JUDGMENT NO. 5
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 291, paragraph one, of the Civil Code, initiated by the Ordinary Court of Florence, First Civil Section, in the proceedings between G. S. and A. M., by order of 17 January 2023, registered under no. 62 of the Register of Orders 2023 and published in the Official Gazette of the Republic no. 20, first special series, of the year 2023, the hearing of which was set for the meeting in the council chamber of 22 November 2023.
Having regard to the instrument of intervention of the President of the Council of Ministers;
Having heard in the council chamber of 23 November 2023, the reporting Judge Maria Rosaria San Giorgio;
Deliberated in the council chamber of 23 November 2023.
Facts of the Case
1.– By order of 17 January 2023, registered under no. 62 of the Register of Orders 2023, the Ordinary Court of Florence, First Civil Section, raised – with reference to Articles 2, 3, 10, paragraph one (in relation to Article 8 of the European Convention on Human Rights, Article 7 of the Charter of Fundamental Rights of the European Union and Article 16 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948), and 30 of the Constitution – a question of constitutional legitimacy of Article 291, paragraph one, of the Civil Code, «in the part where it does not allow the judge to declare the adoption of a person of legal age, by derogating from the age difference limit between adopter and adoptee imposed at 18 years in cases of a small age difference».
2.– The referring court reports that G. S., born in 1946, requested the Court of Florence to proceed with the declaration of adoption of the adult A. M., stating that the latter, born in 1963, an orphan of his mother and whose father, G. M., had married the petitioner in 1968, had always lived with his father and, from the age of 5, also with the petitioner, who had cared for and raised him as a son with no difference whatsoever compared to the biological daughter, born from the marriage with G. M.
In taking note of the circumstance that the age difference with respect to the son of the spouse is equal to 17 years and 3 months, so that the requirement of a minimum age difference of 18 years, imposed by Article 291, paragraph one, of the Civil Code, is not fully met in the present case, the petitioner has pointed out that the emotional bond that exists between her and A. M. deserves protection in accordance with constitutional principles, including that of family unity (Article 30 of the Constitution) and respect for private and family life (Article 8 ECHR).
3.– On the basis of the indicated premise, the referring court, having taken note of the declarations of consent to the adoption expressed at the chamber hearing before the reporting judge by the petitioner and the adoptee, of the consent of the latter's father and the daughter born from the marriage between G. M. and G. S., as well as of A. M.'s wife, notes that, in the present case, since G. S. was born in 1946 and A. M. in 1963, the age difference between the petitioner for adoption and the adoptee, prescribed by Article 291, paragraph one, of the Civil Code, is objectively not respected. However, the existence of a long and positive bond of affection and solidarity between the aspirants for adoption, typical of the parental relationship, is undisputed. It is also evident, according to the referring court, the requirement of the convenience of the adoption, pursuant to Article 312, number 2), of the Civil Code, finding the interest of the son of the adopter's spouse an effective and real correspondence in the common intent of all the members of the family (the judgment of the Court of Cassation, First Civil Section, 3 February 2006, no. 2426, is cited).
Given this, the referring Panel notes the «changed sociological configuration» of the institution of the adoption of adults in the achieved function «of legal recognition of a social, emotional and identity relationship, as well as of a personal history, of adopter and adoptee» and of an instrument «aimed at allowing the formation of families between subjects who, although of legal age, are linked by solid personal, moral and civil ties, in accordance with the constitutional principles of family unity (Article 30 of the Constitution) and respect for private and family life (Article 8 of the European Convention on Human Rights)».
In light of these considerations, the Court of Florence believes that Article 291, paragraph one, of the Civil Code, in the part where it does not allow the judge any discretion to derogate from the age difference limit, and, consequently, «does not allow the adoption of an adult even if the lack of the required age difference between adopter and adoptee is minimal (as in the case of the present one, equal to 9 months)», presents possible profiles of constitutional illegitimacy due to violation:
1) of Articles 2 and 30 of the Constitution, for the violation of both the capacity of the individual to self-determine, as an individual and in the social formations in which his personality is developed, which also includes the family, and of the right-duty to maintain, educate and instruct children, «given that in the case in question the profound bond between the adopter and the child of the spouse, whom the former has raised and educated since he was 5 years old (he is now 59), which is entirely comparable to a filiation relationship, appears evident»;
2) of Article 3 of the Constitution, in terms of disparity of treatment compared to the adoption of a minor in special cases, pursuant to Article 44, paragraphs 1, letter b), and 5, of Law no. 184 of 4 May 1983 (Right of the minor to a family), in relation to which the legislator has provided that the judge may reduce the age difference in the presence of valid reasons pertaining to family unity, with the consequent unreasonable discrimination between adults and minors «in the face of the axiological affinity of the two institutions»;
3) of Article 10 of the Constitution, for failure to respect European and international legislation with which the Italian legal system is obliged to comply (Article 8 ECHR and Article 7 CFREU are evoked, in the emphasised right of the individual to respect for his private and family life, which has as a corollary the prohibition of “interference by a public authority”, as well as Article 16 of the Universal Declaration of Human Rights, in the right of men and women, of suitable age, to found a family, defined as the «natural and fundamental group unit of society» that «has the right to be protected by society and the State».
4.– The referring court then mentions the judgment of the Court of Cassation, First Civil Section, 3 April 2020, no. 7667, which, through a historical-systematic review of the institution, has provided a constitutionally oriented interpretation of the contested provision, coinciding with the desired additive intervention; however, it does not consider this interpretation practicable in the clarity and univocity of the regulatory provision.
The absence of a specific derogatory provision, which overcomes the rigidity of the system on the point, would not even translate into a legislative gap, so it would be precluded to the ordinary judge to free himself by mere exegesis from the positive discipline.
5.– The President of the Council of Ministers, represented and defended by the State Attorney's Office, intervened in the proceedings by instrument filed on 6 June 2023, with which it requested that the question be declared inadmissible or, in any case, unfounded.
5.1.– The intervening party refers to judgments no. 500 of 2000 and no. 89 of 1993, with which this Court has judged the contested provision to be in accordance with the Constitution, examining the question under profiles identical to those under scrutiny, which could not be discussed again.
The State Attorney's Office recalls that this Court has excluded that the different regime laid down in the matter of adoption of a minor in special cases (Article 44, paragraphs 1, letter b, and 5, of Law no. 184 of 1983) can be a valid parameter of comparison, pursuant to Article 3 of the Constitution.
In reporting a lengthy excerpt from judgment no. 89 of 1993 – in the part where it held that the adoption of adults does not imply «necessarily the establishment or continuation of family cohabitation» and «does not determine the subjection to the power of the adoptive parents, nor does it impose on the adopter the obligation to maintain, instruct and educate the adoptee» –, the intervening party observes that the control over the requirements that legitimise the adoption of persons of legal age, within the limited power left to the judge to assess «whether the adoption "suits" the adoptee (Article 312 of the Civil Code)», would not include any discretionary assessment of the "interest" of the adoptee, nor would it provide for those "incisive" controls, instead established for the adoption of a minor.
Therefore, a difference in discipline, also in terms of overcoming the age difference limit, would be justified between the treatment of the minor – who, for the purposes of his education and maintenance, must be placed in a family context, a need that remains even in the institution of adoption in special cases – and the treatment of the adult, who may well preserve the bond with his family of origin without considering the duties of parents towards their offspring and the rights of the latter.
5.2.– The intervening party then notes that the violation of Article 8 ECHR is denounced through the reference to an irrelevant parameter, Article 10, paragraph one, of the Constitution, which instead refers to the rules of general international law, while the indirect incidence of international treaty law should have engaged Articles 11 and 117, paragraph one, of the Constitution, not invoked by the referring court.
5.3.– The State Attorney's Office also argues that the conventional vision of the family referred to in Articles 8 and 12 ECHR is focused on the protection of the individual components rather than «of the family unit as such», which would instead receive protection in its «communitarian» dimension in other international charters (the following are cited: the Universal Declaration of Human Rights of 1948, in Articles 12 and 16; the International Covenant on Civil and Political Rights of 1966; the American Convention on Human Rights, in Articles 11 and 17; the Arab Charter on Human Rights, in Articles 21 and 33; the African Charter on Human and Peoples' Rights of 1981; the Cairo Declaration on Human Rights in Islam of 1990; the International Covenant on Economic, Social and Cultural Rights of 1966, in Article 10).
The intervening party recalls the non-absolute nature of the rights enshrined in Articles 8 and 12 ECHR, as well as the review carried out, in this regard, by the European Court of Human Rights on the conformity with the principles of legality, necessity and proportionality of state measures of «interference» in these rights, and the elaboration of «positive obligations» on States, to promote and protect private and family life.
The State Attorney's Office explains how, in application of the criterion of the «margin of appreciation» and in execution of the «conventional standards», the actions of individual States must combine the need to maintain national contexts and the pursuit of general interest objectives in a manner adequate to the purpose and respectful of the prerogatives of individuals, with the recognition, in a jurisprudential way, of new rights being subject to European consensus in the matter.
The State Attorney's Office also observes that the theory of «additional rights» – elaborated in order to oblige States that independently choose to recognise them to guarantee their enjoyment without unreasonable or discriminatory restrictions – has been used by the ECHR Court with regard to the «right to adopt», even though the latter cannot be derived from the Convention even through its evolutionary reading. Protection would, however, be ensured through the extension of the prohibition of discrimination (Article 14 ECHR) to every sector falling within the «scope of influence» («tombent sous l’empire») of the conventional provisions.
In the described perspective, the provision on the necessary age difference provided for in Article 291 of the Civil Code would not be discriminatory as it concerns a situation, the civil adoption or that of adults, which is completely heterogeneous with respect to the other compared (the adoption of the minor), and would fall, in a justified and proportionate way, within the margin of appreciation of States in the matter.
5.4.– According to the State Attorney's Office, the adoption of adults, the outcome of the reform pursuant to Law no. 184 of 1983, has peculiar characteristics compared to the adoption of minors in legitimising forms, which can be appreciated both in terms of the placement of the discipline, entirely contained in the Civil Code, rather than in special laws, and on the substantive level. Whereas the other forms of adoption aim to offer the minor a family alternative to the family of origin, the purpose of civil adoption is instead to confer on the adult adoptee a filial status that is added to the previous one without affecting it (the pre-position of the adopter's surname; the unilateral acquisition of succession rights by the adoptee; the maintenance by the adoptee of rights and obligations towards the family of origin, pursuant to Article 300 of the Civil Code, are mentioned).
5.5.– The existence of a minimum age difference would therefore be consistent with the institution of the adoption of an adult, having the legal nature of a judicial concession, in the unavailability for negotiation of family statuses, which would be affected by the introduction of indefinite criteria of flexibility in the matter of age difference.
5.6.– The additive intervention requested by the referring court to this Court would not, in any case, be the only constitutionally compliant solution. The very notion of “small age difference” would require «to be accompanied by specific criteria that the judge should follow to evaluate the cases in which the difference [in age] of 18 years could be disapplied».
Legal Reasoning
1.– The Court of Florence, First Civil Section, doubts the constitutional legitimacy of Article 291, paragraph one, of the Civil Code «in the part where it does not allow the judge to declare the adoption of an adult, by derogating from the age difference limit between adopter and adoptee imposed at 18 years in cases of a small age difference», with reference to Articles 2, 3, 10, paragraph one (in relation to Article 8 of the European Convention on Human Rights, Article 7 of the Charter of Fundamental Rights of the European Union and Article 16 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948), and 30 of the Constitution.
In terms of the facts, the referring court reports that G. S., born in 1946, had turned to the Court of Florence for the declaration of adoption of the adult A. M., born in 1963, who, an orphan of his mother and whose father, G. M., had married the petitioner in 1968, had always lived with his father and, from the age of five, with the petitioner herself. In the opinion of the referring court, the existence of a bond of affection and solidarity between the parties lasting over fifty years, and comparable to that existing between parents and children, had been acknowledged in the unconditional consent declarations made in court by the adopter and adoptee and in the full consent expressed by the other interested parties, in their common will to make use of the adoption to formalise the relationship.
Having identified in the present case the further condition of the "convenience" to adoption (Article 312, number 2, of the Civil Code), intended as the effective and real correspondence of the adoptee's interest in the common intent of all the members of the family (Cassation judgment no. 2426 of 2006 is cited), the referring court notes that the institution of the adoption of adults, also in light of the «changed sociological configuration that has occurred in recent decades, has recently assumed the function of legal recognition of a social, emotional and identity relationship, as well as of a personal history, of adopter and adoptee, as an instrument aimed at allowing the formation of families between subjects who, although of legal age, are linked to each other by solid personal, moral and civil ties, in accordance with the constitutional principles of family unity (Article 30 of the Constitution) and respect for private and family life (Article 8 of the European Convention on Human Rights)».
2.– In light of the aforementioned considerations, the referring Panel criticises the codification which, in the case of the adoption of an adult, does not admit any derogation from the requirement of a minimum age difference of 18 years between adopter and adoptee, even when this difference deviates slightly from the aforementioned limit, as in the present case, in which the age difference between petitioner and adoptee is equal to 17 years and 3 months.
2.1.– The referring court suspects the conflict of the provision in question with Articles 2 and 30 of the Constitution, for the violation, consequent to the rigidity of the limit of the minimum age difference, of the capacity of the individual to self-determine as an individual and in the social family formation, and of the right-duty of the adopter to maintain, educate and instruct children in the presence of a situation «entirely comparable» to biological filiation.
2.2.– It also recognises a vulnus to Article 3 of the Constitution in the unreasonable disparity of treatment between the adoption of an adult and that of a minor in special cases, with respect to which «the Legislator has provided that the judge may reduce the age difference between adopter and adoptee in the presence of valid reasons that guarantee family unity» (Article 44, paragraphs 1, letter b, and 5, of Law no. 184 of 1983), despite the «axiological affinity of the two institutions».
2.3.– The referring court further deduces the violation of Article 10 of the Constitution – recte, Articles 11 and 117, paragraph one, of the Constitution – from the aspect of non-compliance, by the contested provision, with the European and international legislation with which the Italian legal system is obliged to comply, evoking, as interpositioned parameters, Article 8 ECHR and Article 7 CFREU, in relation to the right of the individual to respect for his private and family life, which has as a corollary the prohibition of “interference by a public authority”, as well as Article 16 of the Universal Declaration of Human Rights, with regard to the right of men and women, of suitable age, to found a family, defined as the «natural and fundamental group unit of society» that «has the right to be protected by society and the State».
2.4.– Having excluded the practicability of a constitutionally oriented interpretation, contrary to what was held by the Court of Cassation with judgment no. 7667 of 2020, such as the recourse to theanalogia legis or iuris, pursuant to Article 12, paragraph two, of the Preleggi, the Court of Florence deems it necessary to promote the incident of constitutional legitimacy in the indicated terms.
3.– In this regard, it must first be noted that the referring judge has correctly excluded the possibility of a constitutionally oriented interpretation of the contested provision, thus submitting his doubt to the scrutiny of this Court. According to the constant constitutional jurisprudence, in fact, «the burden of compliant interpretation ceases, giving way to the incident of constitutionality, when the referring judge maintains, as in the present case, that the literal tenor of the provision does not allow such an interpretation» (judgment no. 104 of 2023; in the same sense, judgments no. 102 of 2021, no. 253 of 2020 and no. 232 of 2013).
In the present case, the peremptory formula of the first paragraph of Article 291 of the Civil Code, in the part where it legitimises the adoption of adults to applicants who «exceed by at least eighteen years the age of those they intend to adopt», clearly integrates the aforementioned limit to the burden of compliant interpretation.
4.– Also in a preliminary way, the objection of the State Attorney's Office must be examined, which asserts the inadmissibility of the alleged question of constitutional legitimacy, theoretically deriving from the substantial manipulative nature of the petitum given the lack of a «single constitutionally compliant solution».
4.1.– The objection is unfounded.
This Court has repeatedly stated that the admissibility of questions of constitutional legitimacy is not so much conditioned by the existence of a single constitutionally obligatory solution, but by the presence in the legal system of one or more constitutionally adequate solutions, which fit into the regulatory fabric coherently with the logic pursued by the legislator (ex plurimis, judgments no. 221 of 2023, no. 252 and no. 224 of 2020). Only «if there is no constitutionally adequate solution or if “overcoming the proposed doubts of constitutional legitimacy requires a systemic intervention of the legislator” (judgment no. 47 of 2023), then the question is inadmissible» (judgment no. 221 of 2023, which cites, in terms, judgments no. 202, no. 143, no. 100 and no. 1 of 2022, no. 151, no. 59, no. 33 and no. 32 of 2021, no. 80 and no. 47 of 2020).
In the present case, from the following exposition the existence of constitutionally adequate solutions to the doubt of constitutional legitimacy raised by the referring court emerges.
5.– Coming to the merits of the questions posed, before proceeding to the evaluation of the individual criticisms, it seems appropriate to reconstruct the historical-regulatory and jurisprudential framework within which the raised questions of constitutional legitimacy are inserted.
5.1.– Until the early 1900s, adoption retained, borrowing it from Roman law, the nature of an instrument of the aristocratic tradition and the upper middle class, used by those who did not have descendants to whom to transmit their surname and their assets, and had reached an age in which they presumably could no longer have them, and was based on the consent exchanged between adults.
It was only through special legislation (in particular, Royal Decree-Law no. 1357 of 31 July 1919, containing «Rules for the adoption of war orphans and those born out of wedlock during the war period», converted, with modifications, into Law no. 2137 of 6 December 1925), with favourable rules intervening to help minors left without family and without assistance, following the great upheavals caused by the First World War, that the need to raise and educate the adopted child within the new family, a need corresponding, in addition to philanthropic-welfare purposes, to the intent to replace and better imitate nature, began to be taken into consideration.
It was thus allowed «the adoption of war orphans and foundlings born during that period who had not reached the age limit (and therefore without their consent)» (judgment no. 11 of 1981, point 4 of Legal Reasoning), in derogation from the discipline of the Civil Code of 1865, which set the limit of eighteen years for adoptees.
5.2.– Only with the promulgation of the Civil Code of 1942 was the possibility of adopting minors introduced in a general way through a discipline which, unified, was also applicable to children from the age of eight. It was, however, still a contract between the parent of the child to be adopted and the adopter, who did not necessarily have to be married: the aim continued to be essentially that of guaranteeing succession to those who had no descendants.
The minimum age difference of eighteen years between the adopter, no less than fifty years of age, and the adoptee, set by the aforementioned Article 291 of the Civil Code, encountered a possibility of derogation where it was established that in the event of «exceptional circumstances […] the Court of Appeal may authorise the adoption if the adopter has reached at least the age of forty years and if the age difference between the adopter and the adoptee is at least sixteen years».
This was a provision that, not contained in the Project and inserted in the final text, was motivated in the report of the Minister of Justice with reference both to the power recognised to the Court of Appeal to «assess the circumstances of the case» (judgment no. 44 of 1990, point 3 of Legal Reasoning), and to the circumstance that «the minimum difference of sixteen years» was still valid to save the traditional principle of adoptio imitatur naturam.
5.3.– With Law no. 431 of 5 June 1967 (Amendments to Title VIII of Book I of the Civil Code “On Adoption” and insertion of the new Chapter III with the title “On Special Adoption”), in acceptance of requests that had highlighted the need for a specific discipline for the adoption of minors, to be differentiated from that laid down for adults, the institution of special adoption with legitimising effect was introduced in the Civil Code.
This was a «regulatory complex, clearly addressed to the protection of the interest of the minor under the age of majority in a state of abandonment» (judgment no. 11 of 1981, point 4 of Legal Reasoning) which, derived from the European Convention on the Adoption of Minors, signed in Strasbourg on 24 April 1967, ratified and made enforceable by Law no. 357 of 22 May 1974, definitively shifted the discipline of adoption to the interests of the adoptee and, attributing centrality to the figure of the minor, came to equate its regulation to natural filiation.
Ordinary adoption continued to apply to adults and minors from the age of eight, with the maintenance of the minimum age difference between adopter and adoptee of eighteen years and with the setting of the minimum age for adoption at thirty-five years, a limit reducible, in exceptional cases, to thirty years.
5.4.– The subsequent and fundamental junction along the path of progressive emancipation of the adoption of minors from ordinary adoption occurred with Law no. 184 of 1983, with which the discipline of the adoption of subjects under the age of majority was entirely transferred outside the Civil Code.
5.4.1.– With this regulatory intervention, the adoption of the minor, as a new general figure, becomes functional to the creation of a family for the child who is without one. The adoption determines the termination of the adopted child's relations with the family of origin and the acquisition, on his behalf, of the new status of a child of the adopters, who must have been married to each other for at least three years, while respecting the age difference with the adoptee of at least eighteen years and not more than forty. A dual effect is thus achieved on the status of the adoptee, constitutive and extinctive, which «is linked to the very assumption of the adoption: the declaration of adoptability based on the state of abandonment […] (Article