CEDH · CASELAW;CLIN;ENG — 3 mai 2011

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Greece - 56759/08 Judgment 3.5.2011 [Section I] Article 8 Article 8-1 Respect for family life Respect for private life Unjustified refusal to recognise the adoption of an adult by his uncle, a monk: violation   Facts – In 1984 an American court made an order for the adoption of the applicant – a student in the United States at the time – by his uncle, an Orthodox monk who had been ordained a bishop and with whom the applicant was living. The applicant returned to Greece in 1985 and his adoptive father in 1996. The latter died in 1998. In 1999 a Greek court of first instance, following an application by the applicant, held that the American adoption order was not contrary to public policy or contra bonos mores , and declared it final and legally enforceable in Greece. In 2001 the applicant obtained a decision from the prefect authorising him to add his adoptive father’s surname to his original surname. In 2000 and 2001 members of his adoptive father’s family brought legal proceedings challenging the recognition of the adoption. In 2002 the court of first instance dismissed their claims, taking the view that adoption by a monk was not prohibited under Greek law. However, the court of appeal overturned that decision in 2003 on the ground that monks were prohibited from performing legal acts, such as adoption, which related to secular activities, as this was incompatible with monastic life and contrary to the principles of Greek public policy. In 2006 a bench of the Court of Cassation dismissed an appeal on points of law by the applicant, stressing that the adoption order had implications in terms of inheritance rights, and referred to the full court the question whether adoption by a monk was contrary to Greek public policy. In a judgment given in 2008 the full court answered that question in the affirmative. Law – Article 8: The Court acknowledged the existence of family life between the applicant and his adoptive father, observing that the American judicial authorities had issued a decision designed to produce effects in the daily life of the applicant and his family. The refusal of the Greek courts to recognise the adoption had undoubtedly amounted to interference with the applicant’s private and family life. The interference had been in accordance with the law and had pursued the legitimate aim of preventing disorder and protecting public morals. Nevertheless, the Court attached considerable importance to the nature of the rules on which the full Court of Cassation had based its finding that adoption by a monk was contrary to public policy. The rules in question were all ecclesiastical in nature and dated back to the seventh and ninth centuries, whereas the current legislation expressly recognised the right of monks to marry. Moreover, the adoption order had been made after that legislation had been enacted. Lastly, the adoption order had been made in 1984, when the applicant was already an adult, and had been in place for twenty-four years before the Court of Cassation judgments had brought it to an end. Furthermore, the parties had not adduced any evidence to show that the adoptive relationship between the applicant and his adoptive father had been called into question before the question of inheritance arose. Accordingly, the grounds cited by the Court of Cassation for refusing to recognise the applicant’s adoption had not corresponded to a pressing social need. The refusal had therefore not been proportionate to the legitimate aim pursued since it had resulted in the negation of the applicant’s adoptive status. Conclusion : violation (unanimously). Article 8 in conjunction with Article   14: A difference in treatment of an adoptive child compared with a biological child was discriminatory if it had no objective and reasonable justification. Since 1982, monks had been allowed to marry and found a family and the law laying down that rule had been enacted before the applicant’s adoption. Thus, a biological child born to the bishop at the time of the applicant’s adoption could not have been deprived of his or her filial rights (with all that entailed in terms of inheritance rights), of the right to a name or of the right, ultimately, to live in society with an identity other than that resulting from the refusal to recognise the adoption. Conclusion : violation (unanimously). The Court also held unanimously that there had been a violation of Article 6 §   1 on account of the refusal by the Greek courts to recognise the order made by the American courts as being enforceable. It further found a violation of Article   1 of Protocol No.   1 on the ground that the refusal by the Court of Cassation to recognise the applicant’s adoptive status and, consequently, his inheritance rights, had amounted to disproportionate interference with his right to the peaceful enjoyment of his possessions. Article 41: Reserved.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes