JOINT DISSENTING OPINION OF JUDGES LAZAROVA TRAJKOVSKA AND HAJIYEV

1. We do not share the opinion of the majority in finding no violation of Article 8 of the Convention concerning the applicant’s expulsion, or the majority’s conclusion that the applicant’s expulsion with prohibition from entering Estonia for three years did not amount to a disproportionate interference with his rights guaranteed under the Convention. In our view this approach is not in line with the case-law already established in the cases of Üner v. the Netherlands, (judgment of 18 October 2006, Application no. 46410/99) and Maslov v. Austria (judgment of 23 June 2008, Application no. 1638/03, § 74).

2. In the present case the applicant, HIV-positive and suffering from hepatitis C, was expelled to Russia after the refusal of the Estonian authorities to extend his residence permit following his criminal convictions. He was born, raised and educated in Estonia and had not permanently resided in any other country until his expulsion from Estonia. His only link with Russia was his Russian Federation citizenship granted when he was twenty years old. He had never lived in Russia and had no place of residence or close relatives there. His father, brother and partner V. lived in Estonia, where he has strong family, private and social ties. He speaks Russian and his knowledge of Estonian was graded as “good” at school. The applicant was expelled to Russia on 27 May 2011 and he lived on the street for some time. Some of the medicines he had used in Estonia were not available to him in Russia.

3. In an area of profound changes in Europe, from both a human rights and an economic viewpoint, long-term legal residents have stronger ties with the host country than with the country of their nationality. They participate in the economy by working and paying taxes and they are influenced by the culture, language and education of the host country. As a result of this reality, nationality is defined as a legal and not an effective bond with the country. The Court pointed out that although Article 8 provides no absolute protection against expulsion for any category of aliens, including those who were born in the host country or moved there in their early childhood, regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner § 55 and Maslov § 74). This is the reason why we look at the sum total of the social ties with the community in the host country as part of the concept of “private life”. The concept of expulsion to the country of nationality without any other supporting element is not convincing and leads to interference with the applicant’s private and family life.

4. We find it problematical in the judgment that “the Court does not doubt that the applicant had strong personal ties with Estonia but finds that his family ties were weaker” (§ 87). It is important to note that the fundamental principles that laid the foundations for the Court’s subsequent case-law concerning the application of Article 8 of the Convention to cases involving the expulsion, following conviction, of foreign nationals legally resident in the host country are well established in the Boultif judgment ( Boultif v. Switzerland , no. 54273/00, ECHR 2001 ‑ IX) and have been further developed in the Ãœner case (§§ 54-55 and 57-58) and later in Maslov v. Austria. In these cases, the main emphasis was consistently placed on the “family life” aspect. The Court has adopted a broad approach to the notion of “family life”. In the Marckx judgment it 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” (see Marckx v. Belgium , judgment of 13 June 1979, Series A no. 31, p. 21, § 45). Therefore, the notion of “family life” is much broader than the notion of “family”.

5. The Court has held that there will be no family life between parents and adult children or between adult siblings unless they can demonstrate additional elements of dependence (see Slivenko v. Latvia [GC], no. 48321/99, § 97, ECHR 2003-X). This acknowledgment is even more important as regards the extremely difficult health and social situation of the applicant in this concrete case. The applicant is HIV-positive and suffers from hepatitis C. We consider that at the time when he was expelled, the applicant was in an extremely vulnerable position. The support and help of his family were all the more necessary to him. He stressed that he had close family ties with his father and that because of his own illness and his father’s age they were dependent upon one another. In our view the applicant not only has strong personal ties but also strong family ties with Estonia. His brother and his brother’s family also live in Estonia. The applicant is in a relationship with V. They live together and attempted to marry, but without any success (paragraphs 43 and 44). Family is crucial for stability, support and social integration not only for children but also for adults facing life-threatening instability and uncertainty as a result of health and social problems. In this concrete case Article 8 of the Convention appears to play an enhanced role regarding the notion of family life between a seriously ill dependant adult and his family.

6. Some of the majority’s arguments are particularly problematical in our view, for example that “having applied for, and having been granted Russian citizenship at the age of twenty, the applicant must have identified himself with that country. Thus, the Court is not convinced by the applicant’s argument that he had no ties with Russia. It also appears that his relatives were Russian and that his social circle mainly consisted of persons of Russian origin” (see paragraph 88). In our view, the argument that in applying for Russian citizenship “the applicant must have identified himself with that country” does not lead to the conclusion that he should be expelled from the host country to the country of nationality. According to Article 2 of the European Convention on Nationality, “nationality means the legal bond between a person and a State and does not indicate the person’s ethnic origin”. Furthermore, the fact that he spoke his mother tongue better than the Estonian language and that his relatives in Estonia were Russian and his social circle mainly consisted of persons of Russian origin, is without any relevance for the outcome of the procedure for expulsion with prohibition from entering Estonia for three years. Unlike the majority, we conclude that none of these reasons was sufficient to demonstrate his links with Russia or justify expelling him to Russia, where it is difficult for him to organise his existence and his health care. We think that all these elements were primarily part of his social, cultural and family ties with Estonia, because his father and brother, his Russian relatives and friends and his partner V. all live in Estonia and not in Russia. In the circumstances of his case the support of the community where he was born and raised was of crucial importance.

7. Turning to the nature and seriousness of the offences committed by the applicant, the most important issue to be determined is whether the interference was “necessary in a democratic society”. Similar to our case is the case of Nasri v. France (judgment of 13 July 1995, series A no. 320 ‑ B). The applicant, born deaf and dumb in Algeria, arrived in France at the age of five and was convicted several times, of theft, robbery and gang rape. In 1987, following that last conviction, the Minister of the Interior ordered his deportation. The applicant alleged violations of Articles 3 and 8 of the Convention and the Commission found violations of those Articles. In that particular case, even before the Maslov v. Austria case, the Court placed itself mainly in the context of Article 8. It began by pointing out that the offence at the origin of the deportation decision (gang rape) was very serious, but most of all took into account the applicant’s infirmity and the very special importance of the family’s support in such circumstances. The family’s strong ties with France and the applicant’s lack of social and cultural ties with Algeria led the Court to find a breach of Article 8 ( Nasri § 46).

8. The Court always seeks to strike a balance between the legitimate aim of States to protect the public interest and the fundamental rights of all individuals, even criminals, to a family life. With much regret we disagree that this balance was successfully struck in this case. The applicant was refused an extension of his residence permit after he was convicted of aggravated drug smuggling in Sweden. He was sentenced to two years and four months’ imprisonment for that offence and released before having served the sentence in full. At the same time the Swedish court also applied a seven-year ban on the applicant entering Sweden. In Estonia the applicant has criminal convictions mainly for aggravated hooliganism, aggravated theft and attempted theft, and administrative offences of petty theft and consumption of narcotic substances. Between 2006 and 2009 the applicant was punished seven times for misdemeanours (illegal consumption or possession of narcotic drugs and travelling on public transport without a ticket). Like the majority we are unable to conclude that the acts committed by the applicant can be regarded as “acts of juvenile delinquency” (contrast Maslov , § 81), but in our view, none of his criminal convictions was of a sufficiently serious nature to endanger the interests and constitutional rights of others. We are convinced that instead of expelling him, the authorities could have used other, less severe measures.

9. For all the foregoing reasons, we consider that the decision to expel the applicant in the present case amounted to a disproportionate interference with his rights guaranteed under Article 8 of the Convention.