Slivenko V. Latvia

SLIVENKO V. LATVIA

Case / Slivenko v. Latvia, Application: 48321/99
Parties / The first applicant is Mrs. Tatjana Slivenko and the second applicant is Ms. Katrina Slivenko. (Mr. Nikolay Slivenko had filed an application but the Grand Chamber ruled it inadmissible)
Facts / -The applicants are of Russian origin.
- Tatjana Slivenko was born in Estonia but moved to Latvia at age one month, accompanying her father, a former USSR military officer (until 1986), and mother.
-Tatjana married Nikolay Slivenko in 1980. Nikolay was a military officer of the USSR stationed in Latvia since 1977. They had a daughter Karina in 1981.
-Latvia gained independence from the USSR in 1991.
-On January 28, 1992 the Russian Federation assumed jurisdiction over Soviet forces in Latvia.
- On 4 March 1993, Mrs. Tatjana Slivenko, her parents and her daughter were entered in the register of Latvia as ex-USSR citizens. (The Government argued before the Grand Chamber for the first time that the entry in the registry was based on false information provided by the applicants, allegation strongly contested by the applicants.)
-Nikolay Slivenko remained in his military post until 1994 when he was discharged on 2 March 1994. However all the formalities for his leave were completed on 5 June 1994.
- On 31 March 1994, the Russian military authorities submitted to the Latvian authorities a list of the Russian military officers in Latvia (subject to the future removal) including Mr. Nikolay Slivenko, accompanied with a request to prolong Mr. Slivenko and his family’s temporary residence in Latvia.
-A treaty regarding the withdrawal of Russian troops and their family members from Latvia was signed and became effective on 30 April 1994. This treaty retroactively applied to Nikolay since he was in service as of 28 January 1992.
-On 7 October 1994, Nikolay applied for a residence permit in Latvia but was denied due to the specifications of the withdrawal treaty.
- A legal battle ensued in which the Latvian government attempted to evict and deport the Slivenko family while the family members attempted to acquire permanent residence.
- In 1996 Nikolay moved to Russia while the two other applicants remained in Latvia.
- On 20 August 1996, the immigration authorities issued a deportation order in respect of the applicants, order that was served on the applicants on 22 August 1996. The applicants contested the order and on 29 July 1998, the Supreme Court of Latvia ruled that the two applicants (Tatjana and Karina) were subject to the withdrawal treaty of 30 April 1994 due to the fact they were immediate family of a former Russian military officer to which the treaty applied.
- On 28 October 1998 the police arrested the Tatjana and Katrina pursuant to the Supreme Court’s decision that they illegally resided in Latvia and in accordance with domestic law regarding illegal immigrants.
- The two applicants were released on 29 October 1998 due to an order from the Director of the Latvian Citizenship and Migration Authority, which stated that the arrest had been “premature” because Tatjana had lodged an appeal to the Court’s decision.
- On 3 February 1999 the applicants received a letter from the Director of CMA informing them that they must leave Latvia immediately.
- On 16 March 1999 the flat of the Tatjana’s parents (legal Latvian residents) flat had been searched in accordance with the Aliens Act and Karina was arrested and detained for thirty hours in view of her being an illegal resident.
- On 11 July 1999 the applicants moved to Russia to join Nikolay.
-  According to Tatjana her parents are seriously ill and due to her resistance of deportation she was prevented from seeing them for five years and subsequently could only visit Latvia for ninety days per annum.
- During all these years both applicants had developed the social integration in terms of work, social, personal and economic relations that make up family and private life.
Procedure: / -  Date of communication: 28 January 1999
-  27 January 2000 Chamber communicated case to Latvian Government.
-  14 June 2001 Chamber relinquished jurisdiction in favour of the Grand Chamber with no objection from either party.
-  23 January 2002 Grand Chamber declared the application admissible for both Tatjana and Katrina but dismissed the application of Nikolay.
-  Grand Chamber issued its ruling on 9 October 2003.
-  1 partly concurring and partly dissenting opinion
-  2 dissenting opinions
Issues: / -  Did the treaty regarding the withdrawal of Russian troops apply to Nikolay?
-  Did the treaty regarding the withdrawal of Russian troops apply to Tatjana and Katrina?
-  Were the two separate arrests and detentions in accordance with law and provide for option to appeal such detention?
-  Does the removal of the Slivenko family from Latvia violate their right to family life?
-  Does the removal of the Slivenko family from Latvia amount to discrimination?
-  How wide is the margin of appreciation for the State regarding such treaties?
-  Does treaty law have to take into account the specific situations of the individuals to be in accordance with the Convention?
-  Is the retroactive principle applicable to the case related to the implementation of the Treaty?
-  How should the government interpret the meaning of legitimate aim in the scope of social democracy country?
-  How wide is the margin of national security required in transitional situation to make restrictions to the individual or family rights?
-  How wide is the margin of close or nuclear family to be considered?
-  Was the interference with Article 8 justified under Article 8 (2) as being a) in accordance with the law b) as having a legitimate aim c) and as being necessary in a democratic society?
-  Were the applicants subjected to treatment different from that of other Latvian residents having the status of ’ex-USSR citizens’?
-  Do grandparents fall under the immediate family referred to in the Convention?
-  If violations occurred what is the proper remedies in the present case?
Rights: / ECHR: Art. 8 (respect for private and family life) alone and/or in conjunction with Art. 14 (non-discrimination). Art. 5.1 (liberty and security of person) and 5.4 (entitled to take proceedings regarding validity of detention).
Holding and Reasoning: / “The Court had first to determine if the applicants were entitled to claim that they had “private life” “family life” or “home” in Latvia. The Case law of the Court has consistently treated the expulsion of long-term residents under the head of “private life” as well as “family life” some importance being attached in this context to the degree of social integration of he persons concerned.” (Par 95) The Court found that the applicants’ rights to respect for “private life” and “home” had been violated since the applicants were fully integrated members of Latvian society and economy, as well as the fact that they owned a flat in Latvia. (Par 96) “However the removal was not aimed at breaking their family life or had this effect since the Latvian authority removal the whole family in pursuit of the Latvia-Russia treaty and the arguments in regards to the first applicant parents has not been substantiate since they are not part of the core family and no evidence was presented that they were dependent members of the applicants’ family. However the impact of such measures was considered under the head of the applicants’ private life within the meaning of Article 8 (1) of the Convention”.
Under the convention the applicants were not entitled to choose in which of the two countries –Latvia or Russia- to continue or re-establish an effective family life.
The Court considered that the decision was in accordance with the law in the combination of domestic law and the treaty law and that it was foreseeable that the applicants could be subject to the treaty. The Court ruled that the domestic court decision was not arbitrary since it was reasonable to consider that the applicant were subject to the Latvian-Russian treaty.
The violation pursued the legitimate aim of national security considering the specific situation of the country as formerly under USSR control. The measures must be seen in the broader context of the “eradication of the consequences of the illegal occupation of Latvia.” and should be viewed in the wider context of constitutional and international law arrangements made after Latvia regained independence. (Par 111)
Art. 8 however requires possibility of individual exceptions to domestic law which derogates from Art. 8. (Par 122)
The Court ruled that the violation was not necessary in a democratic society based on the reasoning that the State interpreted public interest too abstractly and so did not give appropriate weight to individual considerations. The State unreasonably violated Art. 8.
Art. 8 + Art 14- Since there is a violation of Art. 8 there is no reason to consider it in conjunction with Art. 14. (Par 134)
Art. 5.1- The Court found there had been no violation of Art. 5.1 because the arrest was in accordance with domestic law and legitimate in view of the authorities’ understanding of the legal situation at the time. The Court ruled that the warrants of arrest mentioned the specific law applicable and factual basis underlying the suspicion that the applicants were in Latvia illegally. The applicants knew the reasons for their arrest. The Court considered that the existence of flaws in a detention order does not necessarily render the concomitant period of detention unlawful within the meaning of Article 5 and that in the present case as soon as the error was notice it was immediately dealt with and the applicants were release. The detention had not been of an unreasonable length.
Art. 5.4- The Court ruled there was no reason to consider a violation under Art. 5.4 because the applicants had been released from detention (on 29 October 1998) without needing to recourse to legal channels, therefore the court considered that it was not necessary and not proper to “determine in abstracto” whether the scope of the remedies which available in Latvia would have satisfied the requirements of Article 5 (4) of the Convention. (Par 158)
As for the damages pursuant to Article 41, the Court issued 10,000 EUR in just satisfaction. It did not award the 400,000 EUR asked for by the applicants because there was a violation of Art. 8 in respect for private life and home but not in respect for family life. There was no violation of Art. 5. There were no details concerning the alleged property loss or loss of earnings.
Rules of Law: / -  “Family life” only refers to the nuclear family unit.
-  State margin of appreciation needs to be considered in the wider constitutional and international context.
-  There is no Conventional right of an alien to enter or reside in a particular country. (Par 115)
-  There is consideration for the “family unit” in relation to “family life.”
-  Actions authorities have taken outside the specific circumstances of the case that indirectly comment on a legal attitude toward the specific case must be considered.
-  Art. 8 requires possibility of individual exceptions to domestic law which derogates from Art. 8. (Par 122)
-  The Court can not judge violations that were possible but did not in fact happen (Art. 5.4)
-  “The expression “in accordance with the law” requires that the impugned measure should have basis in domestic law, and it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects.” (Par 100)
-  “The Court points out that the basis for its examination must always be the impugned decisions of the domestic authorities and the legal grounds on which they relied. It cannot take into account any alternative legal grounds suggested by the respondent Government in order to justify the measure in question if those grounds are not reflected or inherent in the decisions of the competent domestic authorities.” (Par 103)
-  “The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. This also applies where international treaties are concerned. The Court function is to review, from the point of view of the Convention, the reasoning in the decisions of the domestic courts rather than to re-examine their findings as to the particular circumstances of the case of the legal classification of those circumstances under domestic law.” (Par 105)
-  “A measure interfering with the rights guaranteed by Article 8 (1) of the Convention can be regarded as being ‘necessary in a democratic society’ if it has been taken in order to respond to a pressing social need and if the means employed are proportionate to the aims pursued. The national authorities enjoy a certain margin of appreciation in this matter. The Court’s task consists in ascertaining whether the impugned measures stuck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other”. (Par 113)
-  “The Court observed that Article 5 (4) deals only with those remedies which must made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, when appropriate, to his or her release. The provision does not deal with other remedies, which may serve to review the lawfulness of a period of detention, which has already ended, including, short-term detention like in the present case.” (Par 158)
Decision: / Violation of Art. 8: eleven votes to six votes
Dismissal of Art. 14: eleven votes to six votes
No violation of Art. 5.1: sixteen votes to one
Dismissal of Art. 5.4: unanimous
Awarding of EUR 10,000: eleven votes to six votes
Dismissal of applicants’ claims for just satisfaction: unanimous
Validity: / Binding on parties.
Dissenting: / Partially concurring partially dissenting: 1 judge: The Court has taken a too narrow view of “family life” and in doing so has violated earlier case-law and negated current trends in European society and lifestyles.
There was a violation of Art. 8 in regards to family life.
Joint Dissenting Opinion: 6 judges: The specific situation of the country of Latvia being formerly under the USSR outweighs the individual interests of the applicants, thus there is no violation of Art. 8.
Dissenting judges reject that any consideration to whether certain individuals were a threat to national security is unnecessary under Art. 8.
The dissenting judges hold that the applicants could not be considered Latvian any more than they could be considered Russian.
In light of the dissenting opinion if Art. 14 had been considered in conjunction with Art. 8 the Court would have found no violation of Art. 14.
Separate Dissenting Opinion: 1 judge sharing views of above Dissenting Opinion: The USSR occupation of Latvia is a war crime and thus the Russian Federation must restore the status quo ante. The judge takes particular issue with the awarding of just satisfaction to the applicants in view of the gross violations of rights the Latvian citizens endured under USSR occupation.

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