Information Note on the Court’s case-law 203

January 2017

A.H. and Others v. Russia - 6033/13, 8927/13, 10549/13 et al.

Judgment 17.1.2017 [Section III]

Article 14

Discrimination

Ban on adoption of Russian children by US nationals: violation

Facts – In December 2012, amidst political tensions between Russia and the United States, the Russian State Duma adopted a law banning the adoption of Russian children by US nationals. The law entered into force on 1 January 2013. In the Convention proceedings, the applicants, US nationals at various stages of the adoption process, complained about this ban.

Law – Article 14 in conjunction with Article 8

(a) Applicability – T he right to adopt was not guaranteed by the Convention. However, where a State had gone beyond its obligations under Article 8 and created such a right in its domestic law, it could not, in applying that right, take discriminatory measures within the meani ng of Article 14. The applicants’ right to apply for adoption, and to have their applications considered fairly, fell within the general scope of private life under Article 8.

(b) Merits – There was a difference in treatment between US applicants and tha t of other foreign nationals on the grounds of nationality. As to whether the difference in treatment had an objective and reasonable justification, the Court accepted that, in principle, the aims stated by the Government of protecting children’s interests and encouraging adoption at national level could constitute legitimate aims.

Intercountry adoption was a relatively long and complicated procedure, requiring significant time and effort on the part of the adoptive parents. In cases where the procedure was initially aimed at the adoption of a particular child, or after the adoptive parents had met the child at a later stage, it also involved considerable emotional resources as an attachment began 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.

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. Ho wever, 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 autom atic ineligibility that unexpectedly came into effect over the course of ten days. No consideration was given to the interests of the children concerned.

The Government had failed to show that there were compelling or very weighty reasons to justify the bl anket ban being applied retroactively and indiscriminately to all prospective adoptive parents from the US, irrespective of the stage of the adoption proceedings and their individual circumstances. It thus constituted a disproportionate measure in relation to the aims stated by the Government.

Conclusion : violation (unanimously).

Art 41: EUR 3,000 each in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

(See E.B. v. France , 43546/02, 22 January 2008, Information Note 104 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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