Challenging the lawfulness of detention
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE 37. Section 5 of the Obligation to Leave and Prohibition of Entry Act ( Väljasõidukohustuse ja sissesõidukeelu seadus ), as in force at the material time, defined expulsion as the enforcement of an obligation to leave in the cases and pursuant to the procedure provided by law. 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. 38. On 1 June 2007 an Agreement between the European Community and the Russian Federation on readmission entered into force. The aim of the agreement is to strengthen the parties ’ co-operation in order to combat illegal immigration more effectively. Article 2 of the agreement, concerning readmission of Russian nationals, reads as follows: “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.” 39. In a judgment of 13 November 200 6, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-45 -0 6 ) found that the assessment of the feasibility of expulsion could not be based on the fact that the person concerned did not wish to leave the country and wanted to stay there. An interpretation to the contrary would have been in conflict with the nature of expulsion as a legal concept. 40. In a judgment of 3 April 200 8, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-96 -0 7 ) noted that both the Board ’ s request and the court ’ s authorisation for detention had to be based on the law in force at the time of the court proceedings. It pointed out, however, that since expulsion proceedings constituted a dynamic process, due attention had to be given to the prospective changes in legal circumstances which would affect expulsion at the time when the person concerned was expected to be expelled. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 41. The applicant complained that his right to liberty had been violated by his protracted detention in the deportation centre. He relied on Article 5 § 1 of the Convention which, 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.” 42. The Government contested that argument. A. Admissibility 1. Abuse of the right of petition 43. The Government considered that the applicant had not acted in good faith but had abused his right of petition as he had submitted to the Court information concerning his expulsion proceedings only selectively. They noted, in particular, that he had failed to inform the Court about his alleged loss of his passport and his further attempts to hinder the completion of the expulsion proceedings, including his refusal to fill out the necessary forms for identity documents to be issued. He had been aware of the fact that the Russian authorities had not accepted the solution suggested by the Estonian authorities that the latter issue the applicant a temporary travel document. 44. The applicant disagreed. 45. The Court observes that all the elements referred to by the Government were mentioned in the copies of the domestic decisions submitted by the applicant and therefore the Court was sufficiently informed about the relevant circumstances of the case at the time when it took its decision to give notice of the application to the Government (see the partial decision on admissibility of 8 January 2008 ). Therefore, this objection is dismissed. 2. Non-exhaustion of domestic remedies 46. The Government argued that the applicant had not exhausted domestic remedies with regard to the issue of his deprivation of liberty or the legality of his continued detention. In respect of the deprivation of liberty, the Government noted that the applicant had not appealed against the Tallinn Administrative Court ’ s decision of 31 October 2003 whereby his placement in the deportation centre had been authorised. In so far as the applicant ’ s subsequent stay in the deportation centre was concerned, the Government emphasised that the domestic courts, when authorising the extension of his detention in the deportation centre, had dealt with the issue only in the context of extending the stay. If the applicant had believed that the length of his detention had been unlawful, he should have filed a separate claim for damages. 47. The applicant submitted that he had appealed against the Administrative Court ’ s decision of 31 October 2003 but since his detention had been extended by the Administrative Court on 30 December 2003, the appeal had become void of substance and he had withdrawn it. 48. The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V). The Court observes that after the initial decision whereby the applicant ’ s detention was authorised by the Tallinn Administrative Court, his continued detention was subsequently authorised bimonthly by the same court. The Court notes that in the latter proceedings he made use of his right to appeal to the court of appeal and to the Supreme Court on several occasions. Moreover, the applicant was released from the deportation centre after the Tallinn Administrative Court had refused to extend his detention on 8 October 2007. Thus, the Court considers that the domestic authorities have had an opportunity of putting right the alleged violation of the applicant ’ s right to liberty. In the context of the present case it is not of decisive importance whether or not the applicant appealed against the initial decision as at that time the issue of the compatibility of the length of his detention with Article 5 § 1 (f) could not possibly have arisen. As to the question whether the applicant should have filed a separate claim for damages, the Court does not consider that he would have had any prospect of success in such proceedings as his detention had been authorised by administrative courts which had considered it lawful. Therefore, this objection is also dismissed. 3. Conclusion as to admissibility 49. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The submissions of the parties ( a ) The applicant 50. The applicant argued that he had not been detained for the purpose of his deportation and considered that the real reason for his detention had been to force him to co - operate and apply for a Russian passport. He emphasised, however, that deportation meant execution of the obligation to leave by the force of the State, and that the authorities had had no reason to count on his co-operation as in his opinion his stay in Estonia had a legal basis. The extension of his detention – whereby the domestic courts referred to his failure to fulfil his obligation to co-operate with the authorities – had actually become a form of punishment and a means of breaking his will. Even assuming that the authorities had initially pursued a legitimate aim, they had later wished to force him to sign the documents and thereafter waited for the changes in international law to take effect. 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 51. The Government maintained that the applicant ’ s detention had been lawful under domestic law. The only purpose of his detention had been his expulsion from Estonia; this was demonstrated by the pertinent court decisions as well as by the other steps taken by the authorities. The applicant ’ s refusal to co-operate had only extended the period of his detention. The Government pointed out that the feasibility of expulsion could not be assessed on the basis of whether the person concerned wished to leave the country or not. They also emphasised that in 2006 and 2007 the Estonian authorities could legitimately presume that after the entry into force of the EU-Russia readmission agreement on 1 June 2007 there would be an additional basis for the applicant ’ s expulsion. The Estonian authorities could not have foreseen that the Russian party would not comply with its obligations under that agreement. 52. The Government argued that periodic judicial review of the applicant ’ s detention had constituted a sufficient guarantee against arbitrariness. Moreover, it had been repeatedly explained to the applicant what he needed to do in order to be released. At the same time, international and diplomatic channels had been used to find other possibilities for the applicant ’ s expulsion. 53. The Government insisted that the applicant ’ s own behaviour had contributed to a significant extent to the length of his detention. They pointed out that the applicant, claiming that he had lost his passport, had shown no readiness to apply for a new identity or travel document; nor had the Russian authorities been ready to issue him such a document in the absence of his application or to accept a temporary travel document the Estonian authorities could have issued. The Government pointed to the efforts made by the Estonian authorities through diplomatic channels to find a solution to the situation, and to the fact that they had presumed that the applicant ’ s expulsion would prove easier after the entry into force of the EU-Russia readmission agreement. They emphasised that when it had become clear that the applicant ’ s expulsion was not realistically possible at the time, he had been released from the deportation centre. 54. In conclusion, considering the time-consuming nature of communication between states and the unwillingness of the receiving State to co-operate, as well as the applicant ’ s own intentional failure to present an identity document and refusal to apply for one, plus the fact that he had enjoyed completely appropriate conditions throughout, his stay in the deportation centre had been in conformity with Article 5 § 1 (f). 2. The third-party intervener ’ s arguments 55. The Russian Government agreed in substance with the applicant ’ s arguments. They considered that the applicant ’ s protracted detention had been in violation of Article 5 § 1. They noted that the Estonian authorities had found out shortly after the applicant ’ s arrest that it was impossible to deport him without travel documents and that such documents could not be obtained without his co - operation. The applicant ’ s detention had been aimed at breaking his will and forcing him to sign documents needed for him to leave the country. In the opinion of the Russian Government the applicant ’ s conduct could not have justified such a long period of detention. They pointed out that after his release less severe measures, such as police control, had been applied and there had been no reason why such measures could not have been applied before. 3. The Court ’ s assessment (a) Whether the applicant ’ s detention fell within the scope of Article 5 § 1 (f) 56. The Court reiterates that subparagraphs (a) to (f) of Article 5 § 1 of the Convention contain an exhaustive list of permissible grounds of deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008 ‑ ... ). 57. In the present case, the Government contended that the applicant was deprived of his liberty with a view to expulsion and that his detention had been permissible under subparagraph (f) of Article 5 § 1. The applicant and the Russian Government contested that argument, considering that the real purpose of his detention had been to break his will and to force him to co - operate. They were of the opinion that, even assuming that his detention had initially been aimed at his expulsion, this had soon proved impossible and the detention had become a punitive measure. 58. The Court observes that the applicant was refused an extension of his residence permit, was ordered to leave the country and was warned that his failure to leave would result in his expulsion. As he failed to leave within the time-limit and his immediate expulsion was impossible because of lack of travel documents, an administrative court authorised his placement in the deportation centre on the basis of the Obligation to Leave and Prohibition of Entry Act. Thus, the Court has no reason to doubt that the applicant ’ s detention, at least initially, fell within the scope of Article 5 § 1 (f). (b) Whether the applicant ’ s detention was arbitrary 59. The Court reiterates that Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, 19 February 2009, and Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996 ‑ V). 60. The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention ( see Saadi, cited above, § 67). 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 (see A. and Others v. the United Kingdom, cited above, § 164, and, mutatis mutandis, Saadi, cited above, § 74). 61. As concerns the compliance of the applicant ’ s detention with national law in the present case, the Court observes that the domestic courts, in extending his detention every two months, found it lawful. The Court further observes that sections 23 and 25 of the Obligation to Leave and Prohibition of Entry Act, relied on by the domestic authorities, provided a legal basis for such detention. 62. However, as noted above, compliance with domestic law is not in itself sufficient to establish lack of arbitrariness and further elements, referred to in paragraph 60 above, must be examined in this context. One of these elements is the length of the detention, which should not exceed that reasonably required for the purpose pursued. 63. The court reiterates that deprivation of liberty under Article 5 § 1 (f) is justified only for as long as deportation proceedings are being conducted. It follows that if such proceedings are not being prosecuted with due diligence, the detention will cease to be justified under this subparagraph (see, mutatis mutandis, Quinn v. France, 22 March 1995, § 48, Series A no. 311). 64. The Court observes that the applicant ’ s detention with a view to expulsion was extraordinarily long. He was detained for more than three years and eleven months. While in the beginning of his detention the domestic authorities took steps to have documents issued to him, it must have become clear quite soon that these attempts were bound to fail as the applicant refused to co - operate 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 the Estonian authorities were ready to issue. Indeed, the Russian authorities had made their position clear in both respects by as early as June 2004. Thereafter, although the Estonian authorities took repeated steps to solve the situation, there were also considerable periods of inactivity. In particular, the Court has been provided with no information on whether any steps with a view to the applicant ’ s deportation were taken from August 2004 to March 2006 (see paragraphs 18 to 33 above ). 65. What is more, the applicant ’ s expulsion had become virtually impossible as for all practical purposes it required his co - operation, which he was not willing to give. While it is true that States enjoy an “undeniable sovereign right to control aliens ’ entry into and residence in their territory” (see, for example, Saadi, cited above, § 64, with further references), the aliens ’ detention in this context is nevertheless only permissible under Article 5 § 1 (f) if action is being taken with a view to their deportation. The Court considers that in the present case the applicant ’ s further detention cannot be said to have been effected with a view to his deportation as this was no longer feasible. 66. It is true that at some point the Estonian authorities could legitimately have expected that the applicant could be removed on the basis of the EU-Russia readmission agreement once it entered into force, as under this agreement the Russian authorities were required to issue travel documents to persons to be readmitted irrespective of their will. However, the agreement entered into force only on 1 June 2007, which was 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 were adequate could not be justified by an expected change in the legal circumstances. 67. The Court also notes that after the applicant ’ s release on 9 October 2007 he was informed that he still had to comply with the order to leave. He was obliged to report to the Board at regular intervals (see paragraph 35 above ). Thus, the authorities 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. 68. The foregoing considerations are sufficient to enable the Court to conclude that the grounds for the applicant ’ s detention – action taken with a view to his deportation – 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. There has accordingly been a violation of Article 5 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “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.” A. Damage 70. The applicant claimed 3 0,000 euros (EUR) in respect of non-pecuniary damage. 71. The Government reiterated that the applicant had not exhausted domestic remedies since he had failed to lodge a complaint and claim damages before an administrative court. Alternatively, the Government argued that the applicant ’ s release from detention had constituted sufficient redress. Should the Court nevertheless find that the applicant had sustained non-pecuniary damage, the Government requested the Court to award him a reasonable sum. 72. The Court notes that the argument concerning the non-exhaustion of domestic remedies has been dismissed (see paragraph 48 above). It finds that the applicant has suffered non-pecuniary damage as a result of the violations found. Deciding on an equitable basis, and having regard to the specific circumstances of the present case and to the applicant ’ s behaviour in particular, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 73. The applicant also claimed 40,731.30 kroons (EEK – approximately corresponding to EUR 2,603 ) for the costs and expenses incurred before the domestic courts and the Court. 74. The Government pointed out that most of the invoices submitted by the applicant concerned costs not related to the present case. Only translation costs in the amount of EEK 3,260.40 (EUR 208) were related to the proceedings before the Court but this sum had in fact not been paid by the applicant. 75. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court notes that in the present case only costs in the amount of EUR 208 were related to this case either at the domestic level or before the Court. Regard being had to the information in its possession and the above criteria, the Court awards the applicant EUR 208 in respect of costs and expenses, plus any tax that may be chargeable to the applicant, and dismisses the remainder of his claims under this head. C. Default interest 76. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention, finding that the grounds for the applicant’s detention – action taken with a view to his deportation – 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.