European Court of Human Rights
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Cite as: [2008] ECHR 109
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
10664/05
by Nikolai MIKOLENKO
against Estonia
The European Court of Human Rights (Fifth Section), sitting on 8 January 2008 as a Chamber composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Volodymyr Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait Maruste,
Javier Borrego
Borrego,
Renate Jaeger, judges,
and Claudia
Westerdiek, Section
Registrar,
Having regard to the above application lodged on 3 March 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nikolai Mikolenko, is a Russian national who was born in 1954. He is a former Soviet and Russian Army officer who served from 1983 in the territory of Estonia. After the restoration of the 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).
The circumstances of the applicant's abode in Estonia and the Estonian authorities' refusal to extend his residence permit as well as a summary of the relevant norms of domestic and international law have been provided in the decision mentioned above.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Order to leave the country and the applicant's detention in a deportation centre
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. The applicant challenged the order before the Tallinn Administrative Court (halduskohus) which, on 24 October 2003, dismissed the complaint.
On 29 October 2003 the applicant was arrested. On 30 October 2003 the Tallinn City Court (linnakohus) imposed on him a fine for illegally residing in Estonia.
On 31 October 2003 the Tallinn Administrative Court decided, upon a request by the police, that the 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 no valid travel document.
From 2 to 4 November 2003 the applicant was hospitalised as he had had headaches and had lost consciousness for a moment.
Since 4 November 2003 he has been detained in the deportation centre in Harku, Harju County. His detention has been extended, upon requests of the Board, 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 (ringkonnakohus) and, thereafter, to the Supreme Court. He did so in some but not in all cases. He challenged the Tallinn Administrative Court's rulings of 30 December 2003, 30 December 2004, 2 May 2005 and 16 February 2007. In each occasion the higher courts dismissed the 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 allegedly lost his Russian passport and despite the requests by the Board to the Embassy of the Russian Federation in Estonia the latter had not been able to issue a new travel document to the applicant because of his refusal to fill out the necessary application forms. The Board was ready to issue a temporary travel document to the applicant but according to the Embassy of the Russian Federation 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 to avoid a situation where an expulsion order could not be executed merely because of the unwillingness of the applicant. They were of the opinion that the length of the applicant's detention in the deportation centre depended on him alone.
The courts rejected the applicant's complaints concerning the conditions in the detention centre, finding that they could not be dealt with in the administrative court proceedings concerning the Board's requests to prolong the applicant's detention in the centre. The courts explained him that he could lodge complaints in this regard with an administrative court in separate court proceedings.
On 12 June 2007 – in one of the last decisions whereby the Tallinn Administrative Court extended the applicant's detention – the court noted that the applicant's detention, although lawful in itself, would soon become unconstitutional because of its length. Nevertheless, the court extended his detention, considering that on 1 June 2007 an Agreement between the European Community and the Russian Federation on readmission had entered into force and that the Russian authorities had not yet decided on the readmission application on the grounds and in the procedure under the Agreement.
On 13 July 2007 the Tallinn Court of Appeal dismissed the applicant's appeal. He has appealed against the appellate court's decision to the Supreme Court.
On 9 August 2007 the Tallinn Administrative Court extended the applicant's detention, noting again that it could become disproportionate in the near future.
2. The applicant's request for a residence permit
On 12 April 2005 the applicant sought permission from the Board to be allowed, by way of exception, to lodge his application for a residence permit with the Board directly instead of submitting it to a foreign representation of Estonia.
By letter of 26 April 2005 the Board informed the applicant of its refusal to grant the permission and on 5 July 2005 it dismissed the applicant's request for review. The Board based its decision on section 11-1(2)(6) of the Aliens Act (Välismaalaste seadus) and on section 11(4) and (6) of a Government Regulation enacted by the Government on 26 November 2002. According to these provisions, by way of exception, the Board could grant a permission to lodge an application for residence permit with the Board if the person concerned was unable to apply for a residence permit at a foreign representation of Estonia for good reasons. If the person concerned had a possibility to lodge the application at a foreign representation, the Board had to reject the application without examining it on the merits. The Board found that it was open to the applicant to apply for a Russian travel document, to leave the country and to lodge an application for a residence permit at an Estonian foreign representation on general grounds.
The applicant challenged the Board's refusal with the Tallinn Administrative Court, insisting that he had good reasons for lodging an application with the Board directly. He argued that he was a long-term resident of Estonia and that the refusal to grant him residence permit violated his right to family life.
By a judgment of 3 February 2006 the Tallinn Administrative Court dismissed the applicant's complaint. The court shared the Board's opinion that two proceedings had to be distinguished: firstly, the proceedings concerning the applicant's request to be granted permission to lodge his application for a residence permit with the Board directly, and, secondly, the proceedings related to his application for a residence permit. The first proceedings – which were at issue in the administrative court proceedings at hand – dealt with the question of whether there existed good reasons for lodging the application with the Board directly instead of doing so through an Estonian foreign representation. However, as the result of these proceedings did not predetermine the result of the proceedings concerning the substantial issue of whether a person would be granted a residence permit or not, the court considered the applicant's submissions concerning his long-term resident status and alleged violation of his right to family life mostly irrelevant. As to the first proceedings, the court found that no good reasons existed for making an exception in respect of the applicant to the general requirement that an application for a residence permit had to be lodged with an Estonian foreign representation. The court was of the opinion that only objective circumstances which had emerged independently of the person concerned could serve as good reasons for lodging the application with the Board. However, the applicant's refusal to apply for a Russian travel document which would enable to enforce the order of 21 July 2003 to leave the country did not constitute objective circumstances but rather showed his unwillingness to normalise his situation and to comply with the applicable legislation and judgments.
On 6 November 2006 the Tallinn Court of Appeal upheld the Administrative Court's judgment. It noted that the possibility to lodge, by way of exception, one's application for a residence permit with the Board directly was not meant to give aliens an opportunity to stay unlawfully in Estonia. The court considered that the applicant's abode in Estonia had been unlawful as he had failed to comply with the order to leave the country. His stay in the deportation centre could not be considered as circumstances that did not enable him to lodge the application with an Estonian foreign representation as his stay in the centre had been caused by his refusal to apply to the Embassy of the Russian Federation for a travel document which would enable him to return to his country of nationality.
The Court of Appeal also noted that the applicant's arguments concerning a violation of his right to family life were irrelevant in the present case as they had already been dealt with in the proceedings where he had been refused residence permit.
On 18 January 2007 the Supreme Court refused the applicant leave to appeal.
B. Relevant domestic law
Section 18(1) of the Obligation to Leave and Prohibition on Entry Act (Väljasõidukohustuse ja sissesõidukeelu seadus) stipulated that expulsion of an alien had to be completed within forty-eight hours after 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 the expulsion but for not longer than two months (section 23(1)). This term could be extended at the request by the Citizenship and Migration Board by up to two months at a time (section 25).
Under section 26-4(1) of the Obligation to Leave and Prohibition on Entry Act, the person to be expelled was required to co-operate in the organisation of the expulsion, including co-operation in obtaining documents necessary for expulsion.
According to section 11-1(1) of the Aliens Act (Välismaalaste seadus), an alien could submit an application for a temporary residence permit to a representation of Estonia which, after identification of the applicant, had to forward it to the Citizenship and Migration Board for processing. Section 11-1(2) listed the instances in which a temporary residence permit could be applied for at the Board. These included cases where the Board had granted permission for that, by way of exception, on the condition that the alien was unable to apply for a residence permit at a representation of Estonia for good reasons (section 11-1(2)(6)).
COMPLAINTS
THE LAW
He also contended that his groundless detention for an extended period in the deportation centre violated his right to private and family life guaranteed under Article 8. Moreover, it constituted in his view an unlawful punishment and amounted to torture in violation of Article 3 of the Convention.
Furthermore, the applicant argued that the authorities based his arrest and detention in the deportation centre only on domestic legislation and ignored the provisions of the agreement concluded between Estonia and Russia. Thereby, Articles 6 and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention had been violated.
The Court finds that the issue of the applicant's detention falls to be examined under Article 5 of the Convention and there is no need to deal with it under the remaining provisions invoked by the applicant. Article 5, in so far as relevant, reads as follows:
“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.
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
...”
a) The Court notes at the outset that the applicant – although invoking Article 5 § 4 – did not contend that he was denied the opportunity to have the lawfulness of his detention decided by a national court. Accordingly, the Court does not need to examine the application under this provision.
b) As regards Article 5 § 3, the Court recalls that this provision refers to only one form of deprivation of liberty, which is mentioned in paragraph 1 (c) of Article 5 and which is “effected for the purpose of bringing [a person] before the competent legal authority on reasonable suspicion of having committed an offence or fleeing after having done so”. The Court is satisfied that the domestic authorities ordered the applicant's detention not for the reasons set out in paragraph 1 (c) but on grounds mentioned in paragraph 1 (f) of Article 5. Therefore, Article 5 § 3 is inapplicable in the present case (see, for instance, Bah v. the Netherlands (dec.), no. 22842/04, 20 September 2007, with further references). Accordingly, to the extent that the applicant relies on Article 5 § 3, the Court concludes that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
c) In so far as the application relates to Article 5 § 1 (f), the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court notes that the applicant has raised these issues before the administrative courts in the proceedings concerning the prolongation of his detention. However, the administrative courts rejected these complaints as they could not be dealt with in the administrative court proceedings at hand. The courts explained to the applicant that it was open for him to lodge these complaints with an administrative court in separate court proceedings. However, there is no indication that the applicant has done so. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court finds that in so far as the applicant can be understood to complain about the authorities' refusal to extend his residence permit in 2000 and the subsequent administrative court proceedings which came to an end with the Supreme Court's judgment of 17 April 2003, the complaint is essentially the same as the applicant's complaints that were made in his previous application (see Mikolenko, cited above). It follows that this part of the complaint must be rejected under Article 35 § 2 (b) and Article 35 § 4 of the Convention.
In so far as the complaints can be understood to concern the measures taken by the authorities as a consequence of the refusal to extend the residence permit, the Court finds that these measures were inextricably linked to the refusal. Accordingly, they do not call for a new examination as they are manifestly ill-founded for the reasons set out in the decision concerning the applicant's previous application (see Mikolenko, cited above) and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
To the extent that the applicant can be understood to complain about the fact that he was refused a residence permit in 2005, the Court finds that it is not necessary to determine whether this part of the application is essentially the same as the applicant's previous application, as this complaint is in any event manifestly ill-founded for the following reasons. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens (see Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; and Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 IX). The Court notes that the authorities' refusal to examine on its merits the applicant's application – who was at that time unlawfully in Estonia – had a legal basis and bears no sign of arbitrariness. Moreover, it was open to the applicant to apply for a residence permit before an Estonian foreign representation under the domestic law. Accordingly, it cannot be concluded that the mere fact that the Board did not grant him leave to lodge his application for residence permit with the Board directly – instead of doing so through a foreign representation – constituted a disproportionate interference with the applicant's rights, if any, under Article 8. 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.
To the extent that the detention regime might be concerned, the Court notes that domestic remedies have not been exhausted, since the applicant has failed to raise this complaint in an appeal to an administrative court, lodged in accordance with the applicable procedural requirements. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Finally, the Court has examined the applicant's complaint concerning a violation of Article 14. 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 there is nothing to indicate that the authorities' refusal to grant the applicant a residence permit or any other measures taken in respect of him were based on his belonging to a national minority. It follows that also this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“Collective expulsion of aliens is prohibited.”
The Court observes that the applicant received individual decisions by which he was refused a residence permit and ordered to leave the country. His complaints were individually examined by the administrative courts and it was open to him to present his arguments. Accordingly, the Court finds no indication of a collective expulsion within the meaning of Article 4 of Protocol No. 4 to the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint concerning his lengthy detention in the Harku deportation centre;
Declares the remainder of the application inadmissible.
Claudia
Westerdiek Peer Lorenzen
Registrar President