EHRM, 18-11-2014, nr. 5049/12

The case originated in an application (no. 5049/12) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Russian national, Mrs Marina Senchishak (‘the applicant’), on 17 January 2012.

The applicant was represented by Mr Pirkka Lappalainen, a lawyer practising in Tampere. The Finnish Government (‘the Government’) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The applicant alleged, in particular, that her removal to Russia by the Finnish authorities would violate Articles 3 and 8 of the Convention.

On 26 January 2012 the Court indicated an interim measure to the Government under Rule 39 of the Rules of Court and held that the applicant should not be removed to Russia until further notice.

On 14 March 2013 the application was communicated to the Government.

Declares unanimously the complaint under Article 3 admissible and declares, by a majority, the remainder of the application inadmissible;

Holds unanimously that there would be no violation of Article 3 of the Convention if the applicant were to be expelled to Russia;

Decides unanimously to continue to indicate to the Government under Rule 39 of the Rules of Court that it is desirable in the interests of the proper conduct of the proceedings not to expel the applicant until such time as the present judgment becomes final or until further order.

Done in English, and notified in writing on 18 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos

Registrar

Ineta Ziemele

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Bianku and Kalaydjieva is annexed to this judgment.

I.Z.

F.E.P

We have voted with the majority in so far as we agree that the applicant in the present case failed to demonstrate that her expulsion to Russia would subject her to a risk of treatment of an inhuman and degrading nature beyond the threshold of severity prohibited by Article 3.

Regrettably, we could not agree that the provisions of Article 8 were not applicable to the circumstances of the present case or that the complaints of the applicant thereunder were thus incompatible ratione materiae with the Convention (see paragraphs 57 and 58).

The Court's view as to whether the relationship between two persons amounts to ‘family’ ties within the meaning of Article 8 has never been confined to the definition of ‘family members’ provided in the relevant domestic legislation. For this reason the fact that the applicable domestic law in the present case does not regard elderly parents in relation to their adult children as ‘family members’ can neither bind the Court nor change its autonomous interpretation of the notion of ‘family life’ and the circle of individuals entitled to rely on the protection of Article 8 of the Convention1..

In their analysis as to whether the circumstances of the present case fell under the protection of Article 8, the majority referred to the principle whereby ‘relationships between parents and adult children do not fall within the protective scope of Article 8 unless ‘additional factors of dependence, other than normal emotional ties are shown to exist’’ (see paragraph 55 with further references). In this regard they rightly contrasted the Court's views in Emonet and Others v. Switzerland with those in Kwakye-Nti and Dufie v. the Netherlands. In the first case the Court found Article 8 applicable to the relationship between an adult child with severe disabilities and her biological mother and mother's partner, who both provided loving care to her. In a situation similar to that of the present case, their relationship had been interrupted when the adult child had got married, but had been restored and maintained in the years after her divorce and serious illness. In Emonet and Others (cited above, §§ 34 and 82) the Court thus indicated that the concept of ‘family’ under Article 8 of the Convention was ‘not confined solely to marriage-based relationships but [might] also encompass other de facto ‘family’ ties’, and that ‘the national authorities were under an obligation to take action to allow those family ties to develop’. It went on to find (§ 80) that ‘[e]ven though the first applicant [was] an adult, she need [ed] care and emotional support ’. The Court further considered that in that setting there were ‘‘additional factors of dependence, other than normal emotional ties’ … which exceptionally [brought] into play the guarantees that derive[d] from Article 8 between adults’, in contrast to the Haas v. the Netherlands judgment (no. 36983/97, § 42, ECHR 2004-I), where the Court held that no ‘family life’ existed because the applicant had never lived with his son and had only ever had sporadic contact with him (see also, mutatis mutandis, Söderbäck v. Sweden, 28 October 1998, § 32, Reports of Judgments and Decisions 1998-VII).

In our understanding the difference in factual circumstances in relation to Emonet and Others seems to be limited to the fact that in the present case the disabled adult person involved in the family ties is a mother and not an adult child.

Departing from the conclusion in Emonet and Others, the Chamber suggested in the present case that the fact that the applicant and her daughter had lived together for the last five years, after living separately in two different countries for the previous twenty years, did not create a new family life (see paragraph 51). We find ourselves unable to follow this rather formalistic approach in the absence of a proper in concreto analysis as to whether, despite separation for twenty years, the mother-child relationship and their life together over the past five years could be seen as sufficiently strong to attain the nature of a family-life relationship between the applicant and her daughter.2.

It seems that the finding by the majority as to this pertinent element of the applicability of Article 8 was further determined by the fact that the applicants' legal status in Finland had not been regularised. They took the view that ‘the fact that the applicant ha[d] spent the last five years in Finland [did] not create a relationship between the applicant and her daughter, which could amount to ‘family life’’, as she lacked status and ‘must have been aware of her insecure situation … in Finland’ (see paragraph 56). We remain unconvinced by this argument, since in earlier cases the Court has held that family-life relationships can exist even where the status of one of the members has not been regularised under domestic law (see, as a recent authority, Jeunesse v. the Netherlands [GC], no. 12738/10, 3 October 2014). While the applicant's awareness of her irregular status may be of some importance for the determination of whether she could be said to be a ‘settled migrant’ for the purposes of having her ‘private life’ in the country, this appears to be irrelevant for the existence of emotional ties between her daughter and herself, as a dependent elderly parent, who ‘do[es] not belong to the core family’.3.

In any event, the majority seem finally to agree that one of the elements capable of bringing the situation under the protective scope of Article 8 — the emotional ties — did in fact exist in the present case (see paragraph 57 in fine).

What remained to be examined was whether in addition to ‘the normal ties of affection’ there were ‘additional factors of dependence’, capable of bringing the circumstances of the case under the protection of Article 8.4.

Apparently the majority did not deem it appropriate to conduct an analysis of this aspect of the applicability of Article 8 in similar cases. For us it seems clear that, in the conditions described in paragraph 5 of the judgment, the present circumstances required such analysis and we regret that the Court dismisses this issue by simply noting (see paragraph 46) that ‘even assuming that the applicant is dependent on outside help in order to cope with her daily life’, it is not necessary for such care to be provided by her daughter or in Finland as ‘there are both private and public care institutions in Russia and it is also possible to hire external help’ (which, in the applicant's view, would risk exposing her to treatment contrary to Article 3 of the Convention).

Thus, acknowledging the existence of ‘normal affection’ as one of the elements pertinent to the applicable test, the majority found the applicant's actual dependence (or otherwise) on the everyday loving care of an adult child to be of no relevance for the applicability of Article 8. In our understanding this approach fails to take into account the entirety of the initially indicated applicable principle that ‘the existence of ‘family life’ cannot be relied on by applicants in relation to their elderly parents, adults who do not belong to the core family, unless the latter have been shown to be dependent on the members of their family (see Slivenko v. Latvia [GC], cited above, § 97)’ (see paragraph 55, emphasis added).

The notion of ‘core family’ and the level of preserved emotional ties between parents and separated adult children vary across the cultures and traditions of Europe as well as among individuals living in various countries. These ties cannot be said to depend on the ‘regular’ or ‘irregular’ status of one or other member of the wider family circle, and often vary also in the different periods of their lives regardless of their place of residence. A time comes when elderly parents do need the loving care of their adult children and actually receive it as a matter of moral duty and preserved feelings of affection. To deny this is to hold that once an individual comes of age, the emotional ties with his or her parents are to be considered once and for all de facto and de jure severed and that for this reason neither a moral nor a legal duty to provide care may be said to exist between them. In our understanding this is incorrect in both legal and moral terms.