Court/Judicial body: Supreme Administrative Court, Bulgaria
Date: November 6, 2002 CRC
Provisions: Article 3(1): Best interests of the child Article 21(b): Adoption
Other international provisions:Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption
Domestic provisions:Constitution, 1991 (Bulgaria) ( Article 5(4): Legal status of international treaties; Article 14: Protection of family, motherhood and children)
Background: Mr. Kerezov (the claimant) challenged the validity of “Regulation No. 17 of 3 August 1992 on the procedure for adoption of a person who is a Bulgarian citizen by a foreigner”, claiming that provisions of the Regulation effectively delaying foreign adoptions of Bulgarian citizens by one year (Articles 4(2), 5(1)(3) and 5(2)) and barring adoption by families with children ( Article 9(1)) contradicted Bulgaria’s Family Code.
Issue and resolution: Inter-country adoption. The Supreme Administrative Court upheld the provisions of the Regulation delaying foreign adoptions but struck down the provision barring families with children from adopting.
Court reasoning: Under the Bulgarian Constitution ( Article 5(4)), the CRC is part of the domestic law of Bulgaria and prevails over any contradictory domestic legislation. Because it is in the best interests of children to be raised and live in their country of origin, the Court looked to the Convention and found that the domestic legal provisions delaying adoption of Bulgarian children did not contradict Articles 3 or 21 (or the relevant provisions of the Bulgarian Constitution, the Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, the Bulgarian Family Code, or the Bulgarian Law on the Protection of the Child). Instead, these provisions work to ensure that Bulgarian children are not adopted by foreign nationals unless all possibilities of being adopted or raised in Bulgaria have been exhausted. The provision barring adoption by families with children, however, was found inconsistent with other provisions of Bulgarian law and invalidated.
Excerpt citing CRC and other relevant human rights as translated by the Oxford Reports on International Law in Domestic Courts [T]he Regulation is issued by the application of the regulations of chapter six of the Family Code, in the section relating to intercountry adoption, and in performance of the international treaty obligations adopted by our country (Bulgaria) under the UN Convention on the Rights of the Child of 20 November 1989, ratified by resolution of the Supreme People’s Court of 11 April 1991 and promulgated in the State Gazette, issue 55 of 1991, and in effect for the Republic of Bulgaria as of 3 July 1991.  According to paragraph 1 of Art. 3 of the Convention, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Guided by these interests, the State Parties to the Convention recognize in Art. 21 (b) that intercountry adoption may be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot be cared for in any suitable manner in the child’s country of origin;  Art. 1(2) of the Regulation specifies that during the procedure of adoption, the requirements laid down in Art. 21 of the UN Convention on the Rights of the Child shall be adhered to. The principles established by the Convention on the Rights of the Child and the UN Declaration on the social and legal principles relating to the wellbeing of children, and especially in relation to the provision on raising children and adoption on a national and intercountry scale (Resolution 41/85 of 13 December 1986) have been further developed in the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993, signed by the Republic of Bulgaria on 27 February 2001 and ratified and promulgated in the State Gazette, issue 78 of 13 August 2002.  On the strength of Art. 5 (4) of the Constitution of the Republic of Bulgaria, the international treaties referred to shall constitute part of the country’s internal law and shall prevail over those norms of the national legislation that contradict them.…]  The contention of the claimant[, Mr. Kerezov,] of unlawfulness of Art. 5 (1), paragraph 3 and (2), in relation to Art. 4 (2) of Regulation No. 17 of 1992 by the Minister of Justice is groundless, because the requirement established there delays the adoption of children above the age of three by foreigners by one year, which diminishes their chances of adoption and the possibility to grow up in a family environment. Notwithstanding the validity of the argument made, it cannot prevail over the child’s best interest to grow up and live in its country of birth and over the obligation on the state and society to create conditions for Bulgarian families to adopt and raise Bulgarian children, as well as other suitable means of taking care of children in the country they are born in.  The requirement introduced by the appealed Regulation does not contradict the principles established by Art. 14 of the Constitution of the Republic of Bulgaria, Art. 3 and Art. 21 of the Convention on the Rights of the Child, Art. 59 (2) and Art. 136 (1) of the Family Code, Art. 4 of the Law on Protection of the Child and the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. The objective of the administrative procedure envisaged by the Regulation is to guarantee that the permission for the adoption of a Bulgarian child by a foreigner is given after it has been established by the competent body in an indisputable and exhaustive manner that the child cannot be adopted by a Bulgarian family, that the child cannot be taken care of in the country of origin and that its adoption abroad is its only chance to grow up in a family environment and for its rights and interests to be protected in the country of the adopters.
Follow up: The Regulation was completely repealed following this case. According to the Oxford Reports on International Law in Domestic Courts, “[t]he judgment of the Supreme Administrative Court catalyzed the process of legislative changes in the field of adoption. Shortly after it rendered this judgment, the Bulgarian Parliament adopted a Law on Amending and Supplementing the Family Code, State Gazette No 63, 15 July 2003, whereby the legal regulation concerning the adoption was improved. On his part, the Minister of Justice issued a new Ordinance No 3 laying down the conditions and procedure for giving consent for the adoption of a person of Bulgarian nationality by a foreigner, entered into force 16 September 2003 (‘Ordinance’). Paragraph 8 of the Transitional and Final Provisions of this Ordinance completely repealed the Regulation and created a better legal regulation of activities relating to intercountry adoption. It does not contain provisions identical or similar either to Article 9(1) repealed by the court’s judgment, or to Articles 5(1)(3) and 5(2) of the Regulation. Article 2 of the Ordinance states that ‘the activities relating to intercountry adoption shall be carried out while guaranteeing the protection of the interests of the child, respecting the child, fundamental rights, and in conformity with the requirements of Article 21 of the CRC.’”
Notes: The parties to this case did not rely upon or reference the CRC (or the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption) in their arguments before the Court. Rather, the Court independently decided to consider and apply these international treaties.
CRIN comments: CRIN believes that the best interests of the child must be paramount in any adoption proceeding, and that domestic adoption possibilities should first be examined before international adoption is considered. In this sense, the Court’s discussion of inter-country adoption is consistent with the CRC.
Citation: Kerezov v Minister of Justice, Appeal, Administrative Case No 2829/2002, Judgment No 9904, ILDC 606 (BG 2002), Sup. Admin. Ct. (Bulgaria) (6 November 2002).