Events
B, who is married to the applicant’s mother.V. he filed a lawsuit in the family court with a request to adopt the applicant. The court; B from the age of six of the applicant.V. and her mother is F.K. that he lives with, B.V.nin decided to grant permission for the applicant’s adoption by stating that the applicant had covered all kinds of educational and maintenance expenses, and that it was in the minor’s best interest to establish an adoption relationship.
Upon notification of the district population directorate to which the decision was sent, the chief public prosecutor’s office stated that an adoption relationship could not be established with the applicant on the grounds that the age Deciency between them was below the limit specified in the law.V. he demanded the Decertification of the adoptive relationship between them. Examining the request, the family court decided to accept the case and cancel the adoption relationship on the grounds that there is no legal requirement that the adopted person must be at least eighteen years younger than the adoptee, on the grounds that there is no legal requirement that the adopted person must be at least eighteen years younger than the adoptee. The appeal filed after the regional court of justice rejected the appeal on the merits was also rejected and the decision was finalized.
The Allegations
The applicant claimed that his right to respect for family life had been violated due to the decision to remove his adoptive relationship.
The Court’s Assessment
The fact that there is at least an eighteen-year age difference between the adop Decedent and the adopted is included as a final and general condition in the law. During the trial process, which is the subject of the concrete application, evaluations were made by the courts of instance regarding the legal regulation regarding the age difference that should be between the adop Decedent and the adopted one. It has been stated by the courts that the age difference in question protects the adoption institution, prevents abuse, and is in accordance with universal reality and the best interests of the child when considerations such as the child’s physical development and the age of marriage are taken into account. The mentioned reasons emphasize the necessity and importance of the general rule.
However, the most important issue in terms of evaluating the concrete application is whether the finality of the regulation on the age difference sought in adoption and the absence of exceptional circumstances in the 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 likely that the precise regulation of the minimum age difference requirement and the fact that no exceptions to the minimum age difference are included in our law will lead to victimization in some mandatory cases where the best interest of the child requires. There are no regulations in the legislation that will be an exception to the rule, specific to discrete situations such as when the age difference is at a reasonable level and the decision to adopt involves a necessity degree of necessity, especially in terms of protecting the superior benefit of the child. This deficiency may constitute a violation 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, starting from the age of four of the applicant, B.V.he knew yi as his father, B.V.b, who continued the care and supervision of the applicant as a father for many years, even by changing the applicant’s surname later.V.taking into account the matters in which nin acquired his surname, the applicant and B.V. it is obvious that the child-parent relationship is actually formed between them on a natural and real level. Dec. On the other hand, B.V. he also claimed that he could not be a biological father due to a traffic accident he had suffered in the process. In addition, the applicant, B in the ongoing and ongoing legal process.V. he claimed many times that it would be in his best interest to establish an adoption relationship with him, and it was determined by the public authorities that adoption would be in the best interest of the applicant and would contribute to the protection of family relations.
The fact that the current rule is final and general, does not include any exceptions, harms the principle of protecting the superior benefit of the child and family life relations, as in the concrete case. In the light of these evaluations, it was concluded that the positive obligations of the state to create legal regulations required by the right to respect for family life were not fulfilled due to the fact that the regulation does not contain any exceptions and does not leave discretion to 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. Due to the determination that the violation was caused by the law and in order to prevent similar violations, it has been decided to notify the decision to the Grand National Assembly of Turkey. Besides, 152 of the Constitution. in accordance with Article 90 of the Constitution, an appeal may be filed with the Constitutional Court for the annulment of the relevant legal provision or. considering that the last paragraph of the article can be applied, there was also a legal benefit in holding a retrial.
The Constitutional Court has decided that the right to respect for family life has been violated on the grounds described.