ECtHR - Mikolenko v. Estonia, Application no. 10664/05, 8 October 2009

Admissibility

The Court refused both allegations of inadmissibility raised by the Governments regarding an alleged abuse of the right of petition and the non-exhaustion of domestic remedies.

1) As to the former objection, the Court dismissed the Government’s argument that the applicant had not acted in good faith by submitting to the Court selective information concerning  his  expulsion  proceedings. 

2) As to the objection of non-exhaustion of domestic remedies, the Court observed that the Applicant had appealed against the detention decisions so as to give the contracting State the opportunity of preventing or putting right the alleged violation against him. Additionally, the Court held that it was not decisive whether the applicant had appealed against the initial decision as at that time the compatibility of the length of his detention with art. 5(1)(f) of the Convention could not possibly have arisen.

Merits

1) The Court maintained that the applicant’s detention, at least initially, fell within the scope of Article 5 § 1 (f).

Indeed, the applicant failed to  leave within the time-limit and his immediate expulsion was impossible because of  lack  of  travel  documents. In addition, an  administrative  court  authorised  his placement in the deportation centre for the time necessary to enforce his expulsion.

2) The Court held that there  had been a violation  Article  5  §  1  of  the Convention since the grounds for the applicant’s detention did not remain valid for the whole period of his detention  due  to  the  lack  of  a  realistic  prospect  of  his  expulsion  and  the domestic authorities’ failure to conduct the proceedings with due diligence.

Indeed, the Court firstly maintained that the deprivation of liberty under Article 5 § 1 (f), is justified only as long as deportation (or extradition) is in progress and pursued with due diligence (inter alia A. and Others v. the United Kingdom, no. 3455/05; Quinn  v.  France,  22  March  1995). In this respect, the Court noted that it had not been provided with  any  information  on  whether  any  steps  with  a  view  to  the  applicant’s deportation were taken from August 2004 to March 2006. This leaded the Court to conclude that in the present case the proceedings had not been conducted with due diligence after March 2006, so that they ceased to justify a deprivation of liberty under art. 5 § 1 (f).

Secondly, the Court affirmed that not only does art. 5§ 1 (f) require the deprivation of liberty to be lawful according to national legislation, but it also requires the detention to not be arbitrary, a notion that is independent from the domestic legality of the measure (Saadi  v.  the  United Kingdom [GC], no. 13229/03). To  avoid  being  branded  as  arbitrary,  detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and  conditions  of  detention  should  be  appropriate;  and  the  length  of  the detention  should  not  exceed  that  reasonably  required  for  the  purpose pursued (Saadi; A. and Others v. the United Kingdom).

As  to  the case under analysis, the Court observed that the applicant had been  detained  for  more  than  three years  and  eleven  months and noted that the Estonian authorities must have been aware early on that attempts to acquire the necessary documents for the applicant’s deportation were bound to fail given the factual circumstances of the case. Therefore the Court concluded that the applicant’s prolonged detention  could not be said to have been enforced with a view to his deportation, which was not, in fact, feasible. Accordingly, the Court clarified that the applicant’s detention for such a long time could not be justified by an expected change in the legal framework, namely the entry into force of the EU-Russia readmission agreement on  1  June  2007. Additionally, the Court highlighted that the  authorities, in  the absence of any immediate prospect of his expulsion, had  at  their  disposal  alternative measures  other than  the  applicant’s  protracted  detention, namely reporting obligations, evidently applicable and in use in Estonia.