Head of International Summer University of the University of Tartu
Recent Judgments and Decisions of the European Court of Human Rights towards Estonia
This article reviews the judgments 1 and decisions 2 that have been made by the European Court of Human Rights (ECHR) towards Estonia. It does not analyse every single case decided by the ECHR in the time span addressed here but instead looks at certain groups of decisions and judgments. First, it should be noted that in 2005 several cases were decided where the applicants complained about similar convention violations - about the refusal to grant residence permits to Russian nationals having served in the Soviet military or security forces, and their families. In these decisions, the ECHR adopted an approach to substantiating the inadmissibility of the applications that is largely novel from the perspective of general Strasbourg case law. Secondly, there is a group comprising decisions that address the question of whether Estonian courts when convicting some individuals for crimes against humanity for their actions in the late 1940s and early 1950s acted in accordance with the convention's requirements. These decisions do not offer significant new aspects from the perspective of Strasbourg case law development but do place Estonia into the group of former Soviet bloc countries from which cases dealing with crimes of former state officials have reached Strasbourg3.
After consideration of these groups of decisions and judgments, the article proceeds to examine whether some areas where Estonia has before been found in violation of human rights continue to be problematic and whether any new patterns of this sort can be noticed4.
The total number of judgments and decisions made in January 2005 through January 2006 5 and entered into the HUDOC (Human Rights Documents) database is 156. The total number of entries in the database through January 2006 is 51. This figure by itself is not informative, as cases that are finally decided on their merits are included in the database on multiple occasions - first when the decision is made about admissibility and then for the judgment on the merits. However, the number of entries in the HUDOC database may be indicative of a possible growing frequency with which individual applicants from Estonia seek the protection of the ECHR. The first entry is from 1998, and for the years between 1998 and 2004, inclusive, the annual number of entries in the HUDOC database has been between two and eight7. Without the month of January 2006, in 2005, there were 12 entries made in the HUDOC database. This is around 50% more than in the previous year and a significant increase over the figures for 2001 through 20038. At the time of the writing of this article (May 2006), there were 11 judgments on the merits included in the HUDOC database9. Four of these were made in 2005, which is slightly under one third of all cases decided towards Estonia. The trend is certainly growing10.
It is important to note that - leaving aside one case out of the 11 where judgment was made on the merits (this case being one where the parties reached a friendly settlement 11 ) - there are 10 cases to consider where the Strasbourg court ruled on the merits of the case. In eight of these cases, the court ruled in favour of the applicant, establishing a convention violation as having occurred, and in only two cases was there found to be no violation of the convention.
It is possible to draw some preliminary conclusions through examination of these statistics. First, there is a growing trend in the decisions and judgments of the European Court of Human Rights towards Estonia12. And, secondly, at the time of this writing, 80% of the judgments made by the ECHR towards Estonia on the merits had established occurrence of a convention violation. It may therefore be safe to state that at this stage a decision by the ECHR that declares an application admissible is in itself more than half of a victory for the applicant, as the finding of a violation is likely to follow. This finding can be justifiably accorded additional weight by means of comparative data for Estonia's neighbouring countries of Latvia and Lithuania13. The current experience of the Baltic countries with the Strasbourg judicial system involves, on average, 85% of the cases declared admissible ending with the finding of a convention violation14. The other side of the coin is, as shall be demonstrated below, that often in decisions where a case is declared inadmissible, the ECHR also provides a comprehensive analysis of the case with references to relevant Strasbourg case law. This trend may be prompted by the need to economise on time and the human resources of the court while at the same time giving the applicants the opportunity to understand the position and reasoning of the ECHR on their particular case15.
It cannot be excluded that the practice by which the decision to admit an application means the strong likelihood of establishing a Convention violation, is a way by the Court to address the concerns of long proceedings within the Strasbourg system. When the future of Protocol No. 14 to the Convention, which is meant to considerably increase the effectiveness of the ECHR, is not at all clear, there is a need for temporary measures to shorten the time of uncertainty connected with the waiting of the final judgment16. This practice undoubtedly affects the majority of applicants. Recent statistics for 2005 show, that the ECHR made 28,581 decisions on the admissibility and at the same time handed down only 1105 judgments on the merits17.
During the period under review in this article, three applications were decided upon by the ECHR where complaints from former officers of the Soviet Army and the Russian Army are concerned18.
In all three cases, the male applicant (the head of the family) had agreed to participate in the aid programme established in April and July 1993 by the president of the United States of America and the president of Russia, under which it was agreed to provide 5,000 units of housing for Russian military officers demobilised from the Baltic countries or elsewhere outside Russia. The former military officers were provided with funds by the US government to enable them to obtain a 'housing certificate' allowing them to purchase or construct an appropriate dwelling in Russia19. In order to become eligible for the programme, the former officers had to present a signed application "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", according to the court20. The applicants indeed were able to obtain living space in Russia, but when in the early 2000s they wished to renew their temporary residence permits for Estonia, these requests were denied. Domestic courts upheld the respective decisions of the authorities. The applicants (the former officers and their wives) were forced to leave Estonia. The applicants complained to the ECHR of various violations of the convention, of which the most comprehensive was the violation of article 8 of the convention - the claim being that the refusal to extend the residence permits violated their right to respect for their private and family life. It also deserves attention that they complained of violation of article 14; in the view expressed by the applicants in the Dorochenko and Mikolenkocases, many other individuals in comparable situations had received extension of their residence permits, the applicants thus receiving discriminatory treatment and, secondly, the wives of the applicants believed that their residence permits were not extended due to their marriage to the former Soviet Army officers.
Although the Strasbourg court had not ruled on comparable complaints from Estonia before 2005, it had made a major decision in a case from Latvia. On 9 October 2003, the Grand Chamber of the ECHR, by a vote of 11 to six, established that a violation of the convention's article 8 had occurred in the case of Slivenko v. Latvia21. Here, the ECHR relied on analysis of the circumstances of the case from the perspective of the well-known principle of the margin of appreciation doctrine22. The Slivenko case may be considered among the most significant ones decided by the Strasbourg court towards Latvia and addressing the somewhat sensitive question of 'Russian minorities' in the former Soviet bloc countries. As Michael Hutchinson has pointed out, the ECHR has often relied on the principle of the margin of appreciation in its more important and controversial judgments 23 - this was confirmed in the Slivenko case. According to the case law of the ECHR, three questions need to be asked in determining whether the state has violated the convention rights of individuals under its jurisdiction and overstepped its responsibilities under the margin of appreciation doctrine: whether the interference with the convention right has been "in accordance with the law", whether it pursued a legitimate aim, and whether the interference was "necessary in a democratic society"24. The Strasbourg court decided that, although in the case of Slivenko the Latvian state acted in accordance with the law and pursed a legitimate aim when...