On the review of the fifth paragraph of paragraph 3 of the normative Resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2016 No. 2 "On the practice of courts applying legislation on the adoption of children" for compliance with the Constitution of the Republic of Kazakhstan
Regulatory Resolution of the Constitutional Court of the Republic of Kazakhstan dated June 1, 2023 No. 18-NP
The Constitutional Court of the Republic of Kazakhstan, composed of Chairman Azimova E.A., judges Eskendirov A.K., Zhakipbaev K.T., Zhatkanbayeva A.E., Kydyrbaeva A.K., Musin K.S., Nurmukhanova B.M., Ongarbaev E.A., Podoprigora R.A., Sarsembaev E.J. and Udartseva S.F., with the participation of representatives:
The subject of the appeal, N., is a legal consultant.,
The Supreme Court of the Republic of Kazakhstan – Judges Almagambetova G.Zh. and Keykibasova Z.B.,
The Prosecutor General's Office of the Republic of Kazakhstan – Advisor to the Prosecutor General Adamova T.B.,
Ministry of Justice of the Republic of Kazakhstan – Vice Minister Mukanova A.K.,
Ministry of Education of the Republic of Kazakhstan – Chairman of the Committee for the Protection of Children's Rights N.Ospanova.;
Commissioner for Children's Rights, Sain A.,
considered in an open meeting an appeal for verification of compliance with the Constitution of the Republic of Kazakhstan of paragraph five of paragraph 3 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2016 No. 2 "On the practice of courts applying legislation on the adoption of children" (hereinafter referred to as the regulatory resolution of the Supreme Court dated March 31, 2016 No. 2).
Having heard the report of the speaker, Judge of the Constitutional Court of the Republic of Kazakhstan Udartsev S.F., having studied the materials of the constitutional proceedings, having analyzed the current legislation of the Republic of Kazakhstan, international experience and legislation of certain foreign countries, the Constitutional Court of the Republic of Kazakhstan
installed:
The Constitutional Court received an appeal from N. to check the fifth paragraph of paragraph 3 of the normative resolution of the Supreme Court dated March 31, 2016 No. 2 for compliance with paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan.: "Everyone has the right to judicial protection of their rights and freedoms." On March 15, 2023, the appeal was accepted for constitutional proceedings.
According to paragraph five of paragraph 3 of the said regulatory decree of the Supreme Court dated March 31, 2016 No. 2, "When adopting a child in respect of whom paternity has been established by the applicant's spouse, the conclusion of a molecular genetic examination confirming paternity in respect of the adopted child must be attached to the application. In the absence of such a conclusion, the application must be returned with reference to subparagraph 3) of the first part of Article 152 of the CPC due to the inconsistency of the application with the requirements of subparagraph 5) of the second part of Article 148 of the CPC."
The applicant's appeal is related to the fact that the courts of the first and appellate instances, with reference to this clarification from the Supreme Court, returned the application for adoption of the child due to the lack of a conclusion from a molecular genetic examination confirming the paternity of her spouse in relation to the adopted child. The spouse of the subject of the appeal is listed as the father on the birth certificate of this child, born to another woman who was not married to him. He refused to undergo the specified examination, referring to its high cost.
According to the subject of the appeal, the norms of Chapter 33 of the Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 (hereinafter referred to as the CPC) and Chapter 13 of the Code of the Republic of Kazakhstan dated December 26, 2011 "On Marriage (Matrimony) and Family" (hereinafter referred to as the KBS) regulating issues and procedures of adoption do not contain such a mandatory requirement. to apply to the court with an application for adoption. The appeal also notes that according to paragraph 1 of Article 17 of the Constitutional Law of the Republic of Kazakhstan dated December 25, 2000 "On the Judicial System and the Status of Judges of the Republic of Kazakhstan" (hereinafter referred to as the Constitutional Law of December 25, 2000), the Supreme Court clarifies judicial practice through the adoption of regulatory rulings. The subject of the appeal believes that the normative resolution of the Supreme Court of March 31, 2016 No. 2 does not provide an explanation, but establishes an "unreasonable and excessive requirement" for applying to the court, which is not provided for by law.
When verifying the constitutionality of the fifth paragraph of paragraph 3 of the normative resolution of the Supreme Court dated March 31, 2016 No. 2, the Constitutional Court proceeds from the following.
In accordance with paragraph 1 of Article 4 of the Constitution, the current law includes normative decisions of the Supreme Court of the Republic of Kazakhstan. The Supreme Court, like representative, executive and other bodies, participates in the law-making process in accordance with its competence. Paragraph 5 of Article 10 of the Law of the Republic of Kazakhstan dated April 6, 2016 "On Legal Acts" stipulates that the regulatory rulings of the Supreme Court of the Republic of Kazakhstan are outside the hierarchy of regulatory legal acts established by this article. The regulatory resolution of the Constitutional Council of the Republic of Kazakhstan dated March 6, 1997 No. 3 stated that "such a regulatory resolution, which is mandatory for all courts of the Republic, may be issued only on the application of legislation in judicial practice, including the norms of the Constitution of the Republic of Kazakhstan."
At the same time, article 81 of the Constitution establishes that "the Supreme Court of the Republic of Kazakhstan is the highest judicial body in civil, criminal and other matters within the jurisdiction of local and other courts, in cases provided for by law, examines court cases within its jurisdiction and provides explanations on judicial practice issues." Paragraph 1 of article 17 of the Constitutional Law of December 25, 2000 states that the Supreme Court "provides clarifications on issues of judicial practice through the adoption of regulatory rulings."
Paragraph 1 of Article 76 of the Constitution establishes that "judicial power is exercised on behalf of the Republic of Kazakhstan and has as its purpose the protection of the rights, freedoms and legitimate interests of citizens and organizations, ensuring the implementation of the Constitution, laws, other normative legal acts, international treaties of the Republic." At the same time, paragraph 1 of article 77 of the Constitution stipulates that "a judge in the administration of justice is independent and obeys only the Constitution and the law."
The Constitutional Court of the Republic of Kazakhstan notes that clarification is the main form of interpretation of legislation. The content of the normative rulings of the Supreme Court, as the official interpretation of the current law, may include all types of interpretation of legislation on judicial practice. By providing clarifications on issues of judicial practice through the adoption of regulatory rulings, the Supreme Court participates in the law-making process within its competence, is an important link in the formation of current law, and has a significant impact on the application of law by courts. The generally binding regulatory rulings of the Supreme Court promote the uniformity of judicial practice, the effectiveness and improvement of the quality of justice, ensuring the reliability of evidence in court decisions, the introduction of scientific achievements into judicial practice, the protection of human and civil rights and freedoms, and the implementation of international law in the developing national legal system.
The clarification of legislation and judicial practice of its application, which is carried out in various forms (rulings, clarifications, generalizations of practice) by the highest judicial authorities in many countries, is a complex process of systematic analysis that takes into account the multilevel nature and industry specifics of legislation, the evolution of law, the dynamics of public life and legal relations. In the process of clarifying legislation on the practice of its application by courts, the Supreme Court makes generalizations on the consideration of different categories of cases, clarifies and details the meaning of general and abstract provisions of normative legal acts, some insufficiently defined evaluative concepts in legislation, the unification of which is important for judicial practice, resolves possible conflicts of legal norms applied by courts, creates precedents for interpretation standards applied to typical situations. In the course of clarifying judicial practice, for the effective functioning of the judicial system, as well as for the protection of human and civil rights and freedoms, in some cases, specific legal regulations may be created, for example, on certain organizational and procedural issues of judicial review, on the use of evidence based on new scientific and technical developments.
However, all these clarifications of the norms of law necessary for judicial practice, including the possibility of fragmentary and typical clarification of their content, correlation and application, should not contradict the Constitution, laws of the Republic of Kazakhstan and cross the border of competence of other supreme bodies of the state, in particular, restrict the rights and freedoms of individuals. According to paragraph 1 of article 39 of the Constitution, such restrictions may be established only by laws and only to the extent necessary to protect the constitutional order, protect public order, human rights and freedoms, and public health and morals.
Paragraph 2 of article 25 of the Universal Declaration of Human Rights, adopted by resolution 217 A (III) of the United Nations General Assembly on December 10, 1948, states: "All children born in or out of wedlock should enjoy the same social protection," and that infancy entitles them to special care and assistance. This principle is also enshrined in paragraph 2 of article 4 of the Law of the Republic of Kazakhstan dated August 8, 2002 "On the Rights of the Child in the Republic of Kazakhstan" (hereinafter referred to as the Law): "Children born both in and out of marriage enjoy equal and comprehensive protection."
The Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989 and ratified by the resolution of the Supreme Council of the Republic of Kazakhstan on June 8, 1994 (hereinafter referred to as the Convention), requires States parties to maximize and comprehensively protect the rights of the child, including, if possible, the realization of his right to know his parents, providing reliable information about the adoption of a child to counteract any form of child trafficking.
Thus, paragraph 1 of article 3 of the Convention contains the provision: "In all actions concerning children, regardless of whether they are undertaken by public or private institutions dealing with social welfare issues, courts, administrative or legislative bodies, the best interests of the child are given priority." Paragraph 1 of article 7 of the Convention establishes the right of the child, "as far as possible," "to know his parents and the right to their care." In subparagraph (a) of article 21 of the Convention, it is established that States parties, when adopting a child, in particular, ensure that the adoption of a child is authorized "on the basis of all relevant and reliable information". According to article 35 of the Convention, States parties shall take all necessary measures to prevent "trafficking in children or their smuggling for any purpose and in any form."
In Kazakhstan, in addition to the CPC, KBS and the Law, the current law includes a significant array of regulatory legal acts at various levels regulating the adoption of children by citizens of Kazakhstan and foreigners, lump-sum payments in connection with the adoption of orphaned children and children left without parental care, accounting for persons who are citizens of the Republic. Kazakhstan, who permanently reside in Kazakhstan and wish to adopt children, organizations that register orphaned children and children left without parental care, and others.
In the context of the dynamic development of society and scientific and technological progress, new challenges and forms of criminal activity are emerging, including trafficking in minors, which requires adequate legal regulation of issues related to the protection of the lives, rights and interests of children.
The Constitutional Court notes that the contested provision of the Supreme Court's normative resolution No. 2 of March 31, 2016 is aimed at forming a unified judicial practice and clarifies which evidence is convincing confirmation of the applicants' arguments about biological kinship with the child, protects the child's right to know his parents, implements the parents' duty to take care of children, prevents cases of child trafficking and the use of illegal schemes for the adoption of children. The position of the Supreme Court of the Republic of Kazakhstan is that the specified provision of the normative resolution of the Supreme Court dated March 31, 2016 No. 2, important for the protection of the rights of the child and the effective operation of the courts, clarifies and specifies the requirement of subparagraph 5) of the second part of Article 148 of the CPC that when submitting an application to the court, it should be indicated that including "the circumstances on which the plaintiff bases his claims, as well as the content of evidence confirming these circumstances." The norm clarifies what should be considered reliable evidence of the father's kinship with the adopted child in the simplified procedure for the adoption of illegitimate children. The representative of the Supreme Court also explained that the supreme judicial body later took the initiative to consolidate the contested norm in the law, which has not yet been done.
There is no constitutional contradiction in the appointment of a molecular genetic examination confirming paternity in relation to an adopted child, ensuring the rights of the child to be raised in a family of at least one parent, as well as clarifying the issue of necessary evidence for a certain category of cases in the courts. Paragraph 1 of article 27 of the Constitution states: "Marriage and family, motherhood, fatherhood and childhood are protected by the state," and paragraph 2 of the same article stipulates: "Caring for children and their upbringing is the natural right and duty of parents." This examination is aimed at protecting the rights of the child, is proof of his relationship with his father, promotes the legality and validity of court decisions.
The Constitutional Court notes that the fifth paragraph was originally absent from paragraph 3 of the normative resolution of the Supreme Court dated March 31, 2016 No. 2 and was included in this normative legal act by a later normative resolution of the Supreme Court of the Republic of Kazakhstan dated September 30, 2021 No. 2 "On Amendments and Additions to Certain Normative Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedure legislation" (hereinafter referred to as the regulatory resolution of the Supreme Court of September 30, 2021 No. 2). Prior to this, in paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 16 "On the application of legislation by courts in cases related to the establishment of the child's origin" (hereinafter referred to as the regulatory resolution of the Supreme Court dated November 29, 2018 No. 16), molecular genetic examination was already mentioned as one of the evidence, reliably confirming the child's descent from a specific person.
The possibility of conducting an expert examination was also mentioned in the CPC. In parts two and three of paragraph 10 of the Supreme Court's normative resolution No. 16 of November 29, 2018, there were references to Articles 83 and 84 of the CPC on the procedure for taking blood and (or) epithelium samples from the alleged father and child in accordance with the court's ruling. At the same time, it was pointed out that "the courts should take into account that the expert's opinion is not binding on the court. The court's disagreement with the conclusion must be motivated (part seven of Article 92 of the CPC)." Consequently, before the adoption of the Supreme Court's regulatory resolution No. 2 of September 30, 2021, the issue of the use of molecular genetic expertise was already regulated, and the above-mentioned regulatory resolution of the Supreme Court of November 29, 2018 No. 16 specified some norms of the CPC on the conduct of expertise and the work of an expert. At the same time, the expert's opinion was not binding on the court, but the court had to justify its disagreement with the expert.
In the fifth paragraph of paragraph 3 of the normative resolution of the Supreme Court dated March 31, 2016 No. 2, introduced into the normative legal act by the normative resolution of the Supreme Court dated September 30, 2021 No. 2, the requirement was introduced that when adopting a child in respect of whom paternity was established by the applicant's spouse, the conclusion of a molecular genetic examination must be attached to the application. confirming the paternity of the adopted child and that in the absence of this examination, the application must be returned. Thus, a new mandatory norm was introduced, which does not correspond to the seventh part of Article 92 of the CPC, which states that the expert's opinion is not binding on the court, but in case of disagreement with the expert's opinion, the disagreement must be explained in the court's decision.
At the same time, the Constitutional Court draws attention to the fact that for citizens who are in a difficult financial situation, temporarily unable to pay for a molecular genetic examination, as well as in other cases where a citizen expected to conduct this examination during the trial, the absence of a molecular genetic examination should not be an obstacle to applying to the court. In such cases, the court must accept the citizen's application for review and appoint these or other types of examinations that may appear with the development of new technologies that make it possible to reliably establish paternity (motherhood). This approach will contribute to the best interests of the child (article 3 of the Convention).
The imperative 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 presented in the annex to the application to the court restricts access to justice, thereby violating the right of citizens to judicial protection of their rights and freedoms (paragraph 2 of Article 13 of the Constitution). In the opinion of the Constitutional Court, the absence of such an expert examination in the materials attached to the application does not deprive the court of the right to appoint one during the trial in order to protect the rights of the child and obtain evidence scientifically confirming the child's descent from a specific person.
In subparagraph 1) of paragraph 3 of Article 61 of the Constitution, issues of the legal personality of individuals, civil rights and freedoms, obligations and responsibilities of individuals are classified as the most important public relations, the fundamental principles and norms of which Parliament has the right to establish in laws. Issues related to the protection of children's rights and their adoption belong to this most important category of public relations and should be regulated by law.
Along with this, in accordance with subparagraph 6) of paragraph 3 of Article 61 of the Constitution, issues of judicial proceedings, covering, if necessary, amendments to the CPC, are also referred to the competence of Parliament.
According to paragraph 4 of Article 3 of the Constitution, State power in the Republic is unified and is carried out on the basis of the Constitution and laws in accordance with the principle of its division into legislative, executive and judicial branches and interaction between them using a system of checks and balances.
The Constitutional Court notes that the legal position of the Supreme Court, which recognizes molecular genetic examination as one of the necessary evidence of paternity (motherhood), helps strengthen the evidence base of court decisions and protects the rights of the child, which is important for the consideration of this category of cases. This approach meets the requirements of the legislator on the need for the court to take into account evidence reliably confirming the child's origin from a particular person when establishing paternity in court, in the case of the birth of a child to parents who are not married (matrimony) to each other (Article 48 of the KBS).
However, the mandatory requirements for attaching a molecular genetic examination report to a court application for the adoption of a child in respect of whom the applicant's spouse has established paternity and returning the application in case of non-compliance with this rule do not comply with paragraph 2 of article 13 of the Constitution.
Based on the above, guided by paragraph 3 of Article 72, paragraph 3 of Article 74 of the Constitution of the Republic of Kazakhstan, subparagraph 3) paragraph 4 of Article 23, Articles 55-58, 62-65 of the Constitutional Law of the Republic of Kazakhstan dated November 5, 2022 "On the Constitutional Court of the Republic of Kazakhstan", in relation to the subject of the appeal, the Constitutional Court of the Republic of Kazakhstan
Decides:
To recognize the fifth paragraph of paragraph 3 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2016 No. 2 "On the practice of courts applying legislation on the adoption of children" as inconsistent with paragraph 4 of Article 3, paragraph 2 of Article 13, paragraph 1 of Article 39, paragraphs 1) and 6) paragraph 3 of Article 61 of the Constitution of the Republic Kazakhstan.
This regulatory resolution comes into force from the date of its adoption, is generally binding throughout the territory of the Republic of Kazakhstan, final and not subject to appeal.
To publish this regulatory resolution in Kazakh and Russian in periodicals that have received the right to officially publish legislative acts, the unified legal information system and on the Internet resource of the Constitutional Court of the Republic of Kazakhstan.
Constitutional Court of the Republic of Kazakhstan
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