CASE OF MIKOLENKO v. ESTONIA
Violation of Art. 5-1;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1954 in Ukraine and lives in Tallinn. 6. 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). 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. From 4 November 2003 the applicant was detained in the deportation centre in Harku, Harju County. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. The Board’s attempts to achieve the applicant’s removal included the following steps. 19. 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. 20. 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. 21. 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. 22. On 23 July 2004 the Board asked the Ministry of Foreign Affairs to request the Embassy to provide the applicant with the requisite papers. 23. 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. 24. 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). 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. On 25 December 2007 the Embassy reiterated that the Russian authorities considered that the applicant did not fall under the readmission agreement. 31. On 4 February 2008 the Ministry of Foreign Affairs confirmed its position that the applicant was subject to the readmission agreement. 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. 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. 38. 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.” 39. 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. 40. 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.