Het recente arrest Martinez Alvarado gaat over een volwassen man uit Peru die door zijn beperkingen volledig afhankelijk is van de zorg van anderen en altijd door naaste familieleden is verzorgd; eerst door zijn ouders en na hun dood door zijn zussen. Er is nog een broer in Peru, maar deze is voor die continue zorg niet beschikbaar.
Het EHRM heeft in dit arrest, over de uitgangspunten voor de beoordeling van de vraag of in zo’n geval sprake is bijkomende elementen van afhankelijkheid tussen hem en zijn verzorgende familieleden, het volgende overwogen:
“As regards the question of the existence or non-existence of “family life”, the Court has held that this is essentially a question of fact depending upon the existence of close personal ties. The notion of “family” in Article 8 may also encompass de facto “family ties” […].
It follows from the Court’s case-law that the question whether “additional elements of dependency” exist is to be decided on a case-by-case basis. The finding of the existence of “family life” based on “additional elements of dependency other than normal, emotional ties” will often be the result of a combination of elements. [...]
In cases where adults had a physical or mental disability or illness of sufficient seriousness and were in need of constant care and support from other family members, the Court has accepted such dependency (see, for instance, Emonet and Others, cited above, §37, in which an adult child became paraplegic after a serious illness; Bierski v. Poland, no. , §47, 20 October 2022, in which an adult child suffered from Down syndrome and was fully incapacitated; Belli and Arquier-Martinez v. Switzerland, no. 65550/13, §65, 11 December 2018, in which an adult child had been deaf since birth, had difficulty speaking her mother tongue and had no capacity of discernment on account of a severe disability which had required comprehensive therapeutic provision throughout her life; and I.M. v. Switzerland, no. 23887/16, §30-31, 9 April 2019, in which an elderly father was completely dependent on his sons because he suffered from serious depression and autism). […]
Depending on the circumstances of the case, the Court has found that financial support could be provided from a distance. […] However, in I.M. v. Switzerland, in which case it had already been established that the applicant was dependent on his adult sons in his daily life for health reasons, the Court held that the fact that family members could contribute financially to him upon his removal, did not call into question the existence of a relationship of dependency between him and his sons.It thus follows from the Court’s case-law that the assessment of whether additional elements of dependency, other than normal emotional ties, have been shown to exist, requires an individualised review of the relationship at issue, and other relevant circumstances of the case”.