ECtHR - Mikolenko v. Estonia, Application no. 10664/05, 8 October 2009

Facts:

The applicant was 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. Repeated orders by the Estonian Migration Border to leave Estonia and subsequent appeals on the part of the applicant followed.

The applicant was later arrested on 29 October 2003 for not complying with the order to leave.  Since  immediate expulsion was not possible given that the applicant did not have a valid passport, the Administrative Court decided that the applicant was to be detained in a deportation centre for execution of the deportation order. It is unclear whether the Applicant actually lodged an appeal against this decision.

During the time of the applicant’s detention the Estonian Migration Board asked the Russian Embassy to issue the applicant a return certificate. However, 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. Attempts to obtain a valid document from the Russian Embassy to enforce expulsion failed and between August 2004 and March 2006 no further steps had been taken to secure the applicant’s expulsion.

On 11 June 2007, the Migration Board submitted a request to the Russian Embassy for the applicant to be readmitted on the basis of the EU-Russia readmission agreement, which entered into force on 1 June 2007, and according to which Russian  authorities  were  required  to  issue  travel documents to persons to be readmitted irrespective of their will.  However, 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. In the meantime, at the request of the Migration Board, the applicant’s detention was extended once every two months by the Administrative Court. The applicant appealed against the extension in some cases, but on each occasion the higher Court ultimately dismissed the appeals.

On 8 October 2007, the Administrative Court refused to further extend the applicant’s detention holding that it had become disproportionate and unconstitutional. On that day, the Board gave the applicant a written reminder that his expulsion order was still in force and he was ordered to reside in his fixed residence and to report before the Board of any temporary or definitive change  in his place of residence.

Decision & reasoning:

Admissibility

The Court refused both allegations of inadmissibility raised by the Governments regarding an alleged abuse of the right of petition and the non-exhaustion of domestic remedies.

1) As to the former objection, the Court dismissed the Government’s argument that the applicant had not acted in good faith by submitting to the Court selective information concerning  his  expulsion  proceedings. 

2) As to the objection of non-exhaustion of domestic remedies, the Court observed that the Applicant had appealed against the detention decisions so as to give the contracting State the opportunity of preventing or putting right the alleged violation against him. Additionally, the Court held that it was not decisive whether the applicant had appealed against the initial decision as at that time the compatibility of the length of his detention with art. 5(1)(f) of the Convention could not possibly have arisen.

Merits

1) The Court maintained that the applicant’s detention, at least initially, fell within the scope of Article 5 § 1 (f).

Indeed, the applicant failed to  leave within the time-limit and his immediate expulsion was impossible because of  lack  of  travel  documents. In addition, an  administrative  court  authorised  his placement in the deportation centre for the time necessary to enforce his expulsion.

2) The Court held that there  had been a violation  Article  5  §  1  of  the Convention since the grounds for the applicant’s detention 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.

Indeed, the Court firstly maintained that the deprivation of liberty under Article 5 § 1 (f), is justified only as long as deportation (or extradition) is in progress and pursued with due diligence (inter alia A. and Others v. the United Kingdom, no. 3455/05; Quinn  v.  France,  22  March  1995). In this respect, the Court noted that it had not been provided with  any  information  on  whether  any  steps  with  a  view  to  the  applicant’s deportation were taken from August 2004 to March 2006. This leaded the Court to conclude that in the present case the proceedings had not been conducted with due diligence after March 2006, so that they ceased to justify a deprivation of liberty under art. 5 § 1 (f).

Secondly, the Court affirmed that not only does art. 5§ 1 (f) require the deprivation of liberty to be lawful according to national legislation, but it also requires the detention to not be arbitrary, a notion that is independent from the domestic legality of the measure (Saadi  v.  the  United Kingdom [GC], no. 13229/03). 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 (Saadi; A. and Others v. the United Kingdom).

As  to  the case under analysis, the Court observed that the applicant had been  detained  for  more  than  three years  and  eleven  months and noted that the Estonian authorities must have been aware early on that attempts to acquire the necessary documents for the applicant’s deportation were bound to fail given the factual circumstances of the case. Therefore the Court concluded that the applicant’s prolonged detention  could not be said to have been enforced with a view to his deportation, which was not, in fact, feasible. Accordingly, the Court clarified that the applicant’s detention for such a long time could not be justified by an expected change in the legal framework, namely the entry into force of the EU-Russia readmission agreement on  1  June  2007. Additionally, the Court highlighted that the  authorities, in  the absence of any immediate prospect of his expulsion, had  at  their  disposal  alternative measures  other than  the  applicant’s  protracted  detention, namely reporting obligations, evidently applicable and in use in Estonia.  

Outcome:

The court held by six votes to one that there had been a violation of Article 5 § 1 of the Convention. 

Observations/comments:

Dissenting opinion of Judge Maruste

According to Judge Maruste, the decision take by the majority (which held a violation of art. 5(1)) did not take into due account the following particular circumstances:

Firstly, the  applicant  was  obliged  to  leave  the  country according to the bilateral  treaty  on  the  withdrawal  of Russian troops from Estonian territory concluded in 1994, and did not have any legal grounds to stay in Estonia according to the judgment rendered on January  2006  by the  European  Court  of  Human  Rights, that had  declared manifestly ill-founded  the previous applicant’s complaint related to the Estonian authorities’ refusal  to  extend  his  residence  permit.

Secondly, the applicant’s own obstructive behaviour, namely not signing any provided documents, largely caused the lengthy detention.

Thirdly, detention  under  Article  5 § 1 (f)  does not have to be considered “necessary”, it may suffice that such detention is considered “appropriate” (Agnissan v. Denmark, no. 39964/98, 4 October 2001).

Other sources:

Treaty on the withdrawal of the Russian troops from the Estonian territory, 26 July 1994

Agreement  concerning  social guarantees for retired military personnel of the armed forces of the Russian Federation in Estonia, concluded on 26 July 1994, Art. 2

Agreement  between  the  European  Community and the Russian Federation on readmission, 25 May 2006