Information regarding the regulatory resolution of the Constitutional Court
(№ 18 dated 1 June 2023)
The Constitutional Court has considered a citizen's appeal to verify the constitutionality of the fifth paragraph of point 3 of the Supreme Court's normative decision № 2 of 31 March 2016 (hereinafter - the SC ND).
According to the SC ND, an imperative requirement has been introduced that the conclusion of a molecular genetic examination must be attached to an application to a court for the adoption of a child in respect of whom paternity has been established by the applicant's spouse and that the application must be returned if this rule is not complied with.
According to the subject of the appeal, the norms of Chapter 33 of the Code of Civil Procedure (hereinafter - CCP) and Chapter 13 of the Code of 26 December 2011 ‘On Marriage (Matrimony) and Family’ (hereinafter - the Family Code), regulating issues and procedures of adoption, do not contain such a mandatory requirement to apply to the court with an application for adoption. The subject of the appeal considers that the SC ND does not provide an explanation, but rather establishes a non-statutory ‘unreasonable and unnecessary requirement’ for recourse to the courts.
The Constitutional Court considers that the peremptory nature of the provision on the return by the court of a citizen's application for the adoption of a child if the results of a molecular genetic examination are not submitted as an annex to the application to the court, restricts access to justice, thus violating the right of citizens to judicial protection of their rights and freedoms. The absence of such an expert examination in the materials attached to the application does not deprive the court of the right to order it in the course of judicial proceedings in order to protect the rights of the child and to obtain evidence with scientific certainty confirming the descent of the child from a particular person. The legal position of the Supreme Court, which recognises the conclusion of molecular genetic expertise as one of the necessary proofs of paternity (maternity), contributes to strengthening the evidentiary basis of court decisions and serves to protect the rights of the child. However, the imperative requirements to attach a molecular genetic examination report to an application to a court for the adoption of a child in respect of whom paternity has been established by the applicant's spouse and to return the application if this rule is not complied with do not comply with paragraph 2 of Article 13 of the Constitution.
The Constitutional Court found the fifth paragraph of point 3 of the SC ND to be unconstitutional.