European Court of Human Rights

Information Note on the Court’s case-law No. 162

April 2013

Ageyevy v. Russia - 7075/10

See: [2013] ECHR 346

Judgment 18.4.2013 [Section I]

Article 8

Positive obligations

Article 8-1

Respect for private life

Failure adequately to investigate unauthorised disclosure of confidential information or to protect reputation and right to be presumed innocent of parent suspected of child abuse: violations

 

Respect for family life

Revocation of adoption while criminal proceedings for suspected child abuse were still pending: violation

Failure adequately to investigate unauthorised disclosure of confidential information or to protect reputation and right to be presumed innocent of parent suspected of child abuse: violations

 

Facts - In 2008 the applicants, a married couple, adopted two small children (a boy and a girl). Following an incident on 20 March 2009 in which the boy was badly burnt at home and had to go to hospital for treatment, the authorities took the children into care as they suspected abuse. According to the applicants, their son had been scalded when he knocked over an electric kettle and had then hurt himself falling down some stairs. They challenged the removal order before the domestic courts, but it was eventually upheld in April 2009. In June 2009, the couple’s adoption of the children was revoked by the district court, which based its decision in particular on a finding that the parents had failed to look after the children’s health - relying on a medical report from the hospital indicating that both children had a number of untreated illnesses - and on the fact that a criminal investigation had been lodged against the applicants in respect of the injuries sustained by the boy. The decision to revoke the adoption was upheld in August 2009.

In November 2010 the first applicant was acquitted of the charges against him; the second applicant was convicted of the offences of non-fulfilment of duties relating to the care of minors and of the intentional infliction of mild harm to health. She was sentenced to one year and eight months’ correctional work (which meant that during that period she had to pay 15% of her salary to the State).

In their application to the European Court the applicants complained under Article 8 of the Convention of the sudden removal of their adopted children, of the revocation of the adoption of being refused access to the children for some fourteen months. They further alleged a breach of their privacy on account of: the conduct of hospital officials who provided journalists with access to their son and with photographs and medical information about him, of the unauthorised disclosure of confidential information concerning their son’s adopted status in the media and of a failure by the domestic courts to protect the second applicant’s reputation against factually incorrect and defamatory media reports.

Law - Article 8

(a)  Removal of the children - The removal of the applicants’ children in March 2009 had constituted an interference with the applicants’ right to respect for their family life. The interference had been in accordance with the law: although the applicable legislation was couched in rather general terms and conferred a certain measure of discretion on the authorities, the circumstances in which it could be necessary to take a child into public care were so variable that it would scarcely be possible to formulate a law to cover every eventuality. That being so and since the removal order had been reviewed by the courts at two levels of jurisdiction, the scope of the discretion was reasonable and acceptable to satisfy the quality of law requirement for the purposes of Article 8. The measure pursued the legitimate aim of protecting health and morals and rights and freedoms.

The measure had also been necessary in a democratic society. Given that their primary task was to safeguard the interests of the children, the authorities could reasonably have considered that it was in the children’s best interests to be placed in care pending the outcome of the criminal investigation into the events of 20 March 2009. The decision had been reviewed by two levels of jurisdiction, which had considered all relevant circumstances and the applicants had been represented by counsel and able to state their case and contest evidence in those proceedings.

Conclusion: no violation (unanimously).

(b)  Revocation of the adoption - The decision to revoke the adoption had interfered with the applicants’ family life. The measure was in accordance with the law despite the general terms in which the legislation was couched since, as with care orders, the circumstances in which it could be necessary to revoke an adoption were too variable to make it possible to formulate a law to cover every eventuality and the domestic case-law provided additional guidance on this question. The interference had also pursued a legitimate aim.

However, it had not been necessary in a democratic society. Although the domestic courts had given relevant reasons for their decision to revoke the adoption, they had failed sufficiently to justify them for the purposes of Article 8 § 2. The domestic courts had relied on two main grounds, namely (i) an alleged failure to look after the children’s health, and (ii) the presence of injuries on the boy’s body and the related criminal investigation. However, their assessment of these grounds was manifestly superficial consisting of a simple enumeration of the diseases the children had been diagnosed with or a description of the injuries, without any explanation of their origin or any examination of the extent to which the applicants were responsible. While the suspicion of child abuse had justified the children’s temporary removal, that suspicion alone was not sufficient, absent other weighty reasons, to justify the far-reaching and irreversible decision to revoke the adoption. There had been no assessment of the family bonds that had been established between the applicants and the children and the potential emotional damage to them that might result from breaking those bonds. The criminal proceedings had in fact ended with the first applicant’s acquittal and the second applicant’s conviction of non-fulfilment of duties only in respect of the incident of March 2009, while all other charges had been dropped. Accordingly, the court decisions revoking the adoption had not been sufficiently justified.

Conclusion: violation (unanimously).

(c)  Lack of access to the children - The decision to revoke the adoption had stripped the applicants of their legal right to see the children and they were denied access for over fourteen months. The Court had already found that the authorities had failed to advance relevant and sufficient reasons to justify such a drastic measure that severed all links between the applicants and their adoptive children. There had thus been a violation on account of the applicants’ lack of access during the period in question.

Conclusion: violation (unanimously).

(d)  Conduct of the hospital officials - The Court found it established that: doctors and officials of the hospital had taken photographs of the applicants’ son for non-medical purposes and passed them on to the assistant of a member of the Duma, and that they had informed several media crews of the boy’s identity and given them direct access to him and to medical information concerning his condition. This constituted interference with the applicants’ right to respect for their private and family life. All these actions had been taken without seeking the authorisation of, or informing, the applicants. Since the relevant authorisations had been given by the head of the hospital in his capacity as an official under the authority of the Department of Healthcare of the City of Moscow, the respondent State’s responsibility was engaged. However, in their submissions to the Court, the Government had failed to demonstrate that these actions had any basis in the domestic law.

Conclusion: violation (unanimously).

(e)  Unauthorised communication of confidential information - The applicants’ allegations accusing the State of disclosing confidential information about a minor’s adoption status to the media had not been substantiated, so that part of the application was rejected as being manifestly ill-founded.

Nevertheless, their allegations had been supported by prima facie evidence and concerned fundamental values and essential aspects of private life where effective deterrence was indispensable, primarily through criminal-law provisions and their application through effective investigation and prosecution. Although the actions complained of were criminal under the domestic law, it had nevertheless taken the authorities more than a year to react to the applicants’ complaint. Subsequently, without questioning the most obvious potential witnesses, they had later decided to suspend the investigation because the perpetrators had not been identified. Although that decision was later quashed, the investigation did not appear to have advanced since. The authorities had thus failed to effectively investigate the unauthorised disclosure of the confidential information.

Conclusion: violation (unanimously).

(f)  Alleged failure to protect the second applicant’s reputation and private and family life - The second applicant complained that the domestic courts’ had failed to protect her reputation in defamation proceedings she had in respect of media reports describing her alleged ill-treatment of her son. Her complaint about the reports, in which she could be identified, fell within the scope of her “private life” for the purpose of Article 8. The Court was prepared to accept that the subject matter - involving a suspicion of domestic violence in respect of an adopted child - could be considered important to the public. However, any reporting about the incident should have taken into account the second applicant’s right to be presumed innocent and the fact that the incident concerned a private person in a purely private context. Instead, the articles had made premature, factually incorrect and defamatory assessments and the material had been presented in a sensational manner. It was not evident that the domestic courts in the defamation proceedings had attached any importance to her right to be presumed innocent. Nor had they examined closely whether the journalists had acted in good faith and had provided reliable and precise information in accordance with the ethics of journalism. Even though nothing in the case-file suggested that the journalists had not been acting in “good faith”, they had obviously failed to take the necessary steps to report the incident in an objective and rigorous manner, trying instead either to exaggerate or oversimplify the underlying reality. In these circumstances, the Court was not convinced that the reasons advanced by the domestic courts regarding the protection of the freedom of expression of the media company had outweighed the second applicant’s rights to have her reputation and right to the presumption of innocence safeguarded.

Conclusion: violation (unanimously).

Article 41: EUR 25,000 to the first applicant and EUR 30,000 to the second applicant in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

 

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