ECtHR - Slivenko v. Latvia

The applicants, a mother and daughter, are of Russian origin and lived in Latvia. They were deported from Latvia and detained in the process. The husband and father of the applicants was a retired Soviet officer, ordered to leave Latvia together with his family in accordance with the Latvian-Russian treaty on the withdrawal of Russian troops following Latvian independence. The Court found that ordering the applicants’ deportation failed to consider their individual circumstances and the private life they had built in Latvia and violated their Article 8 right to respect for private life.

Case name (in original language)
Slivenko v. Latvia
Case status
Decided
Case number
48321/99
Citation
European Court of Human Rights, Slivenko v. Latvia (application no. 48321/99), 9 October 2003
Date of decision
State
Court / UN Treaty Body
European Court of Human Rights
Language(s) the decision is available in
English
French
Applicant's country of residence
Latvia
Relevant Legislative Provisions

European Convention on Human Rights:

  • Article 8
  • Article 14
  • Article 5(1)
  • Article 5(4)

Domestic:

  • Citizenship Act of 22 July 1994 (Pilsonibas likums)
  • Status of Former USSR Citizens Act of 12 April 1995 (Likums Par to bijušo PSRS pilsonu statusu, kuriem nav Latvijas vai citas valsts pilsonibas)
  • Asylum Act of 7 March 2002 (Patveruma likums)
  • Stateless Persons Act of 18 February 1999 (Likums “Par bezvalstnieka statusu Latvijas Republika”)
  • Aliens and Stateless Persons (Entry and Residence) Act of 9 June 1992 (Likums “Par arvalstnieku un bezvalstnieku iecelošanu un uzturešanos Latvijas Republika)
  • Code of Civil Procedure

    The Latvian-Russian Treaty on the Withdrawal of the Russian Troops 30th April 1994

    Facts

    The first applicant (the mother) was born in Estonia in 1959 into the family of a USSR officer and moved at one-month old to Latvia with her parents. In 1981 she had a daughter, the second applicant, with her husband. After Latvia regained independence in 1991, the applicants were registered as ‘ex-USSR’ citizens in the register of Latvian residents, and became stateless.

    The husband was a USSR officer stationed in Latvia. He was discharged from the army in 1994. He applied for a temporary residence permit on the basis of his marriage to a permanent resident. This was refused on the grounds that the 1994 Latvian-Russian treaty provides that former USSR/Russian officers in service before 1992 must leave, together with their family. A disagreement about his date of retirement arose in court. The Latvian government stated that when the first applicant requested entry in the registrar, she submitted false information about her husband’s profession. The applicants’ registration was therefore annulled.

    The deportation of all three family members was ordered in 1996 and they were evicted from their home in Latvia. The husband moved to Russia while the applicants remained in Latvia. The applicants challenged their removal from Latvia before the courts, who found that annulling the applicants’ registration was a lawful decision.

    In October 1998 the applicants were placed in an immigration detention centre. The applicants were released a day later, on the grounds that their arrest was premature as the first applicant had lodged an appeal against the deportation order. They were later ordered to leave the country. The second applicant was also detained for 30 hours in March 1999.

    In July 1999 the applicants moved to Russia to join their husband and father and adopted Russian citizenship as former nationals of the USSR. The deportation order prevented the applicants from returning to Latvia for 5 years and limited the time they could visit the country for to 90 days per year. The first applicant’s parents remained in Latvia and were seriously ill.

    Decision & Reasoning

    Article 8

    The Court found a violation of Article 8 ECHR. The Court considered that the first applicant had moved to Latvia at one-month old, attended school, worked and was married in Latvia, and lived there until she was 40 years old. The second applicant was born in Latvia and lived there until she was 18 years old, completing secondary education there. Both applicants thus had personal, social, and economic ties that constituted a private life in Latvia. The Court also noted that they lost their flat where they had lived. The applicant’s removal from Latvia therefore was an interference with their private life and home.

     “They were thus removed from the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of every human being.” Para96.

    The Court considered however that the family unit itself was not broken up. The removal concerned all three family members and the Convention does not contain a right that allows choosing which country to continue or re-establish a family life in. The Court found that the first applicant’s parents were not part of the core family unit.

    The removal of the applicants was held to be in accordance with the law under the treaty on the withdrawal of Russian troops. Although the treaty was not in force when the applicants registered as ex-USSR citizens, it was reasonable to foresee that the applicants would be affected by the treaty, and the decisions of national courts were not arbitrary.

    The Court found that the treaty had a legitimate aim, in that it was in place to protect national security. The Court commented that the removal measure did not interfere with the family unit, and that the withdrawal of servicemen and their families may be considered normal in this profession, but the presence of active servicemen of a foreign army may be seen as incompatible with the sovereignty of Latvia as an independent State.

    The Court then considered whether the removal measures were justified. The Court found that when the general order to remove foreign service men and their families was in put in place, the authorities had not considered what risk to national security or the public interest was posed by individuals in family units. A scheme that aimed to withdraw foreign troops and their families was not incompatible with Article 8, but implementing such measures without considering individual circumstances was incompatible with Article 8.

    Given that the applicants did have a private life in Latvia, were integrated in society, and were members of the first applicant’s father’s family (who was an ex-serviceman retired in 1986 and not considered a national security risk), then the applicants could not be considered a risk to national security. The applicants’ removal then could not be regarded as having been necessary in a democratic society.

    Having regard to all the circumstances, the Court considers that the Latvian authorities overstepped the margin of appreciation enjoyed by the Contracting Parties in such a matter, and that they failed to strike a fair balance between the legitimate aim of the protection of national security and the interest of the protection of the applicants' rights under Article 8. Therefore, the applicants' removal from the territory of Latvia cannot be regarded as having been “necessary in a democratic society” Para 128

    Partly dissenting, Judge Kovler stated “In my humble opinion… the Court has narrowed the concept of “family life” by taking it to cover ties within the “core family” only.” He commented that the Court has opted for a traditional concept of a family that does not take into account the ‘sociological and human aspects of contemporary European families.’

    Article 14

    The Court found it unnecessary to rule on Article 14 ECHR.

    Article 5(1)

    The Court found no violation of Article 5(1) ECHR. The Court noted that the arrest warrants were lawful and prescribed by law. The police warrants for both applicants set out the domestic legal basis for the arrest. The police did in fact acknowledge that the first arrest was ‘premature’. However, the Court said (para 149) that “certain flaws in a detention order does not necessarily render the concomitant period of detention unlawful within the meaning of Article 5(1)… and this will be true, in particular, if, as in the present case, the putative error is immediately detected and redressed by the release of the persons concerned.” The Court also stated that there was no evidence suggesting that the police acted arbitrarily, thus the detention of the applicant’s was lawful.

    Partly dissenting, Judge Kovler disagreed that when considering the lawfulness of a deprivation of liberty, protecting individuals from arbitrary actions by a government is crucial, particularly in the case where said individuals were women, and one was a minor.

    Article 5(4)

    The Court found it unnecessary to rule on this complaint as the applicant’s were released quickly before a judicial review of their detention could take place. Even if the detention order may have been premature, it was remedied by a speedy release.

    Outcome

    Violation of Articles 8 and 5(1) ECHR. Unnecessary to rule on Articles 14 and 5(4).

    The Court awarded each applicant EUR 10,000 for non-pecuniary damage.

    Caselaw cited

    Fox, Campbell and Hartley v. the United Kingdom judgment (30 August 1990, Series A no. 182)

    Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31

    X v. Germany, no. 3110/67

    Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94

    Gül v. Switzerland, judgment of 19 February 1996

    Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX

    Dalia v. France, judgment of 19 February 1998

    Cyprus v. Turkey [GC], no. 25781/94, § 175, ECHR 2001-IV

    Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II

    Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, pp. 1862-63

    Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, pp. 753-54

    Third party interventions

    The Russian Government intervened as a third party in this case.

    Article 8

    The Russian Government submitted that the removal of the applicants was not required by the Latvian-Russian treaty because their husband and father had been discharged in 1994. The treaty had not concerned persons who had been discharged from the armed forces before its signature and entry into force. Furthermore, the applicants had completely integrated into Latvian society and there had been no formal or other differences in the applicants' status compared with that of other USSR citizens living in Latvia at the time. Any distinction of the applicants' legal status in Latvia as a result of the political changes in 1991 had therefore been completely unjustified.

    In any event, the interference with the applicants' rights as a result of their removal had pursued no legitimate aim within the meaning of Article 8(2), and had not been necessary in a democratic society as there was no evidence showing that the husband or the applicants could have caused any damage to the interests of security, safety, public order or the economic well-being of Latvia.

    Article 14

    The Russian Government submitted that the difference in the treatment in Latvia of former Soviet or Russian military officers and their families on the one hand, and of other Russian-speaking residents of Latvia on the other hand, was not justified by Article 14. The applicants' removal had been the result of “ethnic cleansing” by the Latvian authorities.

    Article 5(1)

    The Russian Government stated that the applicants' detention on 28-29 October 1998 and the second applicant's detention in March 1999 had been arbitrary and unlawful in that there had been no court order authorising detention of the applicants, and no reason had been indicated by the Latvian authorities to justify the detention. In addition, the detention of the second applicant, a minor, in March 1999 had been unlawful in that she had had no legal capacity at the time, and should not have been expelled or detained separately from the first applicant.

    Article 5(4)

    The Russian government agreed that the applicants had no possibility to contest the lawfulness of their detention under Latvian law.