Violation of the Right to Respect for Family Life Due to the Lack of Legal Regulations to Protect What Happens in Extraordinary Situations
Events
BV, who is married to the plaintiff’s mother, filed a lawsuit in family court with a request to adopt the plaintiff. The court decided to allow the plaintiff’s adoption, noting that the plaintiff had lived with BV and his mother FK since the age of six, BV had paid for the plaintiff’s education and care, and the little boy had an interest in establishing an adoption relationship.
Upon the notification of the district population directorate to which the decision was sent, the Chief Public Prosecutor’s Office requested Decertification of the adoption relationship between the applicant and BV, stating that the adoption relationship could not be established due to the fact that the age difference specified in the law. Examining the request, the family court decided to accept the case and cancel and cancel the adoption relationship on the grounds that there was no legal obligation that the adopted person must be at least eighteen years younger than the adoptee. After the regional court of justice rejected the application for appeal on the merits, the application for appeal was also rejected and the decision was finalized.
The Allegations
Applicant claimed that her right to respect for family life had been violated due to the decision to terminate the adoption relationship.
The Court’s Assessment
Presence of a minimum age difference of eighteen years between the adop Decedent and the adopted is a definite and general requirement in the law. In the trial subject to the concrete application, the courts of first instance have made assessments on the legal regulation regarding the age difference between the adop Decedent and the adopted. The courts have stated that the age difference in question protects the adoption institution, prevents its abuse, and is compatible with universal reality and the superior benefit of the child, taking into account such issues as the child’s physical development and the age of marriage. The reasons mentioned above emphasize the necessity and importance of the general rule.
However, the most important issue in terms of evaluating the concrete application is whether the strict regulation of the age difference sought in adoption and the lack of exceptions in legal regulations constitute a violation of the state’s positive obligation to make legal regulations within the scope of the right to respect for family life. It is possible that the strict regulation of the condition related to the minimum age difference in our law and the absence of any exceptions related to the minimum age difference may lead to victimization in some mandatory situations required by the superior benefit of the child.
There is no provision in the legislation that will be an exception to the rule for exceptional cases such as the reasonable age difference and the adoption decision contains a compelling obligation, especially in terms of protecting the superior benefit of the child. This deficiency may constitute a violation of the positive obligation of the state to establish legal rules that determine and regulate the place of children in the family and society.
Considering that the plaintiff has known BV as his father since the age of four, that BV has maintained the care and supervision of the plaintiff as a father for many years, and even changed the plaintiff’s surname to BV’s surname in the concrete case, it is clear that a real and natural child-parent relationship has actually formed between the plaintiff and BV. Dec. On the other hand, BV claimed during the lawsuit that he could not be the biological father due to the traffic accident he had. In addition, the plaintiff has repeatedly asserted that it would be in his best interest to establish an adoption relationship with BV in the ongoing legal process, and it has been determined by public authorities that adoption would be in the plaintiff’s best interest and contribute to the protection of family relationships.
The fact that the current rule is of a definite and general nature and does not allow any exceptions, as in the concrete case, harms the principle of protecting the superior benefit of the child and family life relations. In the light of these evaluations, it was concluded that the positive obligation of the state to make legal arrangements required by the right to respect for family life was not fulfilled due to the absence of any exceptions in the regulation and the lack of discretion for practitioners in the face of mandatory situations.
It was concluded that the right to respect for family life was violated due to the failure to fulfill this obligation and that the violation was directly caused by the lack of justified and acceptable exceptions in the regulation on the minimum age difference contained in Law No. 4721. In order to determine that the violation is caused by the law and to prevent similar violations, it has been decided to notify the decision to the Grand National Assembly of Turkey. Also, Article 152 of the Constitution. in accordance with Article 90 of the Constitution, an application may be made to the Constitutional Court for the annulment of the relevant legal provision or. considering that the last paragraph of the article can be applied, it was legally beneficial to hold a retrial.
For the reasons explained above, the Constitutional Court has decided that the right to respect for family life has been violated.
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