PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE KOVLER

(Translation)

1 . As regards Article 8 of the Convention

Although I share the majority ' s opinion that there has been a violation of Article 8 § 1 of the Convention, I should nevertheless like to clarify my position on the alleged interference with the applicants ' “family life”, a complaint which the Court has dismissed in its reasoning.

In my humble opinion, in paragraph 97 of its judgment the Court has narrowed the concept of “family life” by taking it to cover ties within the “core family” only. In other words, the Court has opted for the traditional concept of a family based on the conjugal covenant – that is to say, a conjugal family consisting of a father, a mother and their children below the age of majority, while adult children and grandparents are excluded from the circle. That might be correct within the strict legal meaning of the term as used by European countries in their civil legislation, but the manner in which the Court has construed Article 8 § 1 in its case-law opens up other horizons by placing the emphasis on broader family ties.

In the actual text of the Marckx judgment cited in the instant case, the Court observed 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” and concluded that “ ' respect ' for a family life so understood implies 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). To put it another way, the Court could at least have made a more careful distinction between the “family” in the strict legal sense of the term and the broader concept of “family life” set out in Marckx .

Accordingly, the assertion in the present judgment that “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” departs from the case-law referred to above and does not take into account the sociological and human aspects of contemporary European families (I am deliberately leaving aside Muslim and African families since my reasoning relates solely to the geographical area within the Court ' s jurisdiction). Reference may be made, for example, to the Littré Dictionnaire de la langue française , which defines “ famille ” (“family”) as “ l ' ensemble des individus de même sang qui vivent les uns à côté des autres ” (“a group of persons related by blood who live together”). Even if

that concept is not necessarily a legal one, it reflects the perception of those subject to our courts ' jurisdiction.

The restrictive concept of a conjugal family (known as a “nuclear family” in legal anthropology) is becoming obsolete in the light of the obvious changes reflected in family legislation recently enacted in a number of European States. At the same time, the tradition of the “extended family”, so strong in east and southern European countries, is enshrined in those countries ' basic laws. For example, the Constitution of the Russian Federation – the State of which the applicants are now nationals – provides: “Children over 18 years of age who are able to work shall provide for their parents who are unfit for work” (Article 38 § 3). There are similar provisions in the Constitutions of Ukraine (Article 51 § 2), Moldova (Article 48 § 4) and other countries. This means that in those countries the tradition of helping one ' s elderly parents is firmly established as a moral imperative written into the Constitution. Those were essentially the considerations guiding the applicants in their ultimately unsuccessful request to the Latvian authorities not to separate them from their elderly, sick ascendants. “Family life” was plainly inconceivable for them if they were denied the possibility of looking after those relatives. What could be more natural or more humane?

It follows, in my opinion, that the applicants ' removal amounted to unjustified interference not only with their “private life” and “home” but also, and above all, with their “family life”.

2 . As regards Article 5 § 1 of the Convention

I regret that I am unable to agree with the opinion of the majority that there has been no violation of Article 5 § 1 of the Convention in the present case.

I would not have had any complaints about the measures taken to extradite the two applicants, including their arrest, if the Court had not held that their removal from the territory of Latvia had not been “necessary in a democratic society” (see paragraph 128 of the judgment). In the light of the finding of a violation of Article 8 of the Convention, the deportation proceedings, which are covered by Article 5 § 1 (f), are extremely hard to justify in themselves.

While deportation proceedings will often justify depriving a person of his or her liberty on the basis of Article 5 § 1 (f), such a deprivation of liberty must comply with the principle of the “lawfulness” of detention with a view to deportation (see, among other authorities, Chahal v. the United Kingdom , judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1864, § 118); in other words, the individual must be protected from arbitrariness. In my opinion, that requirement is especially pressing in the case of women, one of whom was a minor.

In general, “... under Article 5 of the Convention any deprivation of liberty must be ' lawful ' , which includes a requirement that it must be effected ' in accordance with a procedure prescribed by law ' . On this point, the Convention essentially refers to national law and lays down an obligation to comply with its substantive and procedural provisions” (see Witold Litwa v. Poland , no. 26629/95, § 72, ECHR 2000-III). In the present case the representative of the national authorities stated in a letter to the immigration police that the applicants ' arrest on 28 October 1998 had been “premature” (see paragraph 43 of the judgment). The Court accepted the respondent Government ' s comments that “the immigration authority ' s view may not have been based on a correct interpretation of the applicable domestic law”, which in my opinion does not render the applicants ' arrest entirely “lawful”. The conduct of the two women, who countersigned the warrants for their arrest, proves that they had no intention of absconding or hiding. Seeing that they had a fixed place of residence until they left the country, there were no valid grounds on which the restrictions imposed on them could be justified as being necessary in a democratic society.

The detention of the second applicant (who at the material time had not reached the age of majority) in a camp outside the city on 16-17 March 1999 was even less “lawful” because the respondent Government failed to show that her arrest satisfied the requirements of section 48-5 of the Aliens Act, the likelihood of her “hiding” being more than illusory. It would be illogical to make a “gesture of good will” by releasing a detainee if there really were grounds for believing that she would attempt to hide. Accordingly, the procedure followed, which had no sound basis in the provisions of section 48-5 of the Act, was not “prescribed by law”. The second applicant ' s arrest cannot have been anything other than an act of intimidation designed to exert psychological pressure on her and to hasten the applicants ' departure. Moreover, at the time of her arrest the girl did not have the opportunity to contact a lawyer, or at least her mother, and was forcibly led away into the unknown.

Those are the considerations that have led me to conclude that there has been a violation of Article 5 § 1.