DOROCHENKO v. ESTONIA
Inadmissible
Nicolas Bratza
The applicants, Mr Vladimir Dorochenko and Ms Nina Dorochenko, are Russian nationals, who were both born in 1949 and live in Smolensk, the Russian Federation. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. Mr Vladimir Dorochenko, the first applicant, was born in Ukraine. In 1951 he moved to Estonia together with his parents. In 1970 he married Ms Nina Dorochenko, the second applicant, who had been born in Estonia in 1949. Both applicants are of Russian origin. The applicants have three children who all live in Estonia. Their daughter Yulia (born in 1971) is a stateless person. She has a permanent residence permit in Estonia. The applicants’ first son Sergey (born in 1975) is a Russian national. He too holds a permanent residence permit. The applicants’ second son Vitaly (born in 1983) is a Russian national and he holds a temporary residence permit in Estonia for five years (until 11 July 2006). At the time the application was lodged with the Court, he was living together with the applicants. The first applicant’s mother who had had a permanent residence permit to live in Estonia died on 4 December 2004. His father (born in 1923), a Russian national, resides in Estonia on the basis of a permanent residence permit. The second applicant’s mother and the applicants’ grandchildren are also living in Estonia. From 1969 to 1995 the first applicant served in the Soviet and Russian armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory. In 1995 until his assignment to reserve on 12 April 1995 (see below) the first applicant served as a senior midshipman in the Paldiski military unit. His duties included the dismantling of a nuclear reactor in Paldiski. On 10 April 1995 the commander of the Paldiski military unit issued a decree by which the first applicant was assigned to the reserve as of 12 April 1995. He was discharged from the Paldiski military unit and sent to the Zadneprovsk military unit in Smolensk, Russia. According to the decree, it was decided to allocate financial means to the applicants and their two sons for their travel to Smolensk. As the applicants did not have housing in Russia, the first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America. On 10 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he received housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it. On 20 April 1995 the first applicant submitted an application for taking part in the programme. In the application form, signed by the first applicant, it was stated that if he were to receive a dwelling in the context of the aid programme, he, together with his family, would vacate the dwelling that was at his family’s disposal in the Baltic country and not seek to stay in the Baltic countries as permanent residents. It further stated that in the future he would be able to visit the Baltic countries only as a foreigner. It was stated that he and his family did not possess a dwelling in the Baltic countries and that they would not seek to privatise or sell the dwelling at their disposal and that they had not received and would not receive any payment for vacating their current dwelling. It was also stated that he confirmed that at the moment of signing the application he did not have housing in Russia and that he had not paid anyone for the right to take part in the programme. It was stated that he was aware that if all the preconditions for taking part in the programme were fulfilled and he were to comply with all the conditions and requirements of the programme, he would receive money for buying a dwelling. Finally, it was stated that he was also aware that the participation in the programme was voluntary and that if it were to prove unsuccessful, his place in a municipal waiting list of applicants for dwelling would be retained. On 21 April 1995 the first applicant concluded an agreement in Smolensk with the company Smolenskiy DSK to the effect that he would pay an equivalent of 25,000 US dollars and receive an apartment at Popov Street 120-349 in Smolensk. The agreement was to become valid if the first applicant were to get money in the context of the programme for granting military reserve officers certificates for obtaining housing. On 4 July 1995 the applicants submitted an application for a residence permit in Estonia. On 31 August 1995 the mayor of Smolensk allocated apartment no. 337 at 120 Popov Street to the first applicant and ordered that he be registered as its owner. On 18 December 1995, the first applicant was entered in the list of staff of the military unit in Smolensk. On 11 July 1996 the applicants were granted temporary residence permits in Estonia for five years. As from 1997 the first applicant was working as a guard in Estonia. The second applicant was working as a housemaid, also in that country, as from 1999. In 1999 the Foreigners’ Act (Välismaalaste seadus) was amended so as to exclude the possibility of issuing or extending residence permits to persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme. On 28 November 2000 the second applicant privatised (purchased on favourable conditions from the municipality) an apartment no. 56 at 1 Muuli Street in Paldiski. On 13 February 2001 the second applicant, acting as her son Sergey’s proxy, privatised an apartment no. 10 at 1 Kivi Street in Paldiski. On 30 April 2001 the applicants applied for extensions of their residence permits. On 2 November 2001 the Minister of the Interior issued orders by which the applicants were refused extensions. The refusal was based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired. This ground applied also to the second applicant as a family member of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus). They contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They also maintained that their commitment to leave the country had not been made to the Estonian authorities. They further complained that their right to family and private life had been violated. On 8 May 2002 the Tallinn Administrative Court dismissed the complaint. It observed that the Foreigners’ Act provided that the residence permits of former professional members of armed forces of a foreign country and of their family members could be extended only in exceptional circumstances. Although the Minister of the Interior’s orders did not state why such an exception did not apply in the applicants’ case, the Administrative Court found the orders to be lawful, since the Foreigners’ Act in any case did not permit extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received accommodation abroad within the framework of an international aid programme. It dismissed the applicants’ claim that their legitimate expectation rights and the principle of legal certainty had been violated, holding that the principle of legitimate expectation could not be extended so far as to prevent the legislator from making any changes to the legislation in force at any point of time. The Administrative Court rejected the complaint concerning the violation of the right to family and private life, finding that the applicants could enjoy family life in the country of which they were nationals and in which they had undertaken to settle, when consenting to participate in the aid programme. In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants stressed that the first applicant’s elderly parents, whom the applicants had to take care of, lived in Estonia. The second applicant had been born in Estonia and had been living there ever since. The first applicant had lived in Estonia for fifty years. They supported financially their children, who lived in Estonia, including one child who lived together with them. Also their grandchildren lived in Estonia. The first applicant had opted for the aid programme and adopted Russian nationality only because of the lack of certainty as to the possibility to remain living in Estonia. On 6 January 2003 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. The Court of Appeal noted that in his written consent to take part in the aid programme, the first applicant had stated that the size of his family was four persons, including the two sons. Thus, the first applicant had known already at the time he had been consenting to take part in the aid programme that his parents would remain in Estonia. On 20 May 2003 the Supreme Court (Riigikohus) upheld the judgments. It reiterated that on 26 July 1994 Estonia and the Russian Federation had concluded a treaty concerning the withdrawal of the Russian troops from Estonia. According to the treaty the Russian military servicemen and their family members had to leave Estonia. The United States aid programme had been set up to facilitate the resettling of the military servicemen. The fact that Estonia had not been a party to the programme, did not, in the Supreme Court’s view, exclude the legitimacy of the enactment and application of the provision of the Foreigners’ Act, under which the applicants had been denied the extensions of the residence permits. The Supreme Court agreed with the opinion of the Court of Appeal that in case the first applicant’s parents wished to stay in Estonia, the grown-up children of the applicants could take care of them. On 5 September 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet) issued a precept to the applicants requiring them to leave Estonia. The applicants complied with the precept and cancelled their registration of residency in Paldiski. According to the population registration database the applicants left Estonia on 25 November 2003 and settled in Smolensk. In the applicants’ submission they had to leave Estonia in December 2003, after the police had entered their flat in November in order to execute the precepts by force. Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision. Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case. According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia. The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers. According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme. In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme). In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned. Participation in the Programme was voluntary; no enrolment fee was required. After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994. According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year. The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security. On 30 July 1994 an agreement on the procedure and terms for the dismantling of the nuclear reactors, and for ensuring nuclear and radiation safety on the Pakri peninsula of the Republic of Estonia was concluded between the Government of Estonia and the Government of the Russian Federation. This Agreement entered into force on the day of its signing and it remained effective until 30 September 1995. According to the Agreement, work for the dismantling of nuclear reactors and ensuring nuclear and radiation safety was to be performed by specialists of the Russian Federation. Estonia undertook to give temporary residence permits to the specialists and their family members for the period of validity of the agreement. In cases where the postponement of the departure was required, including the absence of the housing in Russia, the validity of the residence permits of the family members could be extended until 15 May 1996. After the expiry of the residence permits the specialists together with their family members had to leave Estonia.