Y against Serbia

On March 24, 2026, the European Court of Human Rights (hereinafter: the Court) rendered, and on May 12 of the same year, announced its judgment in the caseYagainst Serbia, number 28322/20.

The verdict was unanimousbroughta seven-member panel, with the judges being the judgesHuseynovandNí Raifeartaigh attached a joint unanimous dissenting opinion.

THE CIRCUMSTANCES CASES

The applicant (hereinafter: the applicant) Y, was born in 2007, and in 2015 she was placed in a foster family together with her three biological relatives (siblings) after her parents were deprived of parental rights due to complete neglect.

Center for Social Work(hereinafter: Center) determined that it is in the best interest of the children to be adopted by the same family, all four, or at least the applicant and her brother X.

Since all attempts to find potential adoptive parents for children in Serbia proved unsuccessful, in September 2017, the Center started looking for adoptive parents at the international level.

In September 2017, a couple from abroad expressed their intention to adopt a girl Y and her younger half-brother (X). However, considering that the applicant then turned 10 years old, she used her legal right to refuse the adoption in order to remain living with the previous foster mother.

The applicant's half-brother, minor X, was officially adopted by a family from abroad, which resulted in inter-country adoption and segregation of children.

The applicant presented a series of complaints about the adoption procedure of her underage brotherX which led to the termination of their contact, i.e. to their separation, considering that they lived together with the foster mother and guardian, Mrs. L., starting from December 2014.

In the petition, a series of alleged irregularities and illegalities in the work of state bodies, especially the Center for Social Work of the Municipality of Žabalj and Titel "Solidarnost" from Žabalj, in procedures for the termination of foster care and guardianship of minors, were presented.Y, as well as in the procedure of his adoption. Also, claims were made that Mrs. L. lost the status of the applicant's guardian solely because, in her capacity as her legal representative - guardian, she filed a lawsuit before the Basic Court in Novi Sad for the annulment of the adoption of the applicant's minor brotherY.

The applicant and her guardian, Ms. L, initiated a series of proceedings before the Administrative and Constitutional Courts, as well as before other domestic authorities, presenting complaints and pointing out the alleged illegalities that led to the violation of the rights and freedoms guaranteed by the Convention.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicant submitted a petition to the Court on October 10, 2020.

In the petition, she complained about the violation of the right to a fair trial, the right to respect for private and family life and the right to an effective legal remedy from Art. 6, 8 and 13 of the Convention, claiming that the adoption of her half-brotherXall contact with him was terminated, that there is no legal means by which she could establish contact with him and that her right to a fair trial in proceedings before the Administrative Court was violated.

THE DECISION THE COURT

• Article 8 of the Convention

In relation to the applicant's complaints about the lack of contact with her brother after his adoption abroad, the Court, first of all, took the view that the essence of the case in question is whether there was a positive obligation of the state to ensure contact between the applicant and X after his adoption abroad.

After a detailed analysis of the facts of the specific case, the Court concluded that the adoption of X by a family living abroad was, in the long run, in his best interest because, as a child whose mother was deprived of parental rights and whose father was unknown, he did not have a permanent stable family situation.a no potential adopters were found for him in Serbia.

Also, the Court assessed that cannot be considered arbitrary, the domestic authorities' assessment that it is in X's best interest to be adopted abroad, and that there is nothing to indicate that his adoption was illegal or that it produced negative consequences for him.

The court further noted that in Serbia there is no possibility of "open" adoption that would ensure contact between the adopted child and his biological family, nor is there a law regulating such contact. In addition, the Court noted that the relevant international instruments do not impose a general obligation on states to maintain contact between siblings after full adoption.

Although the Opinion of the Ministry of Labour, Veterans and Social Affairs dated February 13, 2018 stated that adoptive parents would ensure contact betweenX and the applicant after his adoption "in accordance with the possibilities, needs and interests", it did not become a legal obligation.

The state correctly assessed the possibilities and interests of the applicant andX and prioritized the need  Xfor stability, permanence and integration into the new family and building his family life with the adoptive family, undisturbed by the attempts of his biological family members to establish contact.

Following everything stated, the Courtconcluded that no injury had occurred the applicant's right to respect for private and family life from Article 8 of the Convention.

• Art. 6th and 13th Conventions

Regarding the applicant's complaints about the unfairness of the procedure for the annulment of the adoption of X in terms of the provision of the article6. paragraph 1 of the Convention, the Court stated that the applicant did not file a constitutional appeal with the Constitutional Court against the final judgment of the Appellate Court in Novi Sad from September 28, 2022. Therefore, the Court rejected those complaints due to non-exhaustion of domestic legal remediesin accordance with the provisions of Article 35, para. 1 and 4 of the Convention. Also, the Court dismissed the applicant's complaints regarding the rejection of the request forrepetition the one mentioned aboveprocedure,rejected as incompatibleratione materiae with the provisions of the Convention,in accordance with the provisions of Article 35, paragraph 3.(a) of the Convention, reminding that Article 6 does not apply to procedures related to requests for the repetition of civil proceedings that have been legally terminated.

Finally, regardingcomplaints under Article 13 of the Convention, the Court once again noted that there is no possibility of "open" adoption in Serbia, and that adoption has the effect of severing ties between the adopted child and his biological family. Therefore, according to the Court's assessment, the guarantees from Article 13 of the Convention cannot be considered binding for the state to provide a legal remedy that would enable contact between the adopted child and his biological relatives after adoption. Consequently, the Court dismissed this complaint as obviously unfoundedin accordance with the provisions of Article 35, para. 3 (a) and 4 of the Convention.

TOGETHER SEPARATEO OPINIONE JUDGEHÜSEYNOV INÍ RAIFEARTAIGH

JudgesHuseynovandNí Raifeartaigh have pointed out in their separate opinion thatthe case in question  raises a new question, becauseThe court did not have the opportunity to deal with the complaint in question contact between siblings after adoption in the context of intercountry adoption. This case is different from the case in their opinionBogonosovyagainst Russia, number 38201/16, dated March 5, 2019 andPedersenand others against Norway, number 39710/15, dated March 10, 2020, becauseXadopted by a family living abroad, because the adoption was "closed" since Serbian law did not prescribe "open" adoption, and contact withX isrequested by his sister, not his biological parents.

In the opinion of the judgesHuseynovandNí Raifeartaigh, the essence of the applicant's complaint is that she had no contact with her half-brother after his adoption abroad, and the main legal question that the Court had to resolve was whether the State of Serbia had a positive obligation to facilitate contact between them, and if so, what was the nature and scope of that obligation. JudgesHuseynovandNí Raifeartaigh noted with regret that the judgment does not explain either the basis for existence or the circumstances of the obligation to facilitate contact between siblings after adoption, if it is interstate.

JudgesHuseynovandNí Raifeartaigh highlighted a number of issues that the Court should clarify through practice, including:a) whether and to what extent the Court's practice can be applied to "closed" adoptions, whether international or domestic;b) the nature and scope of the positive obligation to facilitate contact between the adopted child and members of his/her biological family after adoption, including modern technologies;c) the type of actions or measures required of the State to facilitate meaningful contact if that obligation arises;g) the impact of adoption on the relationship between siblings for the purpose of assessing the positive obligation to maintain mutual contact;d) ways of cooperation between states regarding interstate adoption in assessing the best interests of the adopted child.