AS TO THE ADMISSIBILITY OF
Application no. 16944/03
by Nikolai, Ljubov and Oleg MIKOLENKO
The European Court of Human Rights (Fourth Section), sitting on 5 January 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mr J. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 28 May 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Nikolai Mikolenko, Ms Ljubov Mikolenko and their son Mr Oleg Mikolenko, are Russian nationals, who were born in 1954, 1955 and 1985, respectively, and live in Estonia. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Mr Nikolai Mikolenko, the first applicant, was born in Ukraine. At the time the application was lodged with the Court, he was married to Ms Ljubov Mikolenko, the second applicant, who was also born in Ukraine. Their son, Mr Oleg Mikolenko, the third applicant, was born in Estonia. The first and the second applicant have also another son, Bogdan, who was born in 1980. He has a permanent residence permit in Estonia.
The first applicant served in the Soviet and Russian armed forces from 1975 to 1994, when he retired as a warrant officer. From 1977 to 1983 he served in the territory of the German Democratic Republic. In 1983 he was transferred to military unit no. 12129 in the Baltic military district. The first and the second applicants have been living in Estonia since then.
Since 1989 the applicants have been registered as inhabitants in the apartment at Kolde puiestee 84-1 in Tallinn.
On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory.
On 4 August 1994 the first applicant was assigned to the reserve forces by the decree of the commander of the military unit no. 12129. According to the transcript of the decree, he was discharged from the military unit and excluded from the provision of all types of supplies as of 18 October 1994.
As from 1994 the first applicant worked as a manager in a private company. The second applicant has been working as a nurse in a kindergarten since 1983.
On 31 March 1995 the first applicant submitted an application for a residence permit in Estonia. At that time his parents were living in Ukraine.
The first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America (USA). On 9 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he would receive housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it.
On 10 April 1995 the second applicant privatised (purchased on favourable conditions from the municipality) the apartment at Kolde puiestee 84-1 in Tallinn. According to the data in the land register, as at 6 December 2004, this apartment was still in the ownership of the second applicant.
In the form filled out on the basis of the interview conducted with the first applicant by a staff of the aid programme on 18 April 1995 concerning the grounds of participation in the programme and the amount of financing by the bank, it was noted that the first applicant was entitled to enrol in the programme. According to the document, in reply to the question how he would describe his and his family’s feelings in connection with leaving the Baltic countries, he chose the following answer from among the multiple choices: “we are very happy about the departure”. In reply to the question why he had chosen St. Petersburg as the possible new residence, he answered: “relatives”. To the question what he would miss most when moving to the new place, he replied colleagues of his military unit.
On 14 June 1995 the first applicant, holder of the certificate SP-223, issued by the aid programme, concluded a purchase agreement for an apartment at Savushkin Street 134-3-5 with the St. Petersburg City Construction Authority. According to the agreement, the price of the apartment was 27,540 US dollars (USD), of which USD 25,000 was to be paid by the United States Agency for International Development and USD 2,540 by the first applicant.
On 15 June 1995 the apartment purchased by the first applicant was registered as his property by the relevant bureau of the St. Petersburg City Government. According to the information from the State Registry of the Russian Federation, submitted by the respondent Government in the context of the proceedings concerning the applicants’ legal aid request, as at 3 May 2005 the apartment was still in the ownership of the first applicant.
On 11 July 1996 the first and the second applicants were granted temporary residence permits in Estonia for two years. The third applicant received a temporary residence permit on 25 November 1996. The date of its expiry was the same as the expiry date of the residence permits of his parents, i.e. 11 July 1998.
On 12 July 1998 the temporary residence permits of the applicants were extended until 12 July 1999. In July 1999 their residence permits were further extended until 1 January 2000.
On 1 October 1999 an amendment to the Foreigners’ Act (Välismaalaste seadus) entered into force so as to exclude the possibility of issuing or extending residence permits for persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme.
On 8 May and 14 June 2000 the Minister of the Interior issued orders by which the applicants were refused extensions of their residence permits. The refusals were based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired from there. This ground applied also to the second and the third applicants as family members (spouse and minor child) of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme.
The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus), which, by a judgment of 16 November 2001, dismissed the complaint. It observed that the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme. According to the Foreigners’ Act such persons could not be granted extensions of residence permits.
In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They claimed that they should have been exceptionally granted residence permits under section 12(5) of the Foreigners’ Act.
On 10 October 2002 the appeal was heard at the Tallinn Court of Appeal. The applicants did not appear at the hearing. On the day before the hearing the first applicant had submitted to the Court of Appeal a request to adjourn the hearing due to his deteriorated health condition. The Court of Appeal, nevertheless, held the hearing. It found that the first applicant had not provided a medical certificate and that he had failed to specify the reasons why he had been hindered from taking part in the hearing. The second and third applicants had not requested that the hearing be adjourned.
By a judgment of 25 October 2002 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. It noted that the first applicant had served in the Russian army at the time the treaty concerning withdrawal of the Russian armed forces from Estonia had been concluded (26 July 1994). Accordingly, he was subject to removal, together with his family members, under the treaty. The Court of Appeal also found that it was established that the applicants had received accommodation abroad within the framework of an international aid programme and that they had committed themselves to leaving Estonia.
In an appeal to the Supreme Court (Riigikohus) the applicants complained that their right to take part in the hearing at the Court of Appeal had been violated. They maintained that their commitment to leave the country had not been made to the Estonian authorities. They also complained about the retroactive application of the Foreigners’ Act and that they had been discriminated against, since several persons who had taken part in the aid programme had, in fact, been granted extensions of residence permits.
On 17 April 2003 the Supreme Court upheld the judgments in substance, with modifications to their reasoning. The Supreme Court rejected the complaint concerning the inability of the applicants to take part in the hearing at the Court of Appeal. It noted that the applicants’ requests to adjourn the hearing had been granted repeatedly and found that, according to the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), the Court of Appeal could have rejected the appeal on the grounds of their failure to appear.
With respect to the substance of the appeal, the Supreme Court found that the interference with the applicants’ right to family life had been proportionate to the aim pursued by the State – to ensure that the professional servicemen of the former Soviet army be withdrawn from Estonia. The Supreme Court deemed the fact that Estonia had not been a party of the international aid programme irrelevant to the legitimacy of the legislation prohibiting the extension of residence permits for persons who had benefited from the programme.
On 6 June 2003 the third applicant was granted a temporary residence permit in Estonia with validity until 5 June 2008, since he had attained the age of majority and thus could no longer be considered as a family member of a retired officer of the armed forces.
On 18 June 2003 the first and the second applicants dissolved their marriage.
On 21 July 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet – hereinafter “the Board”) ordered the first applicant to leave the country on 17 September 2003 at the latest. On 29 July 2003 the first applicant lodged a complaint with the Tallinn Administrative Court requesting that the order be invalidated.
On 11 August 2003 the Board refused to consider the second applicant’s request for a residence permit on an exceptional basis. The Board noted that, according to the applicable legislation, a request for a residence permit had to be submitted, as a rule, to an Estonian foreign representation. It established no circumstances which prevented the second applicant from doing so.
On an unspecified date in 2003 the first applicant submitted to the Supreme Court a request to reopen the proceedings (teistmisavaldus) and to quash the previous administrative court judgments. He claimed that he was a subject of the Estonian-Russian agreement concerning the social guarantees to retired military personnel of the Russian armed forces in Estonia and, therefore, he and his family members could have lawfully been refused an extension of the residence permit only in the event that it had been established that he posed a threat to the national security of Estonia. On 10 September 2003 the Supreme Court refused the request.
On 24 October 2003 the Tallinn Administrative Court dismissed the first applicant’s request to invalidate the 21 July 2003 order of the Board. He appealed against the judgment to the Tallinn Court of Appeal. The Court has not been furnished with information concerning the outcome of the appeal.
On 29 October 2003 the police arrested the first applicant for illegally residing in Estonia. On 30 October 2003 the Tallinn City Court (Tallinna Linnakohus) imposed on him a fine of 1200 kroons (77 euros). Apparently he was released after the hearing, having been kept in detention for about 24 hours.
On 31 October 2003 the Tallinn Administrative Court decided, upon a request by the police, that the first 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 not presented a valid identification document (the applicant could not remember where his valid passport was).
According to a medical certificate submitted to the Court, the first applicant was hospitalised between 2 and 4 November 2003. He has been detained in the deportation centre since November 2003. His detention has been extended by the Tallinn Administrative Court once every two months. The Board has been, unsuccessfully, attempting to expel him to Russia. On 3 March 2005 the first and second applicants lodged new complaints to the Court, concerning the first applicant’s prolonged detention and the conditions of detention in the deportation centre. These complaints have been registered as a separate application (no. 10664/05).
In the meantime, on 9 March 2004 the Board refused the first applicant’s request for a residence permit. He challenged the refusal in the Tallinn Administrative Court, which on 19 May 2004 dismissed the complaint. The judgment was upheld by the Tallinn Court of Appeal.
On 20 April 2004 the second applicant was served by the Board with an order to leave the country. On 28 June 2004 she was refused a residence permit.
On 26 April 2005 the Board again refused the first applicant’s request for a residence permit.
B. Relevant domestic law
Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision.
Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case.
C. Aid Programme
According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia.
The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers.
According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme.
In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme).
In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned.
Participation in the Programme was voluntary; no enrolment fee was required.
D. The Estonian-Russian treaties
After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994.
According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year.
The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security.
1. The applicants complained under Article 8 of the Convention that their right to respect for their private and family life had been violated, as they had been refused extensions of their residence permits in Estonia.
2. They complained under Article 3 that the decision to refuse extensions of the residence permits together with a real risk of deportation amounted to inhuman and degrading treatment.
3. The applicants alleged a violation of Article 6 in that the national courts had failed to take into account all the evidence submitted and applied national law incorrectly. The applicants could not take part in the hearing at the Tallinn Court of Appeal.
4. They argued that Article 13 had been violated, as the Estonian courts had failed to enforce the applicants’ rights under Article 8 in conjunction with Article 14.
5. According to the applicants, Article 14 had also been violated in conjunction with Article 8. They considered that they had been discriminated against because of their ethnic background and social origin. Moreover, the second applicant submitted that she had been discriminated against on the ground of her sex, as she had been denied an extension of the residence permit because of her husband’s former profession. The applicants complained, further, that they had been discriminated against, as they had been prevented from acquiring Estonian nationality and permanent residence permits.
6. They maintained that Article 1 of Protocol No. 1 to the Convention in conjunction with Article 13 had been violated. By being turned into illegal residents they had been effectively precluded from enjoyment of their possessions.
7. The applicants submitted that Article 4 of Protocol No. 4 to the Convention prohibiting collective expulsion of aliens had been violated, since altogether about 117 former Soviet army servicemen and their family members would be denied extensions of their residence permits.
8. The applicants complained that their rights guaranteed under Article 1 of Protocol No. 7 to the Convention had been violated. They were deprived of a possibility to prevent their expulsion and were unable to submit reasons against it.
1. The applicants complained that their right to respect for their private and family life had been violated, as they had been refused extensions of their residence permits in Estonia, with no regard to the fact that the first and the second applicants had been living there since 1983 and that the third applicant had been born there and had been living in that country for all his life. The elder son of the first and the second applicants lived in Estonia and that was the country where the applicants had their social and personal ties. They relied on Article 8 of the Convention, which reads:
“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.”
1. Arguments before the Court
(i) The Government
The Government submitted, first, that as the third applicant had been issued a temporary residence permit (valid until 5 June 2008), he was no more under any threat of being expelled from Estonia. Consequently, he had ceased to be a victim within the meaning of the Convention and in respect of him the application should be declared inadmissible.
The Government informed the Court that the first and the second applicants had made a communication to the United Nations Commission on Human Rights. The Government were of the opinion that their application should be declared inadmissible under Article 35 § 2 of the Convention, since they had submitted an application which was substantially the same to another procedure of international investigation or settlement.
Furthermore, the Government submitted that the applicants, by undertaking a commitment to leave Estonia, had deprived themselves of any possibility of living in that country and of receiving residence permits. The applicants had had no reason to expect that they could get a free apartment in the context of the aid programme without fulfilling their own commitments or without any consequences. The authorities could not be held responsible for the applicants’ subsequent change of mind.
Moreover, in the Government’s submission the refusal to extend the applicants’ residence permits had been necessary in a democratic society for the sake of the interests of national security. Furthermore, the applicants had been obliged to leave Estonia according to the terms of the Treaty.
The Government rejected the applicants’ allegation that they had been forced to participate in the aid programme as they had felt anxiety about their future. The aid programme had been concluded between the United States of America and the Russian Federation; the Estonian authorities did not have any possibility to exert pressure on persons to participate in the programme. The Estonian authorities received only in 2001 the lists of persons who had participated in 1995 in the aid programme.
The Government also submitted that the Convention did not guarantee a right to a residence permit in a foreign country. Since 1995, when the first applicant had lodged the application to participate in the aid programme, it should be concluded that he wished to resettle in Russia and to choose that country as the place of residence for him and his family. The applicants had not put forward any essential reasons as to why it would be impossible for them to enjoy their family life in Russia, the country of which they were nationals.
(ii) The applicants
The applicants disputed the Government’s claim that the application should be declared inadmissible under Article 35 § 2 of the Convention, submitting that the “1503 procedure” before the United Nations Commission on Human Rights did not constitute “another procedure of international investigation or settlement” within the meaning of the above provision of the Convention.
The applicants argued that their strong personal, social and economic ties with Estonia had been strengthened by the fact that the authorities had granted them temporary residence permits on several occasions since 1996. They had not had such ties with Russia.
The applicants submitted that they did not represent any threat to the legitimate interests of Estonia. This had been demonstrated by the fact that the authorities had granted them temporary residence permits on several occasions. In their submission the purely economic reason for the refusal to grant them residence permits – the fact that they had participated in the aid programme provided by the United States of America – could not be regarded as a legitimate aim under Article 8 § 2 of the Convention and their expulsion from Estonia was not “necessary in a democratic society”.
The applicants further submitted that their participation in the aid programme had been caused by fear and uncertainty. Considering the uncertain status of former Soviet military personnel, the first applicant had undertaken steps in order to ensure his family with some guarantees. The applicants had believed that if the situation in Estonia improved, they would be able to refuse participation in the programme and give up the apartment received. They had never been informed that participation in the programme would exclude the possibility to obtain residence permits in Estonia. If such a requirement had been envisaged by the aid programme, the first applicant would not have participated in it. The applicants had never been informed by the Estonian authorities that they had an obligation towards Estonia to leave the country. Moreover, the second applicant had never signed any document or application where she had consented to participate in the programme.
The applicants noted that the Estonian authorities had granted “a huge number” of residence permits to persons in a situation similar to that of the applicants. These persons also had taken part in the aid programme and received dwellings in Russia. However, the participation in the programme had not resulted in the refusal to extend the residence permits of these persons.
The applicants argued that – as a result of the authorities’ refusal to extend their residence permits and the continued attempts to force them to leave the country – they had experienced serious moral suffering and distress. The first and the second applicants’ marriage had been dissolved, the first applicant had been kept in detention since November 2003 and the third applicant had not received a document certifying his graduation from the secondary school.
2. The Court’s assessment
The Court notes, as regards the Government’s argument concerning the inadmissibility of the application under Article 35 § 2 of the Convention, that according to the Convention organs’ case-law, the term “another procedure” in Article 35 § 2 refers to judicial or quasi-judicial proceedings similar to those set up by the Convention (see Lukanov v. Bulgaria, no. 21915/93, Commission decision of 12 January 1995, unreported). The Court observes that under the “1503 procedure” (United Nations Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970) the United Nations Human Rights Commission examines situations involving “a consistent pattern of gross and reliably attested violations of human rights”. The Court is of the opinion that the Human Rights Commission is essentially an inter-governmental organ composed of State representatives, which deals with situations rather than individual complaints and which offers no redress to individual victims. Therefore, it finds that the “1503 procedure” cannot be considered as “another procedure of international investigation or settlement” within the meaning of Article 35 § 2. Consequently, the Court is not prevented from examining the present complaint on this ground.
As regards the Government’s allegation that the third applicant had lost his victim status due to the fact that he had been granted a residence permit, the Court notes that although the interference with the third applicant’s right to respect for private life thereby ceased, the first and the second applicants’ deportation could still involve an interference with the third applicant’s right to respect for family life. However, for the reasons set out below, the Court does not find it necessary at this point to determine whether and to what precise extent the third applicant’s victim status was affected by the fact that he was granted a residence permit by the Estonian authorities.
The Court reiterates that the Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX).
The Court recalls that in the case-law of the Convention organs concerning expulsion and extradition measures the main emphasis has consistently been placed on the aspect of “family life”, which has been interpreted as encompassing the effective “family life” established in the territory of a Contracting State by aliens lawfully resident there, it being understood that “family life” in this sense is normally limited to the core family (see Slivenko v. Latvia [GC], no. 48321/99, § 94, ECHR 2003-X, with further references).
The Court observes that the case-law has consistently treated the expulsion of long-term residents under the head of “private life” as well as that of “family life”, some importance being attached in this context to the degree of social integration of the persons concerned (see Slivenko, cited above, § 95).
As regards the specific circumstances of the present case, the Court first notes that it has no reason to doubt that the applicants had a family life in Estonia within the meaning of Article 8 of the Convention. It observes, however, that the applicants voluntarily decided to leave Estonia and to resettle in St. Petersburg, Russia, while the grown-up son of the first and the second applicant continued to live in Estonia.
The first issue arising is whether the applicants must be considered to have waived any right that they had under Article 8 of the Convention to maintain their residence in Estonia. According to the Court’s case-law the waiver of a right guaranteed by the Convention must be made in an unequivocal manner and must not run counter to any important public interest (Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66 and Nagula v. Estonia (dec.), no. 39203/02, 25 October 2005).
In this regard the Court notes that the first and the second applicants were refused residence permits in Estonia on 8 May 2000. The third applicant was denied a residence permit on 14 June 2000. Before that the first applicant had, on 9 April 1995, signed a written commitment to leave Estonia in connection with the aid programme. On 18 April 1995 he had confirmed that he had been happy about the departure. On 14 June 1995 he had concluded a purchase agreement for an apartment in St. Petersburg, Russia, funded in most part through the aid programme. Furthermore, on 15 June 1995 he had been registered as the owner of the apartment by the Russian authorities.
The Court takes note that the applicants were granted temporary residence permits in Estonia in 1996, 1998 and 1999. However, it finds that this does not alter the fact that already in April 1995 they had undertaken to leave Estonia. The Court notes in this context that in the Government’s submission the Estonian authorities received only in 2001 the lists of persons who had participated in 1995 in the aid programme.
The Court is not persuaded by the applicants’ argument that they had never been informed by the Estonian authorities that they had an obligation to leave the country. It must have been clear from the context in which the applicants agreed to participate in the aid programme that the object of the programme was to facilitate the withdrawal of Russian troops from, inter alia, Estonia. The different elements in this process were inextricably intertwined; the grant of the financial aid to the applicants in order to acquire an apartment in Russia was directly connected with the obligation of the Russian Federation to withdraw its troops from Estonia under the Treaty and with the applicants’ commitment to leave the country.
Furthermore, the Court is not convinced by the applicants’ allegation that the second applicant had never consented to participate in the aid programme and to leave Estonia. First, the Court notes that there is no indication that the second applicant raised this issue during the pertinent domestic judicial proceedings. On the contrary, as appears from the domestic courts’ judgments, the applicants submitted to the courts that they had participated in the aid programme. Furthermore, in the application to the Court, signed by all three applicants on 23 May 2003, it was submitted that “[t]he applicants concede that they participated in the program.” While it is true that the written commitment, the application to take part in the programme and the purchase agreement for the apartment were signed only by the first applicant, the Court cannot but conclude that these decisions were taken jointly by the first and second applicants on their own behalf and on the behalf of the third applicant.
The Court considers that by acquiring an apartment in Russia with the assistance of financial aid obtained under the resettlement programme, after having accepted the conditions for taking part in the programme including the commitment to leave Estonia, the applicants had completed a substantial part of the agreement concluded under the aid programme designed for their benefit. In return, they were obliged to vacate their dwelling in Estonia, not to seek to stay in Estonia as permanent residents and to visit that country, if they so wished, only as foreigners on a general basis. The Court considers the applicants’ waiver of rights to be established irrespective of the fact that they failed subsequently to fulfil all their undertakings under the resettlement agreement, which could not reasonably found any legitimate expectation on their part to remain in Estonia permanently. It finds that the respondent State cannot be held responsible for the applicants’ subsequent change of mind. Otherwise, if the possibility of resiling from a waiver of rights at any point in time were to be accepted, legal certainty would be undermined and the concept of waiver would become an empty notion. The Court finds, on the evidence before it, in particular the applicants’ express declarations and the steps they took to honour their part of the resettlement agreement, that they must be considered to have unequivocally waived any rights they may have had under Article 8 to remain in Estonia.
Furthermore, having regard to the Estonian-Russian troops withdrawal treaty and the applicants’ commitment, the Court considers that the waiver does not appear to run counter to any public interest.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicants complained that the decision to refuse extensions of the residence permits together with a real risk of deportation amounted to inhuman and degrading treatment. They relied on Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
As regards the present case, the Court finds that the applicants have failed to substantiate convincingly that they had been subjected to any treatment that could be considered to fall within the scope of Article 3. Moreover, there is no evidence that the applicants faced or face such a risk.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicants alleged that the national courts had failed to take into account all the evidence submitted and applied national law incorrectly. Furthermore, the applicants could not take part in the hearing at the Tallinn Court of Appeal. They relied on Article 6 of the Convention, paragraph 1 of which, in so far as relevant, reads:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law...”
The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not involve the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). It finds also in the present case that the proceedings concerning the issuing and extension of residence permits and the subsequent review thereof in the administrative court proceedings did not entail a “determination of ... civil rights and obligations or of any criminal charge against...” the applicants and, therefore, Article 6 § 1 is inapplicable.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
4. The applicants were of the opinion that, since the Estonian courts had failed to enforce their rights under Article 8 in conjunction with Article 14, the authorities had violated Article 13 of the Convention. The last provision reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that Article 13 of the Convention requires the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 47, § 120). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).
The Court notes that the applicants had a right to challenge the authorities’ refusal to extend their residence permits before an administrative court, which they, in fact, did. Furthermore, following the applicants’ appeals, their complaints were adjudicated by the Court of Appeal and by the Supreme Court. The domestic courts were empowered to examine the merits of the applicants’ complaints and the judgments provided sufficient reasoning concerning the complaints. In the light of all the material in its possession, the Court finds that this discloses no appearance of a violation of Article 13 of the Convention.
Even assuming that the applicants had an arguable claim for the purposes of Article 13, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicants complained that Article 14 of the Convention had been violated in conjunction with Article 8. They considered that they had been discriminated against because of their ethnic background and social origin. The second applicant also complained that she had been discriminated against on the ground of her sex, as she had been denied an extension of the residence permit on the ground of her husband’s former profession. The applicants complained, further, that they had been discriminated against, as they had been prevented from acquiring Estonian nationality and permanent residence permits. Article 14 of the Convention, invoked by the applicants, provides:
“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.”
As regards the complaint concerning the fact that the applicants had been prevented from acquiring Estonian nationality, the Court recalls that the Convention does not guarantee a right to nationality (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II).
In respect of the remainder of the complaints under this item, the Court finds, in the light of the conclusion that the applicants had waived any rights they may have had to remain in Estonia (see above), that these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
6. The applicants maintained that Article 1 of Protocol No. 1 to the Convention in conjunction with Article 13 had been violated. By being turned into illegal residents they had been effectively precluded from enjoyment of their possessions. Article 1 of Protocol No. 1 to the Convention reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
The Court considers that the applicants’ allegation concerning a violation of their property rights is unsubstantiated. It finds no indication that the applicants were in any way hindered with regard to enjoyment of their property.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
7. The applicants submitted that, since altogether about 117 former Soviet army servicemen and their family members would be denied extension of their residence permits, Article 4 of Protocol No. 4 to the Convention had been violated. This provision reads as follows:
“Collective expulsion of aliens is prohibited.”
The Court observes that the applicants received individual decisions by which they were refused extensions of their residence permits. Their complaints were individually examined by the administrative courts whereby they had an opportunity to present their arguments. The Court finds no indication of a collective expulsion within the meaning of Article 4 of Protocol No. 4 to the Convention.
8. The applicants complained that they were deprived of a possibility to prevent their expulsion and were unable to submit reasons against it, in violation of Article 1 of Protocol No. 7 to the Convention, paragraph 1 of which reads:
“An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:
(a) to submit reasons against his expulsion,
(b) to have his case reviewed, and
(c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.”
Leaving aside the question whether the applicants have been expelled from Estonia within the meaning of the above provision and whether it should be considered that they waived their rights, the Court notes that the applicants’ case was adjudicated by an administrative court and, following their appeals, also by a court of appeal and by the Supreme Court. At all levels it was open to them to submit reasons against the authorities’ refusal to extend their residence permits. In the light of all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of Article 1 § 1 of Protocol No. 7 to the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Nicolas Bratza
MIKOLENKO v. ESTONIA DECISION
MIKOLENKO v. ESTONIA DECISION