Politics or Justice? The Fate of Hundreds of Children Lies with the Supreme Court

22 January 2013

By Lev Ponomarev 

Source: Echo of Moscow 

The issue of Americans adopting Russian orphans is now in the hands of the Russian Supreme Court. It is common knowledge that the Supreme Court has twice before given detailed and thorough legal rulings on this issue, in April 2006 and May 2012. The passing of the ‘anti-adoption law’ on 28th December, which contradicts the agreement with the USA on adoption ratified on 1st November (a month and a half before the law was presented to the State Duma), has given rise to a complex legal situation. As is well known, the conditions of this agreement state that it ceases to be valid one year after one of the parties declares its dissolution. This was clearly agreed with the specific purpose of allowing adoption procedures that were already underway to be completed in the event of the dissolution of the agreement.

When Russia announced the dissolution of the agreement, it triggered a unique ‘transition period’, which will last until the beginning of 2014, when the agreement becomes void.

But the Scoundrels’ Law, which was patched together and passed hurriedly, did not make provision for the transition period, which is obligatory when transferring to fundamentally new legal conditions. And now the Russian authorities are faced with a tricky conundrum - the Russian Constitution (Paragraph 4, Article 15) establishes that international treaties or conventions take priority over national legislation. This means that the agreement with the USA on adoption should be followed meticulously for another year.

Following a storm of protests, the Russian government has confirmed that in those cases (several dozen in number) where a decision on adoption has already been made, the orphans will be allowed to go to their new parents in America. But according to the agreement, the fate of a much larger number of orphans, those whose cases are currently being scrutinised by the courts, should also be decided. There is a serious risk that judges, citing the new law, will turn down all new adoptions, despite the fact that, given the priority of international law, this should not be allowed to happen.

Furthermore, using the same legal logic, it should also still be possible to apply to the Russian courts for the purposes of the adoption of a child by American citizens for the remainder of this period. This is especially true since the passing of laws which have a negative effect on people’s human rights is forbidden by the Russian Constitution.

Before they are adopted, children spend a long time talking to their future adoptive parents, and practically become a part of the family. A sudden blow to their hopes often leads children into depression, or even to suicide attempts. Russia is simply obliged to avoid this on the grounds of its positive obligations concerning orphans under Article 2 (the right to life) and Article 8 (respect for family life) of the European European Convention on Human Rights and Fundamental Freedoms.

The fact that Article 6 of the anti-adoption law provides for the possibility (and even directly requires) that the state prevents adoption in countries where the Magnitsky Law has been passed is crucially important. Courts will therefore be acting in circumstances when adoptions that are currently in progress will be affected by sudden changes in the political sphere.

And the Russian Supreme Court has now been asked to solve all of these extremely complex problems.

The wording of the Russian legislation prevents citizens, NGOs and ombudsmen from going directly to the Constitutional Court regarding compliance of the Scoundrels’ Law with the Russian Constitution. However, a lot has already been said about the anti-constitutional character of many of this law’s provisions. Therefore, on 16th January, the Moscow Helsinki Group sent a petition to Chair of the Russian Supreme Court Vyacheslav Lebedev, requesting that he ask the Plenum of the Russian Supreme Court to provide clarification to judges and other law enforcement authorities concerning the enforcement of the law related to adoption in the period before the inter-governmental agreement becomes invalid in cases where adoption procedures have not yet been completed, or in cases begun during the transition period.

Human rights activists have stated that, in their opinion, “the courts should not change their view in any specific cases where an adoption is already under consideration, and also in those cases that would go to court before the expiry of the agreement with the USA, following the denunciation of the agreement by Russia, or in any adoption cases affected by the ban being extended to cover citizens of other countries whilst those cases are in progress, since the Constitution of the Russian Federation unambiguously states that ‘no laws denying or restricting human and civil rights and liberties may be issued” (Articled 55, Section 2)”.

This appeal was prepared by leading Russian lawyers and has been signed by Ludmila Alekseeva (chair of the Moscow Helsinki Group), Boris Altshuler (director of the NGO Right of the Child and member of the Public Chamber of Russia), Vyacheslav Bakhmin, Valery Borshchev (chair of the Moscow Public Monitoring Commission), the lawyer Karinna Moskalenko, Lev Ponomarev (Movement For Human Rights), Mara Polyakova (Independent Council for Legal Expertise), Henri Reznik (president of the Moscow City Bar Association, member of the Public Chamber of Russia), Aleksei Simonov (president of the Glasnost Defence Foundation), Sergei Sorokin, A.B. Petrov, the priest Georgy Edelshtein, the priest Gleb Yakunin, Aleksandr Petrov, Aleksei Golovan (member of the Presidential Council for Civil Society and Human Rights, representative of the Shared Fate charity), Daniil Meshcheryakov (chair of the board of the All-Russia Association of Regional Human Rights Organisations), Viktoria Malikova (World of the Caucasus Foundation for the Development of Culture), Sergei Krivenko (member of the Presidential Council for Civil Society and Human Rights), Liliya Shibanova (GOLOS Association), Vladimir Mironov, Doctor of Legal Sciences, and Sergei Pashin, Professor at the Higher School of Economics.

I hope that the Supreme Court will not succumb to political pressure, and that it will adopt a consistent legal position and defend the rights of hundreds, or even thousands of unfortunate children.