MIKOLENKO v. ESTONIA
Inadmissible
Nicolas Bratza
The applicants, Mr Nikolai Mikolenko, Ms Ljubov Mikolenko and their son Mr Oleg Mikolenko, are Russian nationals, who were born in 1954, 1955 and 1985, respectively, and live in Estonia. 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 Nikolai Mikolenko, the first applicant, was born in Ukraine. At the time the application was lodged with the Court, he was married to Ms Ljubov Mikolenko, the second applicant, who was also born in Ukraine. Their son, Mr Oleg Mikolenko, the third applicant, was born in Estonia. The first and the second applicant have also another son, Bogdan, who was born in 1980. He has a permanent residence permit in Estonia. The first applicant served in the Soviet and Russian armed forces from 1975 to 1994, when he retired as a warrant officer. From 1977 to 1983 he served in the territory of the German Democratic Republic. In 1983 he was transferred to military unit no. 12129 in the Baltic military district. The first and the second applicants have been living in Estonia since then. Since 1989 the applicants have been registered as inhabitants in the apartment at Kolde puiestee 84-1 in Tallinn. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory. On 4 August 1994 the first applicant was assigned to the reserve forces by the decree of the commander of the military unit no. 12129. According to the transcript of the decree, he was discharged from the military unit and excluded from the provision of all types of supplies as of 18 October 1994. As from 1994 the first applicant worked as a manager in a private company. The second applicant has been working as a nurse in a kindergarten since 1983. On 31 March 1995 the first applicant submitted an application for a residence permit in Estonia. At that time his parents were living in Ukraine. The first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America (USA). On 9 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 would receive 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 10 April 1995 the second applicant privatised (purchased on favourable conditions from the municipality) the apartment at Kolde puiestee 84-1 in Tallinn. According to the data in the land register, as at 6 December 2004, this apartment was still in the ownership of the second applicant. In the form filled out on the basis of the interview conducted with the first applicant by a staff of the aid programme on 18 April 1995 concerning the grounds of participation in the programme and the amount of financing by the bank, it was noted that the first applicant was entitled to enrol in the programme. According to the document, in reply to the question how he would describe his and his family’s feelings in connection with leaving the Baltic countries, he chose the following answer from among the multiple choices: “we are very happy about the departure”. In reply to the question why he had chosen St. Petersburg as the possible new residence, he answered: “relatives”. To the question what he would miss most when moving to the new place, he replied colleagues of his military unit. On 14 June 1995 the first applicant, holder of the certificate SP-223, issued by the aid programme, concluded a purchase agreement for an apartment at Savushkin Street 134-3-5 with the St. Petersburg City Construction Authority. According to the agreement, the price of the apartment was 27,540 US dollars (USD), of which USD 25,000 was to be paid by the United States Agency for International Development and USD 2,540 by the first applicant. On 15 June 1995 the apartment purchased by the first applicant was registered as his property by the relevant bureau of the St. Petersburg City Government. According to the information from the State Registry of the Russian Federation, submitted by the respondent Government in the context of the proceedings concerning the applicants’ legal aid request, as at 3 May 2005 the apartment was still in the ownership of the first applicant. On 11 July 1996 the first and the second applicants were granted temporary residence permits in Estonia for two years. The third applicant received a temporary residence permit on 25 November 1996. The date of its expiry was the same as the expiry date of the residence permits of his parents, i.e. 11 July 1998. On 12 July 1998 the temporary residence permits of the applicants were extended until 12 July 1999. In July 1999 their residence permits were further extended until 1 January 2000. On 1 October 1999 an amendment to the Foreigners’ Act (Välismaalaste seadus) entered into force so as to exclude the possibility of issuing or extending residence permits for persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme. On 8 May and 14 June 2000 the Minister of the Interior issued orders by which the applicants were refused extensions of their residence permits. The refusals were 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 from there. This ground applied also to the second and the third applicants as family members (spouse and minor child) 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), which, by a judgment of 16 November 2001, dismissed the complaint. It observed that the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. According to the Foreigners’ Act such persons could not be granted extensions of residence permits. In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants 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 claimed that they should have been exceptionally granted residence permits under section 12(5) of the Foreigners’ Act. On 10 October 2002 the appeal was heard at the Tallinn Court of Appeal. The applicants did not appear at the hearing. On the day before the hearing the first applicant had submitted to the Court of Appeal a request to adjourn the hearing due to his deteriorated health condition. The Court of Appeal, nevertheless, held the hearing. It found that the first applicant had not provided a medical certificate and that he had failed to specify the reasons why he had been hindered from taking part in the hearing. The second and third applicants had not requested that the hearing be adjourned. By a judgment of 25 October 2002 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. It noted that the first applicant had served in the Russian army at the time the treaty concerning withdrawal of the Russian armed forces from Estonia had been concluded (26 July 1994). Accordingly, he was subject to removal, together with his family members, under the treaty. The Court of Appeal also found that it was established that the applicants had received accommodation abroad within the framework of an international aid programme and that they had committed themselves to leaving Estonia. In an appeal to the Supreme Court (Riigikohus) the applicants complained that their right to take part in the hearing at the Court of Appeal had been violated. They maintained that their commitment to leave the country had not been made to the Estonian authorities. They also complained about the retroactive application of the Foreigners’ Act and that they had been discriminated against, since several persons who had taken part in the aid programme had, in fact, been granted extensions of residence permits. On 17 April 2003 the Supreme Court upheld the judgments in substance, with modifications to their reasoning. The Supreme Court rejected the complaint concerning the inability of the applicants to take part in the hearing at the Court of Appeal. It noted that the applicants’ requests to adjourn the hearing had been granted repeatedly and found that, according to the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), the Court of Appeal could have rejected the appeal on the grounds of their failure to appear. With respect to the substance of the appeal, the Supreme Court found that the interference with the applicants’ right to family life had been proportionate to the aim pursued by the State – to ensure that the professional servicemen of the former Soviet army be withdrawn from Estonia. The Supreme Court deemed the fact that Estonia had not been a party of the international aid programme irrelevant to the legitimacy of the legislation prohibiting the extension of residence permits for persons who had benefited from the programme. On 6 June 2003 the third applicant was granted a temporary residence permit in Estonia with validity until 5 June 2008, since he had attained the age of majority and thus could no longer be considered as a family member of a retired officer of the armed forces. On 18 June 2003 the first and the second applicants dissolved their marriage. On 21 July 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) ordered the first applicant to leave the country on 17 September 2003 at the latest. On 29 July 2003 the first applicant lodged a complaint with the Tallinn Administrative Court requesting that the order be invalidated. On 11 August 2003 the Board refused to consider the second applicant’s request for a residence permit on an exceptional basis. The Board noted that, according to the applicable legislation, a request for a residence permit had to be submitted, as a rule, to an Estonian foreign representation. It established no circumstances which prevented the second applicant from doing so. On an unspecified date in 2003 the first applicant submitted to the Supreme Court a request to reopen the proceedings (teistmisavaldus) and to quash the previous administrative court judgments. He claimed that he was a subject of the Estonian-Russian agreement concerning the social guarantees to retired military personnel of the Russian armed forces in Estonia and, therefore, he and his family members could have lawfully been refused an extension of the residence permit only in the event that it had been established that he posed a threat to the national security of Estonia. On 10 September 2003 the Supreme Court refused the request. On 24 October 2003 the Tallinn Administrative Court dismissed the first applicant’s request to invalidate the 21 July 2003 order of the Board. He appealed against the judgment to the Tallinn Court of Appeal. The Court has not been furnished with information concerning the outcome of the appeal. On 29 October 2003 the police arrested the first applicant for illegally residing in Estonia. On 30 October 2003 the Tallinn City Court (Tallinna Linnakohus) imposed on him a fine of 1200 kroons (77 euros). Apparently he was released after the hearing, having been kept in detention for about 24 hours. On 31 October 2003 the Tallinn Administrative Court decided, upon a request by the police, that the first applicant had 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, his immediate deportation being impossible, since he had not presented a valid identification document (the applicant could not remember where his valid passport was). According to a medical certificate submitted to the Court, the first applicant was hospitalised between 2 and 4 November 2003. He has been detained in the deportation centre since November 2003. His detention has been extended by the Tallinn Administrative Court once every two months. The Board has been, unsuccessfully, attempting to expel him to Russia. On 3 March 2005 the first and second applicants lodged new complaints to the Court, concerning the first applicant’s prolonged detention and the conditions of detention in the deportation centre. These complaints have been registered as a separate application (no. 10664/05). In the meantime, on 9 March 2004 the Board refused the first applicant’s request for a residence permit. He challenged the refusal in the Tallinn Administrative Court, which on 19 May 2004 dismissed the complaint. The judgment was upheld by the Tallinn Court of Appeal. On 20 April 2004 the second applicant was served by the Board with an order to leave the country. On 28 June 2004 she was refused a residence permit. On 26 April 2005 the Board again refused the first applicant’s request for a residence permit. 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.