CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of June 26, 1998 No. Z-68/98

About compliance of the Constitution of the Republic of Belarus parts two of article 116 of the Code about scrap and family of the Republic of Belarus

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. And, Boyko T. S. judges., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., Shabaylova V. I., G.B. Cone, Shuklina V. Z.

with participation of agents of the parties:

Houses of Representatives of National assembly of the Republic of Belarus: N.N.'s lurid boletus - the member of the Permanent commission of the House of Representatives of National assembly of the Republic of Belarus on work, social problems, health protection, physical culture and sport; Zhishkevich V. I. - head of department of bill work, deputy chief of the Main expert legal department of the Secretariat of the House of Representatives of National assembly of the Republic of Belarus;

Council of the Republic of National assembly of the Republic of Belarus: Brown V.V. - the head of department of civil, social and economic laws of expert legal department of the Secretariat of Council of the Republic of National assembly of the Republic of Belarus;

considered in proceeding in open court case "About compliance of the Constitution of the Republic of Belarus to part two of article 116 of the Code about scrap and family of the Republic of Belarus".

Took part in judicial session: Tsarenko E. M. - vice-chairman of the Supreme Court of the Republic of Belarus; Zhdanovich I.N.zamestitel Predsedatelya of Supreme Economic Court of the Republic of Belarus; Ivanovsky A. V. - deputy attorney general of the Republic of Belarus; Sergeyev O. G. - the deputy minister of justice of the Republic of Belarus.

Proceeedings are initiated by the Constitutional Court on May 19, 1998 according to the proposal of the President of the Republic of Belarus based on article 116 of the Constitution, articles 5 and 6 of the Law "About the Constitutional Court of the Republic of Belarus" and Article 43 of Regulations of the Constitutional Court.

The part two of article 116 of the Code about scrap and family of the Republic of Belarus was subject to check (SZ BSSR, 1969, N 17, Art. 278; 1990, N 22, the Art. 451) providing that adoption can be made without the consent of parents if they do not live more than six months together with the child and without valid excuse, despite the prevention of guardianship and custody bodies do not take part in his education and content, do not show concerning the child of parent attention and care.

In the offer in the Constitutional Court on check of constitutionality of part two of article 116 of the Code about scrap and family of the Republic of Belarus (further - KOBS) the President of the Republic of Belarus specified that according to article 113 KOBS adoption is made by the decision of executive committee of district, city, district Council of deputies in the city at the request of person wishing to adopt the child. In the offer it is noted that according to part four of article 32 of the Constitution children can be separated the family against the will of parents and other persons replacing them, only based on the judgment if the parents or other persons replacing them do not carry out the obligations.

Having heard the judge-speaker Podgrusha V. V., agents of the parties, having studied case papers, having analyzed relevant provisions of the Constitution, the Code about scrap and family of the Republic of Belarus, other regulations of the Republic of Belarus, the Convention on the Rights of the Child and other international legal acts, the Constitutional Court established the following.

According to article 112 KOBS adoption is allowed only concerning minor children and in their interests.

According to article 113 KOBS adoption is made by the decision of executive committee of district, city or district Council of deputies in the city (now - executive and administrative organs of areas, cities, areas in the cities) at the request of person wishing to adopt the child. The procedure provided by this Article is applied as in cases when adoption is performed with the consent of the parents or persons replacing them and in cases when there is no such consent.

Adoption requires the consent of the parents of the child who are not deprived of the parent rights (part one of article 115 KOBS). From this rule is available several exceptions allowing adoption without the consent of parents.

Part one of article 116 KOBS provides that adoption does not require the consent of parents if they are deprived of the parent rights or are recognized in the procedure established by the law as incapacitated or it is unknown absent.

The part two of the specified Article determines conditions when adoption can be made without the consent of the parents who are not deprived of the parent rights which are capable, that is capable to understand value of the actions, to direct them and to expect effects of their making, and not acknowledged is unknown absent. It is provided in it that adoption can be made without the consent of parents if they do not live more than six months together with the child and without valid excuse, despite the prevention of guardianship and custody bodies, do not take part in his education and content, do not show concerning the child of parent attention and care.

According to part three of article 32 of the Constitution the parents or persons replacing them have the right and shall raise children, care about their health, development and training. The fundamental law determines that education, care about health of children, their development and training is not only the right, but also obligation of the parents or persons replacing them.

According to part four of the specified article of the Constitution children can be separated the family against the will of parents and other persons replacing them, only based on the judgment if the parents or other persons replacing them do not carry out the obligations.

Legal process of department of children against the will of the parents or persons replacing them is established in the Republic of Belarus with adoption of the Constitution of 1994 with changes and amendments on republican referendum of 1996.

Proceeding from content of the specified regulations of the Constitution follows that the department of the child from the family without the consent of parents is possible in cases if parents do not carry out the obligations on education of children, do not care about their health, development, training, and and such department is possible only based on the judgment.

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