Decision of the Constitutional Court of the Russian Federation 16 June 2015 N 15-П As to the Constitutionality of Article 139 of the Russian Family Code and Article 47 of the Federal Law “Acts of Civil Status (secrecy of adoption)

25.01.2021

Decision of the Constitutional Court of the Russian Federation 16 June 2015 N 15-П As to the constitutionality of Article 139 of the Russian Family Code  аnd Article 47 of the Federal Law “Acts of Civil Status”

The reason for the constitutional review of the case was the complaint of two Russian citizens G. (mother and daughter), who wanted to gain access to information about the biological parents of the deceased citizen G. who was respectively their husband and father. The complaint was dismissed in part relating to the applicant who is the widow of the deceased person, and accepted in part relating to the applicant who is his daughter.

  1. According to Article 139 of the Russian Family Code, the secret of adoption of a child is protected by law; the judges who delivered the decision on adoption, or the officials who made its civil status registration, as well as persons otherwise aware of the adoption, are required to maintain the confidentiality of the adoption of the child (Para 1); any persons referred to in Para 1 of this article who disclose the secret of adoption of a child against the will of his/her adoptive parents shall be held liable according to the legislation (Para 2).

Article 47 of the Federal Law of 15 November 1997 No. 143-ФЗ “Acts of Civil Status” provides that the secret of adoption is protected by law (Para 1); civil status registrars are not entitled without the consent of the adoptive parent(s) to provide any information about the adoption or to issue documents showing that the adoptive parent(s) are not parents (is not a parent) of the adopted person (Para 2).

The Russian citizens G. (mother and daughter) lodged an action at the Khamovnichesky District Court of the city of Moscow seeking access to archival documents relating to the facts of the adoption and birth registration of the citizen G. (the husband and the father of the applicants respectively) who, as it became known to the applicants, had been adopted by Russian (USSR at the time) citizens after his arrival as a minor child from Spain. The applicants’ action was denied on 10 August 2010. The judicial board for civil cases of the Moscow City Court upheld the judgment on 20 November 2011. The courts, referring to the contested provisions, proceeded from the fact that the secret of adoption is not subject to disclosure and is protected by law.

Thus, the subject of constitutional review is Article 139 of the Russian Family Code and Article 47 of the Federal Law “Acts of Civil Status” which lay down the principles of the secret of adoption.

2.1. The Constitution of the Russian Federation, guaranteeing the right to freely seek, receive, transmit, produce, and disseminate information by any legal means (Article 29, Part 4), secures the right of everyone to privacy, personal and family secrets, and protection of their honour and good reputation (Article 23, part 1) and does not allow the collection, storage, use, and dissemination of information about a person’s private life without his/her consent (Article 24, part 1). It follows that the collection, storage, use, and dissemination of information associated with the breach of the rights to privacy, personal, and family secrets are not allowed.

Article 17 (Part 3) and Article 55 (Part 3) of the Constitution of the Russian Federation lay down that the restriction of rights, including the situation when such a restriction is necessary for the protection of the rights of others, is possible only on the basis of federal law. It is accordingly assumed that one can realize his/her constitutional right to information which affects the privacy of others, only according to the procedure prescribed by legislation, and that the federal legislator is authorized to determine the legal procedures for obtaining such information. At the same time, the Constitution of the Russian Federation suggests the possibility of establishing a special legal regime with respect to certain kinds of information, including a regime restricting free access to it by citizens (Decision of the Constitutional court of the Russian Federation dated the 18th of February 2000 № 3-П)

  1. In accordance with Paragraph 1 of Article 139 of the Russian Family Code, the secret of adoption is protected by law; judges who have delivered a decision on the adoption of a child, or officials who have made a civil status registration of adoption, as well as persons otherwise aware of the adoption, are required to maintain the secret of adoption of the child. Protection by the law of the secrecy of adoption is also provided for in Paragraph 1 of Article 47 of the Federal Law “Acts of Civil Status”.

Access to adoption information is also restricted by Federal Law of the 27th of  July 2006 No. 149-ФЗ “Information, Information Technologies and the Protection of Information” (Article 3 (7) and Article 9 (8)), by Decree of the President of the Russian Federation of the 6th of March 1997 No. 188 which approved the List of Confidential Information, as well as by Federal Law of the 22nd of October 2004 No. 125-ФЗ “On Archival Activity in the Russian Federation”, according to which access to archival documents is limited if they contain information protected by the legislation of the Russian Federation; in particular, restricted access to information about the citizen’s personal and family secrets, his/her private life, as well as information that creates a threat to his/her security, is set for a period of 75 years from the date of creation of such a document (Article 25).

In addition, the legislator provided for measures aimed at ensuring the secrecy of adoption in various fields of law – family law, civil law, civil procedure law, labour law, social security law, and criminal law.

  1. However, the secret of adoption is not a prerequisite for any adoption. Although most often the adoptive parents, while bringing the child into the family, strive to ensure that no one, most of all the adopted child, knows that they are not his/her biological parents; in some situations, they do not. For some adoptive parents, the idea that everyone has the right to know the truth about his/her origin prevails and they may consider it appropriate not to hide from the child that he/she was adopted. There are situations, if a child is mature enough, that he/she remembers his/her blood parents, and adoption is not a secret for him at all. Meanwhile, this does not mean that this fact can be brought to the attention of other persons without the consent of the adoptive parents.

For a minor child, the legislator connects secrecy of adoption solely with the will of the adoptive parents, as specifically mentioned in Article 139 (2) of the Russian Family Code and Article 47 (2) of the Federal Law “Acts of Civil Status.” Accordingly, judges, official employees, and civil status registrars who have disclosed the secret of adoption of the child against the will of his adoptive parents are held criminally liable according to Article 155 of the Russian Criminal Code. Moreover, the adoptive parents may claim compensation for non-pecuniary damages as a result of the disclosure of the secret of adoption, according to Article 151 of the Russian Civil Code.

Thus, the legislator – proceeding from the theory that the disclosure of the secret of adoption may cause moral suffering for a child, affect his/her mental state, and/or impede the process of raising a child – allows such a disclosure solely with the consent of his/her adoptive parents.

4.1. Article 139 of the Russian Family Code and Article 47 of the Federal Law “Acts of Civil Status”, which are the subject of the constitutional review, are applied by courts in cases where an adult person wants to learn about his/her origins after the death of his/her grandparents, as they are interpreted by the courts as involving the disclosure of the secrets of adoption without the consent of the adoptive parents, and the fact that due to their death their consent cannot be received does not alter this interpretation.

Meanwhile, the Constitution of the Russian Federation provides for different levels of guarantees of the right to information and a different degree of its possible restrictions.

By virtue of the requirements of Articles 23 (1) and 24 (1) of the Constitution of the Russian Federation, any information about a person’s private life is confidential in nature, and therefore, in any case, it is information of limited access. The concept of “private life” is a broad one including an area of ​​human activity that relates to a person, concerns only him/her and is not subject to control by society and the state, if it is not unlawful in nature (Decision of the Constitutional Court of the Russian Federation of the 9th of June 2005 No. 248 -O).

Accordingly, only the person himself has the right to determine exactly what information related to his/her private life should be kept confidential, and therefore the collection, storage, use, and dissemination of such information is not allowed without the consent of the person concerned. Thus, according to Article 24 (1) of the Constitution of the Russian Federation, collecting or disseminating information of a private character is allowed only in the manner prescribed by law and only with respect to information officially entrusted to someone else by the person himself/herself. Otherwise, it would lead to an arbitrary intervention in a person’s private life and would narrow the concept of privacy and the scope of guarantees for its protection (Decision of the Constitutional Court of the 28th of June 2012  № 1253-О)

4.2. According to Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

The 1989 UN Convention on the Rights of the Child enshrines the right of the child to know, as far as possible, his or her parents (Article 7 (1)), and the right of the child to preserve his or her identity, including nationality, name, and family relations as recognized by law without unlawful interference (Article 8 (1)).

  1. It does not follow from the Constitution of the Russian Federation that the right of an individual to receive information directly affecting his/her rights and freedoms and consequently allowing him/her to learn about his/her origin (in this case, the origin of the father of an applicant) is not to be exercised.

5.1. In situations of adoption, information about the child’s origin, although it is confidential, may be indispensable to reveal the family’s genetic history and biological relationships that make up an important part of every person’s identity.

Accordingly, the legal possibility of disclosure to the descendants of an adopted person of information regarding his/her adoption after his/her death cannot be considered as failing to meet constitutional requirements.

Judicial control over the decision of a public body to disclose or to refuse to disclose relevant information to the descendants of an adopted person is an important factor allowing a proper balance to be struck.

At the same time, the secret of adoption is a secret of the family community. If adoptive parents failed to express their will to disclose the secret of adoption, their death does not terminate the adoption secrecy regime.

5.2. It is to be noted that access to information about biological origin after the death of adoptive parents does not change the filiation and civil status of the descendants of an adopted person neither does it confer any rights or obligations on the biological relatives of the adopted person.

5.3. Thus, Article 139 of the Russian Family Code and Article 47 of the Federal Law “Acts of Civil Status” which lays down the principle of the secrecy of adoption of a child and relating to the privacy of an individual and his/her family, do not contradict the Constitution as they make judicial control over the disclosure of information about adoption after the death of the adopted person and the adoptive parents to descendants of the adopted person possible.

Having deliberated and referred to Articles 6, 47.1, 71, 72, 74, 75, 78, 79 and 100 of the Federal Constitutional Law “The Constitutional Court of the Russian Federation”, the Constitutional Court of the Russian Federation decided as follows:

  1. To recognise Article 139 of the Russian Family Code and Article 47 of the Federal Law “Acts of Civil Status” as not contradicting the Constitution of the Russian Federation, since these provisions do not impede judicial disclosure of the information on adoption to descendants of the adopted person if such disclosure is necessary for the exercise of their constitutional rights and provided that such disclosure ensures a balance of constitutionally protected values, rights and legally protected interests of the persons concerned.
  2. This interpretation is binding.
  3. Judgments relating to the applicant are to be quashed and to be reheard by the competent court.
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