(Application no. 10664/05)
8 October 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Mikolenko v. Estonia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 8 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
B. The applicant's detention
C. Measures taken by the authorities for the applicant's removal
1. Measures taken by the Board
2. Measures taken by the Estonian Ministry of Foreign Affairs
D. Subsequent developments
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
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.
“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.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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.”
1. Abuse of the right of petition
2. Non-exhaustion of domestic remedies
3. Conclusion as to admissibility
1. The submissions of the parties
(a) The applicant
The applicant pointed out that the exceptions to the right to liberty, listed in paragraph 1 of Article 5, had to be interpreted narrowly and that detention ceased to be justified under subparagraph (f) if the deportation proceedings were not conducted with due diligence.
(b) The Government
2. The third-party intervener's arguments
3. The Court's assessment
(a) Whether the applicant's detention fell within the scope of Article 5 § 1 (f)
(b) Whether the applicant's detention was arbitrary
There has accordingly been a violation of Article 5 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Estonian kroons at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR 208 (two hundred and eight euros) in respect of costs and expenses;
(iii) any tax that may be chargeable to him on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Maruste is annexed to this judgment.
DISSENTING OPINION OF JUDGE MARUSTE