PARTLY CONCURRING OPINION OF JUDGE DEDOV

I joined the majority in the present case because the Court has found a purely technical violation of the Convention, and the amount of compensation awarded is symbolic in comparison with the Court ’ s normal practice. The main argument set out in the judgment is very simple: being at the advanced stage of the adoption proceedings, the applicants had a legitimate expectation of completing the process and being heard by the courts that take the final decision on parental rights. That does not mean that the national court would have granted them parental rights. Not at all. The Court just concentrated on the process, not on the result. So, the Court ’ s approach looks simple, but the circumstances surrounding the present case are extremely complex and that makes the decision-making quite difficult. I will look at those circumstances to see whether they prevent the Court from using that approach and finding a violation of the Convention.

Is the Convention applicable?

According to the case-law, the Convention (Article 8) does not guarantee either the right to found a family or the right to adopt (see paragraph 377 of the judgment). To overcome this obstacle the Court uses a so-called “broad concept” of private life which encompasses, inter alia , the right to establish and develop relationships with other human beings, the right to “personal development” or the right to “self-determination” with elements like gender identification, sexual orientation and sexual life (see paragraph 379 of the judgment). This argument of the Court is futile as none of those elements corresponds to the nature of the present case.

The nature of the present case is quite concrete. The applicants seek to create parental (or, in a more general sense, family) relationships through the adoption proceedings. The national authorities assessed their capacity to create a family atmosphere for the children and to take care of them. Family life is determined not only by a biological link. It can be established through adoption on a lawful basis. Obviously, the applicants and children wanted to create a family on the basis of adoption proceedings set out by national law. I cannot agree with the Court ’ s conclusion in paragraph 410 of the judgment that it was a substantive right which existed in Russian law prior to the ban introduced by Law no. 272-FZ (hereafter “the Law”), as though the procedural right (to adopt) was magically converted into a substantive right (to respect for family and private life).

It could be said that the applicants had an arguable claim, as they had received a positive assessment by the authorities of their individual circumstances at the preliminary stages, and had created emotional bonds with the children. The applicants were not in an unlawful situation and had demonstrated good faith and no abuse of process, so they were entitled to complete the process. The principle declaring that adoption is not guaranteed under Article 8 of the Convention merely means that the Court is not authorised to require the authorities to grant parental rights to the applicants.

The authorities respect the right to adopt in principle. They just banned this right for certain nationals. Therefore, Articles 8 and 14 of the Convention are applicable. However, the Court did not examine either Article 8 separately (from a procedural perspective at least) or Article 14. The latter does not fit regarding the proportionality test or procedural limb (which was exactly what the Court did in the judgment) or the legitimate expectations. Nor is there any analysis of the discrimination itself. These errors relate to the administration of justice, but not the outcome – in fact a violation of the procedural limb of Article 8.

As the national court has the ultimate authority to grant parental rights in the adoption proceedings, and most of the applicants had an arguable claim, but have been deprived of an examination of their adoption cases on the merits, the issue of access to the court also arises in the present case. This means that Article 6 § 1 of the Convention is applicable, and that the violation is fundamental with respect to the rule of law and democracy. But again, I would emphasise that the violation is technical, not structural. The above principles are recognised by the Russian judiciary and law-makers. They knowingly applied a blanket ban.

Proportionality

From the perspective of the proportionality test, I must say that a blanket ban is in principle incompatible with the rule of law and the principle of proportionality. This measure as such cannot be accepted in a democratic society. The Court ’ s usual approach of examining the necessity of the measure (“whether the measure was necessary in a democratic society”) does not add anything to the proportionality test as the latter should answer another question: whether the measure is enough to strike a balance between public and private interests? I must say that the impugned measure was necessary for the reasons set out below (presuming that other measures should have priority over inter-country adoption). However, apart from general measures, private interests based on a lawful procedure should also be respected. Obviously, the blanket ban on adoption by US citizens was a message (rather than a measure) sent by the Russian authorities to the US authorities owing to the political tensions between them. The message was not addressed to individuals, but seriously affected them. Therefore, it is hard to demonstrate any legitimate aim in the present case because the ban was introduced at the time when all the necessary safeguards provided by the Bilateral Agreement were in force.

The Court requires that compelling or very weighty reasons should exist to justify such an exception in the form of a blanket and retrospective ban (in my view, no exception is possible owing to the absolute nature of the proportionality and the legitimate expectations). The Government referred to the tragic incidents that had happened with adopted children, but that reason did not convince the Court, which stressed that the Bilateral Agreement on Adoption addressed that problem and sought to introduce additional safeguards for children before and after adoption (see paragraph 418 of the judgment). Also, the Court pointed out that the Government had not produced any evidence of specific incidents occurring within the short period of time (two months) during which the above-mentioned Agreement was effective.

Legitimate expectations

As regards the legitimate expectations, although this principle was not mentioned explicitly, it constitutes the crux of the present case. The Court stressed that the ban was applied retrospectively and indiscriminately, irrespective of the status of the adoption proceedings (see paragraph 426). This idea has to be based on a right existing under the domestic law. In theory, if there is no right, then there are no legitimate expectations. The Court reiterated that a legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 75, 13 December 2016).

It is true that the present case is an unusual one. There was no interference with the existing right to family or private life, but with the intention to establish family relations in a lawful manner in accordance with the adoption proceedings. Application of the concept of legitimate expectations, not to a substantive, but to a procedural right, with the same degree of scrutiny requires the establishment of general principles. However, the Court did not refer to any of its case-law to address the legitimate expectations in general and this problem in particular. But even if the scrutiny were more lenient, this does not mean that the concept is not applicable at all. It just means, in my view, that the finding of a violation does not guarantee the adoption; in other words, it does not guarantee satisfaction of a claim and ultimately the enjoyment of a substantive right to family life. The Court has concluded that the applicants had prepared documents to be submitted to the national courts, and therefore they had a legitimate expectation of finalising the adoption process.

I must say that the key decisive element in the analysis of the legitimate expectations is that the granting of parental rights by the national court is an integral part of the adoption proceedings. This conclusion can be based on an interpretation of the adoption regulations set out in the Russian Code of Civil Procedure, the Family Code and other federal laws and Government decrees (see paragraphs 304-20 of the judgment). According to the domestic law, the applicants were required to take a number of steps to receive necessary confirmations and documents from various authorities and agencies prior to applying to the national courts.

This means, however, that it is not correct for the Court to use the term “proceedings” in relation to the adoption. Rather, it is a “process”, a term which is more general than the term “proceedings”. It makes the legitimate expectations vague, not concrete, and it makes it very hard to conclude that there has been a violation. However, a conclusion of NO violation is also not easy for those who were at an advanced stage of the adoption process, and not merely deprived of the potential possibility of starting the process.

Discrimination

In paragraph 413 of the judgment the Court simply repeated the applicants ’ submission that the number of tragic incidents with adopted children in the United State of America (“the USA”) had been very small and that there was no evidence that the situation was any better in other States or in Russia itself. Instead of thus repeating the applicants ’ observations (see paragraph 403 of the judgment), the Court should have made its own analysis. Indeed, the situation could be viewed from the opposite angle: there is no evidence that any incidents of the same nature (gross negligence or severe disregard of parental obligations causing the death of the child) happened in other countries with a high adoption rate like Italy and Spain, which rank after the USA, though do not have similar problems to those described by the Russian Government.

Also, it is ethically incorrect to compare the situation in Russia even if it is not “any better”. This case is about international adoption and whether the problems of bad treatment of adopted children in the USA could affect the rights of the particular applicants. I have to conclude that the applicants were not discriminated against in comparison with other foreign nationals and that the Court failed to examine the discrimination claim at all.

Political background

I should make some preliminary remarks before starting an analysis of the political background to the present case. The judges usually prefer not to be involved in politics. This depends, however, on the nature of their involvement. In accordance with Article 21 § 3 of the Convention, judges shall not during their term of office engage in any political activity which is incompatible with their independence or impartiality. This rule does not prevent judges from evaluating the political activity of others if the political decisions or political situation affect human rights and if the interference is subject to a judicial examination in a particular case.

The specificity of a judicial examination does not mean that the scope of review should be a narrow one, and judges are not obliged to close their eyes to the political background. This is also because political activity is not isolated from the universal values of a democratic society. The scope of the judicial examination can be wide enough and deep enough to take into account all factors, elements and circumstances which influenced the interference and which might affect the judicial decision. Moreover, the political background is necessary to discover the “compelling or very weighty reasons” in the present case.

In 2013 the Parliamentary Assembly of the OSCE recognised the political volatility of intercountry adoption (see paragraph 301 of the judgment). Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called “political regime” in Russia and establishment of military bases surrounding Russian territory.

There is widespread opinion that a political conflict between the USA and Russia existed for a long time. I intentionally use the term “conflict” because I think it is more politically correct for a judicial analysis, although political experts usually talk about “the Cold War” to characterise the nature of these relations.

Any political conflict divides people and nations, rather than unites them. Any political conflict is destructive for the rule of law, human rights and democracy, even if the declared purposes of the political pressure are related to the promotion of those values. The truth is that these values can be promoted only in a context of peace and cooperation between governments or non-government organisations. A strategy led by force, however, driven by the idea of the exceptional nature of one nation, or by the idea of “leadership” over all other nations through the application of military power, aimed at securing control over any sovereign decision-making process, inevitably leads to fierce political conflicts which usually arise in the course of a fight for independence and self-determination. [14] .

Unfortunately, in such an atmosphere, every politically sensitive case against Russia is inevitably considered a part of this political conflict. Law no. 272-FZ is no exception. Even if the ban on adoption were not included in the Law, it would in any event be considered to be the result of political tensions between the USA and Russia. Unfortunately, the applicants and the children fell victim to this political conflict.

That political background is also helpful in understanding the hidden motivation of those who promoted the Law: after adoption the children will change their nationality, become US citizens and then, in a situation of political conflict, they will be obliged to consider their home country a potential enemy of their new State. They may or may not participate in that conflict, but it would at least be unreasonable to send children to a country which has applied the political pressure.

This is the main ethical problem in the present case. The right to private life cannot be fully respected if it is not kept away from politics. However, private life in a broader sense cannot be fully separated from State policy, which is a part of social life. Also, any State needs the legitimisation of its actions by society. The tragedy of the present case is that these conflicting ideas caused the enactment of the Law and the organisation of the March Against Scoundrels to protest against that Law. A conflict always arises in the absence of a dialogue.

This is why the blanket ban became possible. The impugned measure was a symbolic reaction to the political pressure. This means that the judgment in the present case is also symbolic and can be considered an effort to cool down those tensions because the children should be kept away from politics and deserve a peaceful life in any country. Although the Government did not raise this issue, such unprecedented political pressure could, in my view, constitute a compelling and weighty reason to stop international adoption in principle.

The question arises, however, whether or not the compelling reasons should prevail over legitimate expectations. They would, in my view, if there were an imminent risk for the most fundamental human rights. In the case of Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 259, ECHR 2016) the Court accepted that where a respondent Government had convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this could amount to compelling reasons to restrict access to legal advice for the purposes of Article 6 of the Convention. This position includes an important element: compelling reasons should be derived from the concrete circumstances of a particular case. The Court concluded that a non-specific claim of a general risk of leaks could not constitute compelling reasons so as to justify the restriction.

In the present case the risk demonstrated by the respondent Government (tragic incidents in the past) was general, not specific. It did not therefore constitute a compelling reason justifying the denial of access to the national courts to examine the adoption cases on the merits and to complete the adoption process. I ought to point out that about 60,000 children have already been adopted by US citizens, so the applicants, who are so few in number, could not add anything to that general risk. Moreover, the risk was still manageable on account of the competence of the national courts.

International adoption

The Convention on the Rights of the Child has recognised that “inter-country adoption may be considered as an alternative means of child ’ s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin” (Article 21). The OSCE Parliamentary Assembly in its Resolution on Inter-country Adoption affirmed the sovereign prerogatives of the participating States to permit, prohibit, restrict or otherwise regulate the practice of intercountry adoptions consistent with international norms and commitments (see paragraph 301 of the judgment). There is no doubt that international adoption is subject to a wide margin of appreciation of any State. Moreover, international adoption is the last resort, to be used in an emergency situation where the children, for any disastrous reasons, are left without their parents and due care.

But there was no large-scale emergency in Russia. I cannot understand the reasons that would allow the State to send hundreds of thousands of children out of the country. Such mass adoption looks like a very well-organised business which made the examination of adoption cases by the national courts purely formalistic. It could be said that if the Russian authorities had seriously examined previous adoption cases, this may have helped to prevent tragic incidents affecting adopted children. Therefore, I do not see any abuse on the part of Russian authorities when enacting the Law to stop mass inter-country adoption.

Again, the authorities should enjoy an extremely wide margin of appreciation as the issue involves identity and nationality and the capability of the national authorities to resolve the problem by themselves, rather than through international adoption. And I am happy to note that after the enactment of the Law the authorities reformed the adoption system in Russia and achieved positive results with more children adopted nationally, intended parents trained on special courses, public child-care institutions concentrating more on creating a family atmosphere, and financial support for families with disabled children.

The impact of international adoption should be limited and precise in nature. I refer to a very useful publication of the UNICEF Office of Research prepared by Nigel Cantwell in 2014, called The Best Interests of the Child in Intercountry Adoption . The book addresses a deep concern regarding how the “best interest” principle is complied with in the context of intercountry adoption. The author notes that his “study contributes to ongoing debates by clarifying important issues and proposing ways forward that would better enable intercountry adoption to fulfil its prime and historic role: as an exceptional protective measure offered to a child for whom adoption is legally possible, warranted and desirable; and when no suitable alternatives exist, or can be created, in that child ’ s own country. Determining best interests needs to be a thorough and well-prescribed process.”

What were the reasons for adoption? It is up to the national judges to put this question to the applicants. The national judges should consider other benefits which the intended parents would be entitled to when they obtain their parental rights, including material or non-material support, and whether there are circumstances proving that the children could be used for other purposes than merely to create family relations, such as tax benefits, whether there is evidence that children (and people in general) of different races could live together as a family, or whether they increase the number of followers of a church.

All these examples are taken from mass media reports. According to Kathryn Joyce ’ s research: The Evangelical Adoption Crusade , published in 2011 with support from the Investigative Fund at the Nation Institute, adoption has long been the province of religious and secular agencies. This research reveals plans by the American evangelical church to obtain 50,000 new followers through adoption after the Haiti earthquake. But again, it is the task of the national courts to review the application for adoption seriously and to establish the sincerity and veracity of the applicants ’ intentions for the best interests of the child.

Best interests of the child

What is in the best interests of a child in terms of adoption proceedings? Merely to have a family? To ensure that biological brother and sister can live together? It would be reasonable to take those circumstances into account in the present case. An individual approach is important, but again the ultimate decision belongs to the national courts, which refused to review the applications for adoption on the merits.

Article 20 of the Convention on the Rights of the Child provides certain safeguards in relation to the problems arising from the circumstances of the present case:

“Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child ’ s upbringing and to the child ’ s ethnic, religious, cultural and linguistic background.”

The above-mentioned safeguards are complex and respect the child ’ s human dignity. This means that the organisers of the March Against Scoundrels were wrong to choose that way of expressing their opinion. Indeed, the family environment is vital for the child, but ultimately the child needs sincere care and love in any environment. It depends on the personality of those who care for the children, regardless of whether that care is provided in a family or in a public institution. But it is necessary to limit inter-country adoption because of the risk of losing the child ’ s ethnic, religious, cultural and linguistic background.

The question arises whether the restitutio in integrum principle requires that the applicants, if they so wish, should be allowed by the authorities to reopen proceedings and to complete the process of adoption. In the best interests of the child – a principle which was explicitly accepted by the Government in the present case – this approach would be reasonable especially concerning those children who are still in orphanages.

However, the most shocking fact for me was that the applicants were not interested in the children ’ s state of health during the adoption proceedings (see paragraph 437 of the judgment). The applicants complained that depriving children of special medical assistance amounted to inhuman treatment prohibited by Article 3 of the Convention (see paragraph 431). They submitted that they were unable to provide specific information with regard to each child (see paragraph 437). The Government argued that the children in question had been receiving and continued to receive appropriate medical support. In my view, this is an important element in the present case because if the applicants were seeking to adopt severely disabled children they should have investigated their health situation as a first priority, but failed to demonstrate that to the Court.

This gives the impression that the applicants were not ready to respond to the questions to be asked by the national court about how they planned to organise health care for the children immediately after the adoption was completed. The applicants did not prepare to satisfy the best interests as required by the Convention on the Rights of the Child. This raises doubts as to whether their intentions to adopt were serious and sincere, but again this issue should have been examined by the national courts.

In lieu of a conclusion

There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously, this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure.

[1] 1. Rectified on 12 December 2017: the text was “ by lawyers from the International Protection Centre based in Moscow, Russia” .

[2] 1. Rectified on 12 December 2017: the text was “10 and 13 January 2013”.

[3] 1. Rectified on 12 December 2017: the text was “ 10 and 14 January 2013”.

[4] 2. Rectified on 12 December 2017: the text was “ Z. ”.

[5] 1. Rectified on 12 December 2017: the text was “ 2013 ”.

2. Rectified on 12 December 2017: the text was “ 2013 ”.

[6]

[7] 1. Rectified on 12 December 2017: the text was “ Florida ”.

[8] 1. Rectified on 12 December 2017: the text was “ Sierra Vista, Arkansas ”.

[9] 1. Rectified on 12 December 2017: the text was “ 42403/13 ”.

[10] 2. Rectified on 12 December 2017: the text was “ 37173/13 ”.

3. Rectified on 12 December 2017: the text was “ 42403/13 ”.

[11]

[12] 1. Williamson and Greenberg, Families, Not Orphanages , at 6 (Better Care Network, September 2010)

[13] 2. Reitz, Adoption: the Best Form of Protection , Vital Speeches of the Day, quoted and cited in Bartholet, Intergenerational Justice for Children: Restructuring Adoption, Reproduction and Child Welfare Policy , Journal of Law and Ethics of Human Rights (2014) at 15.

[14] S ee , among many other sources , State of the Union Addresses by Presidents Bill Clinton, George W. Bush and Barack Obama; Samuel P. Huntington, The Clash of Civilizations 1996; Zbigniew Brzezinski, Strategic Vision: America and the crisis of global power 2012 .