PARTLY CONCURRING OPINION OF JUDGE SPIELMANN , JOINED BY JUDGE KOVLER

( Translation )

1. I share the opinion of the majority in finding a violation of Article 8 of the Convention under the heading of “private life”. However, I do not share the majority ’ s view that the applicant cannot rely on the existence of “family life” between herself and her daughter and that the complaint merit s examination only under the heading of the applicant ’ s “private life” (see paragraph 63 of the judgment).

2. It is true that this very restrictive interpretation of the notion of family life is in line – in the specific sphere of the entry, residence and expulsion of non-nationals – with the case-law established in Slivenko (see Slivenko v. Latvia [GC], no. 48321/99, § 97 , ECHR 2003 - X ).

3. Allowing for this, and still bearing in mind the Slivenko judgment of 9 October 2003, which I am obliged to follow, I cannot in all conscience fail to register my disagreement with this unduly restrictive approach to the notion of family life.

4. The Court has traditionally – in a wide variety of spheres, moreover – adopted a broad construction of the notion of “family life”. As far back as the Marckx case, it emphasised that “ ‘ family life ’ , within the meaning of Article 8, includes at least the ties between near relatives, for instance those between grandparents and grandchildren, since such relatives may play a considerable part in family life ”. The Court went on to conclude that “ ‘ r espect ’ for a family life so understood impl ies an obligation for the State to act in a manner calculated to allow these ties to develop normally ” (see Marckx v. Belgium , judgment of 13 June 1979 , Series A no. 31, p. 21 , § 45; see also Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 221 , ECHR 2000 ‑ VIII ).

5. By way of example I would cite the L. judgment of 1 June 2004, in which the Court accepted that family life could also exist between a child and a parent who had never lived together, if other factors demonstrated that the relationship had sufficient constancy to create de facto family ties (see L. v. the Netherlands , no. 45582/99, § 36 , ECHR 2004 ‑ IV ) [1] . The Court has even gone so far as to say that “family life” can encompass de facto relationships between persons with no ties of kinship (see X , Y and Z v. the United Kingdom , judgment of 22 April 1997, Reports of Judgments and Decisions 1997-11, pp. 629-630 , §§ 36-37) [2] . What counts is whether there are “legal or factual elements indicating the existence of a close personal relationship ” (see L. , cited above, § 37).

6. In paragraph 63 of the judgment the Court notes that the order for the applicant ’ s deportation made in 1995 also related to her daughter , observing that, as both were enjoined to leave the country, the measure could not have had the effect of breaking up their life together. The Court further observes that the applicant ’ s daughter is now twenty-two; she has been legally resident in Latvia since 2001 and has had Latvian citizenship since 2003. The Court finds that, since she is an adult, and in the absence of specific elements of dependency going beyond the normal affective ties, the applicant can no longer rely on the existence of “family life” between herself and her daughter.

7. I do not subscribe to this point of view.

8. Giving precedence to the criterion of dependency to the detriment of that of normal affective ties strikes me as a very artificial approach to determining the existence of “family life”. It seems inconceivable to me that so little importance can be attached to the affective ties between a mother and her daughter that they can fall outside the scope of “family life”.

9. This line of case-law which, admittedly, appears to be confined to the sphere of expulsions, greatly impoverishes the notion of “family life”.