Slivenko v Latvia
| Judge | JUDGES WILDHABER (PRESIDENT),ROZAKIS,COSTA,RESS,BRATZA,MAKARCZYK,CABRAL BARRETO,TULKENS,STRAZNICKA,LORENZEN,TSATSA-NIKOLOVSKA,GREVE,BAKA,MARUSTE,TRAJA,BOTOUCHAROVA AND KOVLER,AND MR P MAHONEY,REGISTRAR |
| Judgment Date | 09 October 2003 |
Human rights – Private and family life – Home – Applicant mother and daughter of Russian origin living in Latvia almost all their lives – Husband of first applicant and father of second applicant being Russian military officer – Applicants’ removal from Latvia ordered on basis of treaty requiring Russian officers to leave Latvia together with their families – Whether removal of applicants from Latvia violating their right to respect for their private life, their family life and their home in Latvia – Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The first applicant, T, was born in Estonia into the family of a military officer of the Union of Soviet Socialist Republics (the USSR). At the age of one month she moved to Latvia with her parents. Her husband, N, was transferred to Latvia in 1977 to serve as a Soviet military officer. N met T in Latvia and married her there. In 1981 T gave birth to their daughter, K, the second applicant. T’s father retired from military service in 1986. Latvia regained independence from the USSR in 1991 and in 1992 the Russian Federation assumed jurisdiction over the former Soviet armed forces, including those stationed in the territory of Latvia. In March 1993 the applicants and T’s parents were entered in the register of Latvian residents as ex-USSR citizens. At that time, none of them were citizens of any particular state. In her request to be entered in the register, T had not indicated that N was a Russian military officer. N, who had become a Russian citizen in the early 1990s, continued his service in the Russian army until his discharge in 1994. In the same year the treaty between Latvia and Russia on the withdrawal of Russian troops, which required all Russian officers in service on 28 January 1992 to leave Latvia together with their families, became effective. N applied to the Latvian Citizenship and Migration Authority (the CMA) for a temporary residence permit in Latvia by reason, inter alia, of his marriage to T, a permanent resident of Latvia. That was refused on the ground that, as a Russian military officer, N was required to leave Latvia in accordance with the treaty. N brought a successful court action against the CMA, claiming that their refusal to issue him with a temporary residence permit was void. The regional court upheld the CMA’s appeal against that judgment. Subsequently the immigration authorities issued a deportation order in respect of the applicants and the local authorities decided to evict them from their flat, which they rented from the Latvian Defence Ministry. The eviction order was not enforced. Thereafter N moved to Russia, while the applicants remained in Latvia. T brought a court action in her own name and on behalf of K, claiming that they were in fact permanent residents of Latvia and that they could not be removed from the country. The district court found in favour of the applicants holding that T had come to Latvia as a relative of her father, not her husband. As T’s father had retired in 1986, he could thereafter no longer be regarded as a military officer, and his close relatives—including the applicants—could be entered in the register as permanent residents of Latvia. The court quashed the deportation order in respect of the applicants and authorised their re-entry in the register. The CMA appealed against that judgment and the regional court upheld the appeal. The Supreme Court confirmed that decision ruling that, because N had been discharged from the Russian armed forces after 28 January 1992, the applicants—as part of his family—were required to leave Latvia in accordance with the treaty. T submitted to the immigration authorities an appeal against the deportation order, requesting a residence permit and her re-entry in the register. She stated, inter alia, that she and K had lived in Latvia all their lives and had no other citizenship, and that she was required to take care of her disabled parents who were permanently resident in Latvia. On 28 October 1998 the police entered the applicants’ apartment and arrested them. The following day a police officer issued an arrest warrant in respect of the applicants stating that the applicants had no valid documents justifying their stay in Latvia, and that the applicants’ entry in the register of Latvian residents had been annulled by the Supreme Court’s final judgment. On the basis of the warrant the applicants were immediately detained in a centre for illegal immigrants for a period of less than 24 hours. Thereafter the applicants received a letter from the Director of the CMA, informing them that they were required to leave Latvia immediately. On 16 March 1999 the flat of T’s parents was searched by the police in the presence of K. On the same date, a police officer issued a warrant for K’s arrest stating that K had no valid document justifying her stay in Latvia, and that there were reasonable grounds to suspect that she was staying in Latvia illegally. K was immediately arrested and thereafter detained for 30 hours in a centre for illegal immigrants. In July 1999 the applicants moved to Russia to join N. After the applicants had left Latvia, their flat was taken back by the Latvian authorities. The applicants adopted Russian citizenship as former nationals of the USSR. T’s parents were not required to leave Latvia under the treaty and continued living in Latvia on the ground of their status as ‘ex-USSR citizens’. The applicants complained to the European Court of Human Rights that: their removal from Latvia had violated their right to respect for their ‘private life’, their ‘family life’ and their ‘home’ in Latvia within the meaning of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention); invoking art 14 of the Convention in conjunction with art 8, they had been subjected to treatment different from that of other Latvian residents having the status of ‘ex-USSR citizens’; their detention on 28–29 October 1998 and the second applicant’s detention on 16–17 March 1999 had been arbitrary and unlawful, in breach of art 5(1)(f); and they had not been able to obtain judicial review of their detention, contrary to the requirements of art 5(4). The Latvian government maintained that the applicants’ removal had been compatible with Latvian law and the Latvian-Russian treaty and had pursued the legitimate aims of the protection of national security and the prevention of disorder and crime.
Held – (1) (By a majority) Case law under the Convention in relation to expulsion and extradition measures emphasised the aspect of ‘family life’ established in the territory of a contracting state by aliens lawfully resident there, it being understood that ‘family life’ in that sense was normally limited to the core family. However, the Convention included no right, as such, to establish one’s family life in a particular country. Furthermore, case law had consistently treated the expulsion of long-term residents under the head of ‘private life’ as well as that of ‘family life’, some importance being attached in that context to the degree of social integration of the persons concerned. Moreover, art 8 applied to the exclusion of displaced persons from their homes. In the instant case, the first applicant arrived in Latvia when she was only one month old. She attended school there, found employment and married. Her daughter, K, was born in Latvia and lived there until the age of 18, when she was compelled to leave the country together with her mother, having just completed her secondary education. It was undisputed that the applicants left Latvia against their own will, as a result of the unsuccessful outcome of the legal proceedings concerning the legality of their stay in Latvia. They were thus removed from the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that made up the private life of every human being. Furthermore, as a result of the removal the applicants lost the flat in which they had lived. In those circumstances, the applicants’ removal from Latvia constituted an interference with their ‘private life’ and their ‘home’ within the meaning of art 8(1) of the Convention. In contrast, even though the applicants evidently had an established ‘family life’ in Latvia, the impugned measures of removal from the country were not aimed at breaking up the family, nor did they have such an effect. Furthermore, the existence of ‘family life’ could not be relied on by the applicants in relation to the first applicant’s elderly parents, adults who did not belong to the core family and who had not been shown to have been dependent members of the applicants’ family. None the less, the impact of the impugned measures on the applicants’ family life—notably their ultimate enforced migration as a family unit to the Russian Federation—was a relevant factor for the assessment of the instant case under art 8 of the Convention.
(2) (By a majority) The withdrawal of the armed forces of one independent state from the territory of another, following the dissolution of the state to which they both formerly belonged, constituted, from the point of view of the Convention, a legitimate means of dealing with the various political, social and economic problems arising from that dissolution. The fact that in the instant case the Latvian-Russian treaty provided for the withdrawal of military officers who had been placed under Russian jurisdiction and that it also obliged their families to leave the country, was not in itself objectionable from the point of view of the Convention and in particular art 8. In so far as the withdrawal of the Russian troops interfered with the private life and home of the persons concerned, such interference would normally not appear disproportionate, having regard to the conditions of service of military officers. That was true in...
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