Constitutional Court

KI01/21, Applicant: Ajshe Aliu, Constitutional review of Judgment ARJ-UZVP. No. 37/2020 of the Supreme Court of Kosovo, of 11 June 2020

KI01/21, Judgment of 7 October 2021, published on 1 November 2021

Keywords: individual referral, right to respect for private and family life, lack of reasoned court decision

The circumstances of the respective case are related to the alleged right of a biological mother to notify/contact her child given up for adoption and who has already reached the age of majority, in the specifics clarified in the published Judgment. The issues involved in the Referral relate, among other things, to the right for private life, and the relevant principles and exceptions, as guaranteed by the respective articles of the Constitution and the European Convention on Human Rights, and the relevant case law of the Court and of the European Court of Human Rights.

More specifically, it is noted from the case file that the Applicant, on 1 March 2016, submitted a request at the Centre for Social Work within the Municipality of Prishtina, by which she had requested that her biological adult child, whom she had given up for adoption in 1989, to be notified of: (i) the existence of his biological mother; and (ii) her interest in notifying him. The Centre for Social Work responded by stating that (i) there is no legal basis to notify her biological child in relation to his/her adoption; and that (ii) pursuant to paragraph 2 of Article 194 (Principles) of the Family Law of Kosovo, at full age the adoptee has the right of access to all information concerning his adoption and shall on request be provided with personal information about his biological parents. As a result of the Applicant’s request for reconsideration of the response of the Centre for Social Work, the finding of the latter was also confirmed by the Complaints Commission within the Social and Family Policies Department in the Ministry of Labour and Social Welfare. Consequently, the Applicant filed a statement of claim with the Basic Court in Prishtina requesting, among other things, that the Social and Family Policy Department be obliged to inform her biological child about his/her adoption. The Basic Court rejected the Applicant’s claim as ungrounded, confirming the above findings of the Centre for Social Work and of the Complaints Commission within the Ministry of Labour and Social Welfare, and finding that based on the legal provisions in force, the Centre for Social Work it is not obliged to inform the child with regard to his/her adoption and that only the adult adoptee has the right to access such data upon his/her request. Subsequently, the Applicant filed an appeal against this Judgment of the Basic Court, with the Court of Appeals, and the latter rejected her appeal as ungrounded, confirming the finding of the first instance court. As a result of the Applicant’s request for extraordinary revision of the Judgment of the Court of Appeals filed with the Supreme Court, the latter by the Judgment of 11 June 2020, also rejected the respective request of the Applicant as ungrounded. The Supreme Court by the challenged Judgment has upheld the findings of the Basic Court and of the Court of Appeals, and has concluded that the facts and circumstances of the adoption should not be disclosed or investigated without the consent of the adopter and the child, unless it is required for special reasons and for reasons of public interest.

The Applicant challenged before the Court the abovementioned findings of the Supreme Court, including also those of the first and second instance courts. The essence of the Applicant’s allegation before the Court was that the regular courts have violated her right for private life, guaranteed by Article 8 (Right to respect for private and family life) of the European Convention on Human Rights, by not to approving her request for notifying her biological child with regard to the existence of his/her biological mother and the Applicant’s interest in notifying him/her. As a result of the same, she had also alleged: (i) violation of Article 31 (Right to Fair and Impartial Trial) of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights due to the non-reasoning of the court decision; and (iii) violation of Article 7 of the Convention on the Rights of the Child.

In assessing the Applicant’s allegations, the Court focused on the guarantees enshrined in Article 36 (Right to Privacy) of the Constitution in conjunction with Article 8 (Right to respect for private and family life) of the European Convention on Human Rights, and in this context, first elaborated the general principles deriving from the case law of the Court and of the European Court of Human Rights, and then, applied the same in the circumstances of the present case. The Court noted that the Applicant’s request, by which she had expressed her interest in notifying her child given up for adoption in 1989, contains elements that belong to an important part of her identity as biological mother and which affect her right for private life in terms of the notion of “her private life” guaranteed by paragraph 1 of Article 36 of the Constitution in conjunction with paragraph 1 of Article 8 of the European Convention on Human Rights. Having said that, given that this allegation affects her right for private life, the Court recalled that, according to its case law and that of the European Court of Human Rights, during the review of cases to find whether in a particular case there was a restriction and violation of human rights and freedoms guaranteed by the Convention, applies the same concepts, respectively if the respective restriction or intervention: (i) is “in accordance with the law” or “prescribed by law”; (ii) has “pursued a legitimate aim”; and (iii) is “necessary in a democratic society.” In this context, the Court in the circumstances of the present case, held that the decisions of the regular courts, by which the Applicant’s specific request was rejected: (i) were based on law; (ii) had pursued a legitimate aim – the protection of the rights and freedoms of the adopted child and his/her adoptive family; and (iii) had pursued a fair balance between the interests of the adopted child, already of adult age, and the respect of his/her right for private and family life within his/her adoptive family.

Consequently, the Court held that the challenged Judgment of the Supreme Court does not involve violation of her right for private life guaranteed by paragraph 1 of Article 36 of the Constitution in conjunction with paragraph 1 of Article 8 of the European Convention on Human Rights. Whereas, concerning the allegation of violation of the right to fair and impartial trial, as a result of the lack of reasoned court decision, the Court, applying the general principles established with the case law of the Court and that of the European Court of Human Rights, recalling that on the basis of the same and as far as it is relevant to the circumstances of the present case, the extent to which the obligation to give reasons applies, may vary depending on the nature of the decision and should be determined in the light of the circumstances of the present case, found that in the Applicant’s circumstances, the challenged Judgment of the Supreme Court meets the criteria and standard for a reasoned court decision, as guaranteed by Article 31 of the Constitution in conjunction with Article 6 of the Convention.

Finally, based on the circumstances of the present case and based on the explanations given in the published Judgment, the Court found that the challenged Judgment of the Supreme Court is in accordance with (i) Article 36 [Right to Privacy] of the Constitution in conjunction with Article 8 (Right to respect for private and family life) of the European Convention on Human Rights; and also (ii) Article 31 [Right to Fair and Impartial Trial] of the Constitution in conjunction with Article 6 (Right to a fair trial) of the European Convention on Human Rights.