Isabelle Desrosiers

The Supreme Court of the Russian Federation refuses to reconsider a judgment on adoption based on fraud documents in the case of a young Russian

Despite their efforts to gain access to an effective national remedy for the illegal adoption of a Russian child, representatives are forced to take yet another case against Russia to the European Court of Human Rights to obtain just reparation

On 27 April 2010, the Supreme Court refused to reopen the case of the illegal adoption of a young Russian child by citizens of the United Kingdom that took place in 2004. By doing so, the highest court of the Russian Federation therefore upheld the 22 October 2009 judgment of the Sverdlovsk Oblast Court that had previously denied the applicants the reconsideration of the judgment on adoption also from 2004.

In 2007, an expertise revealed that the judgment on adoption was based on fraud documents; two written statements announcing the renunciation by the relatives of their rights over the child and their agreement with his adoption by citizens of the United Kingdom. However, not only did the expertise show that their signature was forged, but the facts also demonstrate that they were completely unaware of the proceedings at the time.

As argued before the Sverdlovsk Oblast Court by lawyers of NGO Sutyajnik, representing the relatives (the applicants), this judgment violated the latters' right to family life as guaranteed by Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In addition, it was also brought before the Russian Supreme Court that according to Article 6(1) of the Convention, which protects the right to a fair trial, the applicants had the right to a reconsideration of the judgment on adoption proven to be based on false evidence. The right of the applicants to an effective remedy under Article 13 of the Convention was also argued. Nevertheless, the Sverdlovsk Oblast Court and the Supreme Court refused to consider the Convention-based arguments and denied the reopening of the case.

The argument that was put forward by both the regional court and the Supreme Court is based on the provision of the Russian Civil Procedure Code. They argued that since the applicants were not parties of and didn't participate in the judgment on adoption to begin with, they couldn't under national law legally ask for a reconsideration of the adoption proceedings. The fact that the fraud documents were the reasons why they were not aware of the adoption process and therefore didn't take part in the proceedings was not taken into consideration.

In the hearing before the Supreme Court, Sutyajnik's lawyers then presented a single but well developed argument based on Article 15(4) of the Constitution of the Russian Federation, which clearly states that the guarantees of the Convention should prevail over provisions of national laws such as the Russian Civil Procedure Code. The argument was declared irrelevant, without due analysis and justifications, by the Supreme Court in its written judgment on refusal to reopen the illegal judgment on adoption.

Conclusively, despite the representatives efforts to gain access to a national remedy for the violations of the rights of the applicants, they are now left with one option in order to obtain due reparation; that is to file yet another complaint against the Russian Federation before the European Court of Human Rights (ECHR). Without a doubt, this will raise the complex and sensitive issue of the trade of Russian orphans. Nevertheless, NGO Sutyajnik handling the case before the ECHR is also working to challenge the constitutionality of the Civil Procedure Code's provision before the Russian Constitutional Court.

Once again, this will also not fail to highlight the lack of implementation of the guarantees of the Convention before Russian courts as well as the overload of cases pending before the ECHR. One must recall that as of 1 May 2010, 27,8% of those cases were against Russia.

28.05.2010