the Migration Service.

On 27 March 2009, the day before the applicant was released from the deportation centre, the Board gave him a reminder that he was still subject to the order to leave the country issued on 8 June 2007. Furthermore, he was obliged to live at his registered address, to report to the Board twice a month in order to clarify the situation concerning the fulfilment of the order to leave, and to inform the Board of any change of address or family situation and of any extended absence from his place of residence. Furthermore, he was ordered to pay 119,851 Estonian kroons (EEK, 7,660 euros (EUR)) for the costs of the compulsory execution of the obligation to leave (väljasõidukohustuse sundtäitmine) plus a fine (sunniraha) of EEK 10,000 (EUR 640).

In the meantime, on 16 October 2007, the applicant requested the Tallinn Administrative Court to annul the Board's decision of 15 November 2006 and order of 8 June 2007 (see above). As the time-limit for lodging an application for annulment had passed, the applicant requested that the time-limit be restored or, in the alternative, that the unlawfulness of the Board's decision and order be established. On 20 December 2007 the Administrative Court refused to restore the time-limit in respect of the application for annulment and decided to proceed with the complaint concerning the establishment of the unlawfulness of the Board's acts. On 31 March 2008 the Administrative Court discontinued the proceedings as the applicant withdrew his complaint.

On 14 November 2007 the applicant sought permission from the Board to be allowed, exceptionally, to lodge his application for a residence permit with the Board directly instead of submitting it to a foreign representation of Estonia. On 20 November 2007 the Board rejected his request. By a judgment of 22 April 2008 the Tallinn Administrative Court dismissed the applicant's complaint.

The applicant sought similar permission from the Board on 24 March 2008, 15 June and 31 August 2009, but to no avail.

The relevant domestic and international law and practice were summarised in the Mikolenko judgment (see Mikolenko, cited above, §§ 37 40).

“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 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 ...).

The Court observes that in the present case 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 fell within the scope of Article 5 § 1 (f).

Furthermore, the Court reiterates that any deprivation of liberty must also be “lawful” and in keeping with the purpose of protecting the individual from arbitrariness (see Mikolenko, cited above, §§ 59 60, with further references).

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 basis for such detention. Therefore, the Court is satisfied that the applicant's detention as such was lawful within the meaning of Article 5 § 1.

However, as noted above, compliance with domestic law is not in itself sufficient to establish lack of arbitrariness and further elements must be examined in this context.

The Court recalls that the intention of the domestic authorities, when they arrested the applicant on 10 August 2007, was to expel him as he had failed to comply with the order to leave the country. However, his expulsion was not possible immediately as he lacked the requisite travel documents. Thus, he was he placed in the deportation centre so that the authorities could make the necessary practical arrangements with the Russian authorities to effect his expulsion. It does not appear that the authorities had any other means at their disposal to ensure the removal of the applicant, who had no legal basis for staying in the country but refused to leave voluntarily or to display any readiness to co-operate.

The Board and the Ministry of Foreign Affairs made persistent efforts to effect the applicant's expulsion. First, they asked him to fill in the form required by the Russian authorities to issue him a passport. As the applicant refused to do this, the Estonian authorities sought to achieve his removal within the framework of the Readmission Agreement. In that context they made a number of requests to the Russian authorities. In spite of these steps taken by the Estonian authorities, because of the applicant's unwillingness to co-operate, combined with the position of the Russian authorities, who declined to treat him as falling under the Readmission Agreement, his removal proved impossible.

In these circumstances, the Court finds that the Estonian authorities acted in good faith in detaining the applicant. His detention fell under Article 5 § 1 (f) for the whole of its duration as the national authorities made persistent efforts to obtain his removal from the country.

The Court reiterates in this context that, subject to their obligations under the Convention, 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). This right would become void of substance if the State's decision could de facto be overruled by the person to be expelled. Indeed, were their removal to be dependent on themselves alone, such persons would be encouraged effectively to obstruct the proceedings related to their removal. It has to be emphasised in this context that the applicant could have put an end to his detention virtually immediately had he agreed to sign an application form to obtain a passport of the country of his nationality, which the Russian Embassy was ready to issue on receipt of a completed form.

In respect of the question whether the authorities could have applied more lenient measures, such as police control, to ensure the applicant's co-operation with a view to his expulsion, the Court reiterates 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, with a reference to the case of Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996 V). The Court finds no arbitrariness in the domestic authorities' assessment as to the appropriateness of the applicant's detention in the present case.

The Court considers that the Estonian authorities can be said to have acted with sufficient diligence in conducting the proceedings related to the applicant's expulsion. Moreover, in the Court's view the fact that the domestic courts extended the applicant's detention every two months, assessing the feasibility of his expulsion and the steps taken by the authorities in this connection, provided an important procedural guarantee for the applicant. It should also be noted that the administrative court's decisions could be appealed against to the court of appeal and to the Supreme Court and that the applicant on several occasions made use of that possibility.

As regards the place and conditions of the applicant's detention, the Court observes that the applicant was detained in a deportation centre where the conditions seem to have been better and the regime more relaxed than in a prison (see Mikolenko, cited above, § 13). The Court considers that the place and conditions of the applicant's detention were adequate and his detention cannot be said to have been arbitrary under this head.

Lastly, as concerns the length of the applicant's detention, the Court notes that depending on particular circumstances of individual cases it has, on the one hand, found periods of detention of almost three years and seven months (see Chahal, cited above) and over two years and eight months (see Kolompar v. Belgium, 24 September 1992, Series A no. 235 C) not to have been at variance with the requirements of Article 5 § 1 (f). On the other hand, the Court has found a violation where the detention under this provision lasted for less than two years (see Quinn v. France, 22 March 1995, Series A no. 311). In the present case the applicant's detention lasted for one year and seven and a half months, until the Board found that his detention had become disproportionate and he was released. Having regard to the specific circumstances of the present case and considering in particular the applicant's role in his detention, including the fact that he could have chosen at any moment to be set free and to move to his country of nationality, where there was no threat whatsoever against him, the Court finds that his detention complied with the requirements of Article 5 § 1 (f).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The Court notes at the outset that the applicant's request for a temporary residence permit was rejected by the Board on 15 November 2006 and that the applicant did not seek the annulment of this decision by an administrative court in accordance with the applicable procedural requirements, failing to lodge his complaint within the time-limit established by law.

The Court further observes that the applicant requested that an administrative court establish the unlawfulness of the Board's above decision and subsequently also that the Board's refusal to grant him permission to lodge an application for a residence permit directly with the Board be invalidated. The Court considers that these actions did not constitute an effective remedy for the protection of the applicant's right to family life as they would not have affected the Board's substantial decision not to grant the applicant a residence permit. In any event, in these administrative court proceedings the applicant respectively withdrew his complaint and did not appeal against the first-instance court's judgment.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The Court has also examined the remainder of the applicant's complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Sergey DOLINSKIY v Estonia - 14160/08 [2010] ECHR 262 (2 February 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/262.html Cite as: [2010] ECHR 262