DISSENTING OPINION OF JUDGE MARUSTE

1. I agree with the majority that the overall length of the applicant ’ s detention was too long. But my point of view is that this case does not belong to the family of ordinary expulsion cases and should be assessed differently. It has to be noted also that this case is only about length of detention pending expulsion and not about the substantive question of expulsion. The latter complaint was declared inadmissible on 5 January 2006.

2. Firstly, unlike ordinary expulsion cases this case has a specific international law background – a bilateral treaty on the withdrawal of Russian troops from Estonian territory. Under the terms of that treaty, the applicant was obliged to leave the country ( pacta sunt servanda !). Furthermore, it was established through free and fair court proceedings that he did not have any legal grounds to stay in Estonia (see paragraphs 7 and 8 of the judgment). No humanitarian ground was established for military servicemen of approximately 50 years of age to stay in the country. It should be noted 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 the applicant ’ s detention.

3. Secondly, the applicant ’ s own obstructive behaviour has to be taken into account. It has been shown by the Estonian authorities that he had been issued a valid Russian passport. Even assuming that he had lost it, it could easily have been replaced by a new passport or other travel document immediately if he had agreed to sign an application form. At the same time it has also to be noted that in spite of their treaty obligation and the commitments concerning readmission signed with the EU on 25 May 2006, the relevant authorities of the applicant ’ s country of origin showed clear unwillingness to cooperate and put a stop to the applicant ’ s sufferings. Under that agreement between the EU and Russia the Russian authorities were required to issue travel documents to persons to be readmitted, irrespective of their will.

4. Thirdly, as concerns the argument that the authorities could have applied more lenient measures, such as police supervision, to ensure the applicant ’ s compliance with his obligation to cooperate and execute his expulsion, it must be reiterated that detention under Article 5 § 1 (f) does not have to be considered “necessary”; provided that the detention concerns a person against whom action is being taken with a view to deportation, it may suffice that such detention is considered “appropriate” (see Agnissan v. Denmark , (dec.) no. 39964/98 , 4 October 2001). States have a recognised sovereign right to control entry and stay on their territory and should have the power to expel those who do not have the right to stay. In sum, the lengthy stay in the detention centre was to a large extent caused by the applicant himself and by his country of origin.

5. Lastly, I consider it very problematic to award compensation in cases where the violation has occurred (or even been achieved) through manifestly obstructive behaviour in defiance of law and order and valid judicial decision.