Violation Of The Right To Respect For Family Life Due To The Lack Of Legal Regulations To Protect Those İn Exceptional Situations
Events
B.V., who was married to the applicant’s mother, filed a lawsuit at the family court with the request to adopt the applicant. The court stated that the applicant had been living with B.V. and his mother F.K. since the age of six, that B.V. had paid for the applicant’s education and care, and that the minor had an interest in the establishment of an adoption relationship and decided to grant permission for the applicant’s adoption.
Upon the notification of the district population directorate to which the decision was sent, the Chief Public Prosecutor’s Office requested the annulment of the adoption relationship between the applicant and B.V., stating that the adoption relationship could not be established on the grounds that the age difference was below the limit specified in the law. The family court, which examined the request, decided to accept the case and to annul and abolish the adoption relationship on the grounds that the legal requirement that the adoptee must be at least eighteen years younger than the adopter was not met. After the regional court of justice rejected the appeal on the merits, the appeal application was also rejected and the decision was finalized.
Allegations
The applicant claimed that his right to respect for family life was violated due to the decision to abolish the adoption relationship.
The Court’s Assessment
The minimum age difference of eighteen years between the adopter and the adopted is a definite and general requirement in the law. During the proceedings subject to the concrete application, the courts of first instance made evaluations regarding the legal regulation regarding the age difference between the adopter and the adopted. The courts stated that the age difference in question protects the institution of adoption, prevents its abuse, and is in line with universal reality and the best interests of the child, taking into account issues such as the physical development of the child and the age of marriage. The aforementioned justifications emphasize the necessity and importance of the general rule.
However, the most important issue in terms of the evaluation of the concrete application is whether the strictness of the regulation regarding the age difference sought in adoption and the absence of exceptions in the legal regulations constitute a violation of the positive obligation of the state 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 regarding the minimum age difference and the absence of any exceptions to the minimum age difference in our law may lead to victimization in certain mandatory situations where the best interests of the child require it. There is no provision in the legislation that would be an exception to the rule for exceptional situations such as when the age difference is at a reasonable level and the decision to adopt involves a compelling necessity, especially in terms of protecting the best interests of the child. This deficiency may constitute a breach of the State’s positive obligation to establish legal rules that determine and regulate the place of children in the family and society.
In the concrete case, considering the fact that the applicant has known B.V. as his father since the age of four, that B.V. has continued the care and supervision of the applicant as a father for many years, and that the applicant even changed his surname and adopted B.V.’s surname, it is clear that a natural and real child-parent relationship has actually formed between the applicant and B.V. On the other hand, B.V. claimed in the process that he could not be the biological father due to the traffic accident he had suffered. In addition, the applicant has asserted many times during the ongoing legal process that it would be in his best interest to establish an adoption relationship with B.V., and it has been determined by the public authorities that adoption would be in the best interest of the applicant and contribute to the protection of family relations.
The fact that the current rule is definite and general and does not allow any exceptions harms the principle of protecting the best interests of the child and family life relations, as in the concrete case. In the light of these evaluations, it has been concluded that the positive obligations of the state to establish legal regulations required by the right to respect for family life have not been fulfilled, since the regulation does not contain any exceptions and does not leave discretion to the implementers in the face of mandatory situations. It has been concluded that the right to respect for family life has been violated due to the failure to fulfill this obligation and that the violation directly stems from the lack of justified and acceptable exceptions in the regulation on the minimum age difference in Law No. 4721. It was decided to notify the decision to the Grand National Assembly of Turkey due to the determination that the violation arose from the law and in order to prevent similar violations. In addition, it has been deemed legally beneficial to conduct a retrial, considering that the Constitutional Court may be applied to the Constitutional Court for the annulment of the relevant legal provision in accordance with Article 152 of the Constitution or the last paragraph of Article 90 of the Constitution may be applied.
For the reasons explained above, the Constitutional Court ruled that the right to respect for family life was violated.
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