American families challenge the Dima Yakovlev Law in the European Court of Human Rights

On 22 January 2013, four American families submitted an application to the ECHR asking the Court for urgent communication of their application to the Russian Government. All applicants were in the process of adopting Russian children, but could not finalize it due to enactment of the Dima Yakovlev Law by Russia, prohibiting US citizens from adopting Russian orphans. The applicants claim that by passing this Law Russia violated several Articles of the Convention. They also asked the ECHR to order the Russian Government to amend the respective legislation.

Each of the applicants claim that they had already established relationships with the orphans, and that the children had started calling their future adoptive parents “mom” and “dad.” For these reasons, according to the applicants’ attorneys, each of their applicants have formed a family with these children even without having official authorization from domestic courts for adoption. In the applicants’ view, the Dima Yakovlev Law violates their right to respect for private and family life (Article 8 of the Convention), since it impedes them to be with their future adoptive children.

Further, the applicants claim that this Law contradicts Article 3 (prohibition of torture) and Article 14 (prohibition of discrimination) of the Convention. The applicants also argue that they had no effective remedy to contest the Dima Yakovlev Law in Russia, referring to violation of Article 13 (right to an effective remedy) of the Convention. Though, it will be rather challenging to prove this, since the applicants did not try to apply to the Constitutional Court of the Russian Federation to claim unconstitutionality of this Law. It is likely that the Russian Government will use this argument to contest exhaustion of all domestic remedies by the applicants before lodging their application with the ECHR.

The Dima Yakovlev Law was named after a Russian boy, Dima Yakovlev, who was adopted by Miles Harrison, a US citizen. In July 2008 Dima died, when his adoptive father had left him in a car in boiling heat for about nine hours. The Dima Yakovlev Law was Russia’s response to enactment of the Magnitsky Bill in the United States that imposes certain financial sanctions on Russian officials allegedly responsible for the death of Russian lawyer Sergey Magnitsky and prohibits their entrance to the United States. 

Recent update: On 28 January 2013 the ECHR considered the application of the American families. On 29 January 2013 the complaint was communicated to the Russian Government. The Court asked the Russian authorities to reply to this application no later than 18 February 2013. 

The use of force by the Russian military and the violation of property rights

On 15 January 2012, the ECHR found Russia responsible for destruction of property in Chechnya during an exchange of fire between the Russian military and illegal armed groups in the case of Miltayev and Meltayeva v. Russia. This judgment contradicts conclusions of the domestic courts on the same matter as to the absence of State responsibility.

Both applicants ran a private photo laboratory in Chechnya. In 2001, a skirmish took place between the military and illegal armed groups, and the building where the applicants rented a room for their business was set on fire. As a result, their photo laboratory was destroyed. Reports of the local fire service and other commissions that inspected the site right after the attack indicated that the shelling was the cause of the fire. This fact was also confirmed by documents from the criminal investigation. Eye-witness statements pointed at shooting from a tank as a cause of the fire.

Regardless of the evidence submitted by the applicants to the domestic courts, the latter dismissed their compensation claims against the Russian Ministry of Defense due to the following reasons. First, in the courts’ view the Ministry had acted lawfully, since military operations in Chechnya were authorized by respective Presidential and Governmental Decrees. Second, the applicants had not presented evidence confirming that their property had been destroyed by a “source of increased danger” owned by State agents. The ECHR found the domestic courts’ decisions “arbitrary or manifestly unreasonable” and “irreconcilable with the body of evidence submitted by the applicants.”

In the Court’s view, the evidence presented by the applicants was sufficient to determine the existence of Russia’s interference with their property. The Russian Government did not argue as to the lawfulness, legitimate aim or proportionality of the interference with the applicants’ property. Further, according to the ECHR, the Russian laws that released State agents participating in a counter-terrorist operation from any liability for damage caused are formulated in vague and general terms and cannot serve as a sufficient legal basis for the destruction of an individual’s property. In this respect, the ECHR found that Russia violated the applicants’ right to respect their property (Article 1 of Protocol No. 1 to the Convention).

However, the Court dismissed the applicants’ just satisfaction claims, since the applicants failed to submit their claims to the ECHR within the time-limit after the communication of their complaint to the Russian Government.