26 June 1998 № J-68/98
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin
with the participation of representatives as litigants:
of the House of Representatives of the National Assembly of the Republic of Belarus: N.N. Dubovik - Member of the Standing Commission of the House of Representatives of the National Assembly of the Republic of Belarus on labour, social issues, health protection, physical training and sport; V.I. Zhishkevich - Head of the Management on draft law work, Deputy Head of the Main expert and legal Management of the Secretariat of the House of Representatives of the National Assembly of the Republic of Belarus;
of the Council of the Republic of the National Assembly of the Republic of Belarus: V.V. Bury - Head of the Department on civil, social and economic legislation of the expert and legal Management of the Secretariat of the Council of the Republic
has considered in open Court session the case "On the conformity between part two of Article 116 of the Code of laws relating to marriage and the family of the Republic of Belarus and the Constitution of the Republic of Belarus".
The Court session was attended by: E.M. Tsarenko - Deputy Chairman of the Supreme Court of the Republic of Belarus; I.N. Zhdanovich - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus; O.G. Sergeeva - Deputy Minister of Justice of the Republic of Belarus.
The case was brought by the Constitutional Court of 19 May 1998 as a result of a constitutional motion of the President of the Republic of Belarus on the ground of Article 116 of the Constitution, Articles 5 and 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court of the Republic of Belarus.
Part two of Article 116 of the Code of laws relating to marriage and the family of the Republic of Belarus (Collection of Laws of BSSR, 1969, No. 17, art. 278; 1990, No. 22, art. 451) which envisages that adoption may be carried out without parental consent if they do not reside together with a child for more than six months and without reasonable excuse, in spite of the notice of the bodies of guardship, do not take part in his upbringing and care for, show no parental concern with respect to a child was subject to examination.
The President of the Republic of Belarus in his motion to the Constitutional Court on the verification of the constitutionality of part two of Article 116 of the Code of laws relating to marriage and the family of the Republic of Belarus pointed out that according to Article 113 of the Code of laws relating to marriage and family adoption is carried out by the decision of the executive committee of region, city, district in city Council of deputies at the request of a person who wishes to adopt a child. The motion emphasized that under part four of Article 32 of the Constitution children may be separated from their family against the consent of their parents or persons in loco parentis only according to the verdict of the court of law, if the parents or persons in loco parentis fail in their duty towards their children.
Having heard Mrs V.V. Podgrusha, judge-speaker, representatives of the litigants, examined the materials of the case, analyzed the relevant provisions of the Constitution, the Code of laws relating to marriage and the family of the Republic of Belarus, other enforceable enactments of the Republic of Belarus, Convention on the Rights of the Child and other instruments of international law, the Constitutional Court held the following.
According to Article 112 of the Code of laws relating to marriage and the family the adoption shall be allowed only with regard to the children under age and in their interests.
In accordance with Article 113 of the Code of laws relating to marriage and the family adoption is carried out by the decision of the executive committee of region, city or district in city Council of deputies ( at the present moment - executive and administrative bodies of regions, cities, districts in cities) at the request of a person who wishes to adopt a child. The procedure envisaged by the given Article shall be applied both in instances when the adoption is carried out with the consent of the parents or persons in loco parentis and without such a consent.
For the adoption it is required the consent of the parents who were not deprived of parental rights (part one of Article 115 of the Code of laws relating to marriage and the family). This rule contains some exceptions which allow adoption without consent of the parents.
Part one of Article 116 of the Code of laws relating to marriage and the family stipulates that it is required no consent of parents if they were deprived of parental rights either found to be incapable or absent in place unknown in the order specified in law.
Part two of the given Article determines the conditions when adoption may be carried out without the consent of the parents if they have not been deprived of parental rights, are able i.e. capable to realize their actions, control them and foresee the consequences of their performance and who are not consider to be in place unknown. It envisages that adoption may be carried out without the consent of parents if they do not reside together with a child for more than six months and without reasonable excuse, in spite of the notice of the guardship, do not take part in his upbringing and care for, show no parental concern with respect to a child.
Under part three of Article 32 of the Constitution parents or persons in loco parentis shall be entitled and required to raise their children and to take care of their health, development and education. Basic Law determines that upbringing, care of health of children, their development and education are not only the right but also the duty of parents and persons in loco parentis.
Under part four of the specified Article of the Constitution children may be separated from their family against the consent of their parents or persons in loco parentis only according to the verdict of the court of law, if the parents or persons in loco parentis fail in their duty towards their children.
Judicial procedure of separation of children against the will of parents and parents in loco parentis has been established in the Republic of Belarus with the adoption of the Constitution of 1994 with alterations and addenda made thereto at the republican referendum of 1996.
On the basis of the specified norms of the Constitution the separation of a child from his family without consent of parents is possible if the parents fail in their duty to raise their children, to take care of their health, development, education and this separation is possible only according to the verdict of the court of law.
Adoption in instances envisaged by part two of Article 116 of the Code of laws relating to marriage and the family results in separation of children from their family against the will of the parents or persons in loco parentis. Whereas part four of Article 32 of the Constitution stipulates only judicial procedure of this separation, the Constitutional Court came to the conclusion on the incompatibility of extrajudicial order of adoption, if it is carried out against the will of parents, with the order established by the Constitution.
The procedure of adoption of children envisaged by part two of Article 116 of the Code of laws relating to marriage and the family is determined by Article 113 of the given Code. In this connection the Constitutional Court emphasizes that the specified norms of the Code of laws relating to marriage and the family shall allow the possibility to adopt children against the will of parents or persons in loco parentis by extrajudicial order and that is at variance with Article 32 of the Constitution.
The Constitutional Court found also the provisions of the Code of laws relating to marriage and the family of the Republic of Belarus to be at variance with the instruments of international law ratified by the Republic of Belarus.
According to Article 23 of International Covenant on Civil and Political Rights the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 24 of the Covenant envisages that every child shall have, without any discrimination, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. Each State Party to the present Covenant undertakes to develop the possibilities of judicial remedy (Article 2).
According to Article 9 of the Convention on the Rights of the Child State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
Under Article 137 of the Constitution of the Republic of Belarus the Constitution shall have the supreme legal force.
Under Article 142 of the Constitution the laws, decrees, and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution.
On the basis of the aforesaid and guided by Article 116 of the Constitution, Articles 5, 6, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus", the Constitutional Court
RULED:
1. To find part two of Article 116 of the Code of laws relating to marriage and the family of the Republic of Belarus to the extent that it allows adoption of children without the consent of the parents or persons in loco parentis by extrajudicial order envisaged by Article 113 of the given Code to be at variance with the Constitution of the Republic of Belarus and Convention on the Rights of the Child. To consider this norm to be invalid from the moment of passing of the present Judgment.
2. For the National Assembly of the Republic of Belarus to make necessary amendments to the Code of laws relating to marriage and the family according to the present Judgment.
3. Before making relevant amendments to the Code of laws relating to marriage and the family of the Republic of Belarus under Articles 137 and 142 of the Constitution shall be applied the norm of part four of Article 32 of the Constitution which determines judicial procedure of separation of children from the family against the will of parents or persons in loco parentis.
4. To publish the present Judgment in ten days time from the date of its passing in "Narodnaya Gazeta", "Zvayzda" and in those publications where the enforceable enactments under verification have been published, as well as in "Vedamastsi Natsiyanalnaga skhodu Respubliki Belarus".
5. The present Judgment shall come into force from the date of it passing, shall be final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the