Information Note on the Court’s case-law No. 123
October 2009
Mikolenko v. Estonia - 10664/05
Judgment 8.10.2009 [Section V]
Article 5
Article 5-1-f
Expulsion
Lengthy detention (almost four years) of an alien for refusing to comply with an expulsion order: violation
Facts – The applicant is a former Soviet and Russian Army officer who served in the territory of Estonia. After the restoration of Estonian independence, he was refused an extension of his residence permit in that country. In 2003 the Citizenship and Migration Board ordered him to leave the country. As he failed to leave within the stipulated time-limit and his immediate expulsion was impossible because he had no travel documents, an administrative court authorised his placement in a deportation centre on the basis of the Obligation to Leave and Prohibition of Entry Act. His detention was extended once every two months. The domestic courts found that the applicant’s detention was lawful and appropriate to secure his cooperation and that the length of his detention in the deportation centre depended on him alone. In October 2007 an 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. The applicant was released from the deportation centre the next day.
Law – Article 5 § 1: The applicant’s detention with a view to expulsion, at least initially, fell within the scope of Article 5 § 1 (f). It had been extraordinarily long: more than three years and eleven months. While the authorities had taken steps to have documents issued to him, it must have become clear quite soon that their attempts were bound to fail as the applicant refused to cooperate and the Russian authorities were not prepared to issue him documents in the absence of his signed application, or to accept a temporary travel document. Indeed, the Russian authorities had made their position clear in both respects by as early as June 2004. Thereafter, although the Estonian authorities had taken repeated steps to remedy the situation, there had also been considerable periods of inactivity. Moreover, the applicant’s expulsion had become virtually impossible as for all practical purposes it required his cooperation, which he had not been willing to give. His further detention could not therefore be said to have been effected with a view to his deportation as this was no longer feasible. It was true that at some point the Estonian authorities could legitimately have expected that the applicant would be removed on the basis of the EU-Russia readmission agreement, which required the Russian authorities to issue travel documents to persons not willing to be readmitted voluntarily. However, the agreement had entered into force only in June 2007, about three years and seven months after the applicant was placed in detention. In the Court’s opinion, the applicant’s detention for such a long time even if the conditions of detention as such had been adequate could not be justified by an expected change in the legal circumstances. After the applicant’s release he was informed that he still had to comply with the order to leave and was required to report to the Citizenship and Migration Board at regular intervals. Thus, the authorities had in fact had at their disposal measures other than the applicant’s protracted detention in the deportation centre in the absence of any immediate prospect of his expulsion. The grounds for the applicant’s detention had not therefore remained valid for the whole period of his detention owing to the lack of a realistic prospect of his expulsion and the domestic authorities’ failure to conduct the proceedings with due diligence.
Conclusion: violation (six votes to one).
Article 41: EUR 2,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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