Arrêt A.H. And Others v. Russia rendu par la Cour européenne des droits de l’homme le 17 janvier 2017 by Zeynep AKCAY

Article 14


Ban on adoption of Russian children by US nationals: violation


On 13 July 2011 the United States and the Russian Federation signed the Bilateral Agreement on Adoption setting out the procedure for intercountry adoption between the two States. It entered into force on 1 November 2012.  By the end of 2012 most of the US applicants had completed all the requisite steps of the adoption procedure prior to submitting the adoption application to a court.

On 21 December 2012, amidst political tensions between Russia and the United States, the Russian State Duma adopted Law no. 272-FZ banning the adoption of Russian children by US nationals. The law entered into force on 1 January 2013.

Consequently, the applicants complained that pursuant to Law no. 272-FZ they had been subjected to discrimination on the grounds of the US applicants’ nationality in breach of Article 14 of the Convention in conjunction with Article 8 pertaining to the right to respect for private and family life.

Law – Article 14 in conjunction with Article 8

  1. Applicability

Article 8 of the Convention does not guarantee the right to adopt.

However, the Court considers that where a State, Russia, granted, to US nationals, an additional right to apply for adoption and subsequently a fair treatment of the respective application, that right falls within the general scope of Article 8 of the Convention as pertaining to their “private life”. Russia, therefore, could not in applying that right take discriminatory measures against US nationals within the meaning of Article 14.

The Court finds the complaint to be admissible.

  1. Merits

The Court finds that there was a difference between the treatment of US applicants and that of other foreign nationals who were candidates for intercountry adoption of Russian children on the grounds of the nationality of the former.

The question for the Court, therefore, is to determine whether the difference in treatment had an objective and reasonable justification.

The Court accepts that, in principle, protecting the children’s interests and encouraging adoption at national level constitute legitimate aims.

In the cases at hand, the Court observes that intercountry adoption is a relatively long and complicated procedure involving multiple stages in both States concerned and requires significant time and effort on the part of the prospective adoptive parents. Moreover, in cases where the procedure was initially aimed at the adoption of a particular child, or after the prospective adoptive parents had met the child at a later stage, it also involves considerable emotional resources as an attachment begins to form between the adults and the child. By the date of the introduction of the adoption ban on 1 January 2013 most of the applicants had met the child they were seeking to adopt, had spent a certain amount of time with them, and had either submitted the adoption application to a Russian court or had completed all the prior stages of the procedure and had their file ready for submission to a court.

Conscious that adoption proceedings do not necessarily guarantee a favourable outcome as the final decision always rests with the domestic courts of the State of the child’s origin. However, in the cases at hand the US applicants had not received a negative decision based on the assessment of their individual circumstances by a competent court. Instead, the adoption proceedings had been brought abruptly to an end on account of the automatic ineligibility that unexpectedly came into effect over the course of ten days. No consideration was given to the interests of the children concerned.

The Courts considers that the Government have failed to show that there were compelling or very weighty reasons to justify the blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the United States, irrespective of the status of the adoption proceedings already started and their individual circumstances. It, thus, constituted a disproportionate measure in relation to the aims stated by the Government.

The Court, unanimously, concludes that the difference in treatment was discriminatory in breach of Article 14 in conjunction with Article 8.

Article 41

Just satisfaction

The Court awarded 3,000 euros to each applicant for non-pecuniary damage.

Zeynep AKCAY

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