Article 8 of the ECHR in the light of recent judgments against Russia
Access to the ECHR has enabled Russian citizens to invoke their right to respect for private and family life in the ECtHR. In 2020 the ECHR delivered 185 judgements against Russia. Cases falling under art.8 have wide range of issues such as adoption, paternity disputes, child abduction, contact with a child, deprivation of parental rights.
In the case Y.S. and O.S. v. Russia about return of an abducted child under the Hague Convention to a conflict zone in eastern Ukraine the Court held that the “grave risk” allegation had not been genuinely taken into account by the Russian courts and accordingly found a violation of the Article 8. The case Naltakyan v. Russia delivered the 20th of April 2021 concerns adoption of a child without his father genuine consent. The applicant’s wife gave birth prematurely, and lied to him that the child had died. She abandoned the child in the maternity hospital signing the document pf abandonement and forged the applicant’s signature. The applicant learnt of his child’s survival at birth only a year and a half later, following an official claim for removal of his parental authority over the child in the context of adoption proceedings. The applicant applied for access to and parental custody of his child, but failed. The ECtHR found the violation of Article 8 (in 13 years after his application to the ECHR).
Failure of Russian authorities to ensure enforcement of order of return of the applicant’s children to Estonia under the Child Abduction Convention 1980 after removal by the father, due to the fact that the measures taken by the Russian authorities were inadequate and ineffective, and as a result violation of the art. 8 was found in the judgement Makhmudova v. Russia delivered on the 1st December 2020. In the judgement Y.I v. Russia of 25/02/2020 the applicant who was drug addict on treatment had been disproportionately deprived of parental authority over her children, of which the two youngest placed in public care – violation of the Article 8. But no violation in the judgement 30.6.2020 Ilya Lyapin, when the applicant, a natural father divested of parental rights due to voluntary and prolonged separation from child, who was well integrated into mother’s new family from an early age and deeply attached to step-father who later adopted him.
The judgement Vladimir Ushakov v. Russia of 18 June 2019 concerned the removal from Finland to Russia of the applicant’s daughter. The ECtHR concluded that the interpretation and application of the provisions of the Child Abduction Convention 1980 by the Russian apellate court failed to secure the guarantees of Article 8 of the ECHR. Namely, the procedural shortcomings as to the evaluation of medical documents allegedly confirming that any change of residence would be harmful for the child amounted to the judicial non-assesment of the best interests of the child. The ECtHR awarded the applicant 16,250 euro compensation in respect of non-pecuniary damage.
In the judgement Zelikha Magomadova v. Russia (appl. 58724/14) 8th of October 2019 the Court dealt with the question of withdrawal of parental authority of the mother of 6 children.Ms Magomadova was forcibly separated from her children by her brother-in-law in 2010. The children remained with her husband’s family, which has prevented her from having access to them since. The brother-in-law brought three sets of proceedings to deprive her of her parental authjority, which eventually went in his favour in 2013 following the authorities’ failure to enforce two judgments first ordering that the children live with their mother and then determining contact rights with her.
The ECtHR found in particular that not only had the authorities been idle for years when faced with Ms Magomadova’s situation, but they had then shifted responsibility on to her when ultimately depriving her of parental authority. In the Court’s view, the national courts’ conclusions in those proceedings, in particular that she had avoided bringing up her children, had been totally unreasonable. Such an arbitrary interference with her right to respect for her private life had no place in a democratic society governed by the rule of law.
In the judgement Singla the Court reiterated that the notion of the “family” was not confined solely to marriage-based relationships, and may encompass other de facto “family” ties where the parties are living together outside of marriage,so the applicant’s exclusion due to his criminal record amounted to the violation of art. 8.
Bogonosov v. Russia (appl. 38201/16) was delivered the 5th of March 2019. The case concerned a grandfather who wanted to maintain ties with his granddaughter afer her adoption by another family. Violation of article 8 because during the adoption procedure the City Court led the grandparents of the child to beleive that it was open to them to maintain the post-adoption contact with their granddaughter through the procedure provided for by art. 67 of the Family Code.
V.D. and others v. Russia (appl.No 72931/10) delivered the 9th of April 2019. The case concerned a child, who was cared for by a foster mother, for nine years since his birth and was then returned to his biological parents. Violation of Art.8 because of the decision to deny the foster family any subsequent contacts with the child; critics of the rigid character of the right to have contact with a child in the Russian legislation.