Resolution CM/ ResDH (2012) 74 [1]

Execution of the judgment of the European Court of Human Rights

Mikolenko against Estonia

(Application No. 10664/05, judgment of 08/10/2009, final on 08/01/2010)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the excessive length of the detention of the applicant with a view to his deportation (violation of Article 5, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012) 74

Information about the measures to comply with the judgment in the case of

Mikolenko against Estonia

Introductory case summary

This case concerns the excessive length of detention of the applicant, a Russian national, in a deportation centre (more than 3 years and 11 months from 2003-2007) with a view to deportation to the Russian Federation . The Court recalled that the privation of the applicant ’ s liberty was justified under Article 5, paragraph 1 (f), only for as long as the deportation proceedings were in progress, and if such proceedings were not being conducted with due diligence, the detention would cease to be permissible. In the present case, the Court found that the applicant ’ s detention had not been valid for the whole period due to the lack of a realistic prospect of his deportation and the domestic authorities ’ failure to conduct the proceedings with due diligence. It noted in particular that it had been provided with no information as to whether any step had been taken with a view to the applicant ’ s deportation between August 2004 and March 2006 (violation of Article 5, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

208 EUR

2 208 EUR

Paid on 03/02/2010

b) Individual measures

By decision of the Tallinn Administrative Court , the applicant was released from the deportation centre on 09 / 10/2007 (§ 16 of the judgment).

On 08/06/2011 the Estonian Supreme Court granted the applicant ’ s request for re-opening of the proceedings concerning his placement in the deportation centre. T aking into consideration the European Court ’ s judgment, the Supreme Court found that although the applicant ’ s initial pla cement in the deportation centre had been justified (see also § 64 of the judgment), the prolongation of his stay there had bec ome unjustified starting from August 2004 . The Supreme Court annulled the Tallinn Administrative Court ’ s decisions (delivered between 19/08/2004 and 09/08/2007) prolonging the applicant ’ s stay in the deportation centre.

In view of the above, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgment was translated into Estonian, placed on the website of the Council of Europe Information Office in Tallinn ( http://www.vm.ee/? q =en/node/4094 ) and distributed to all authorities concerned.

The Estonian authorities indicated that this case present ed an isolated incident and thus no further le gislative or regulatory action wa s required. Should a similar case nevertheless arise, reference to the Court ’ s judgment, which is now part of Estonian law in view of the direct effect of the Convention and the Court ’ s case-law, would be sufficient guidance for the judicial and administrative authorities.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the Court in this case, that these measures will prevent similar violations and that Estonia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 June 2012 at the 11 44 th Meeting of the Ministers’ Deputies .