Constitutionality Review

Contested Provision

The contested provision stipulates that certain onerous transactions (transaction for consideration) between specified relatives shall be deemed as donations. The phrase “...between the adoptive parent and the adoptee...” cited in the said provision constitutes the contested rule.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the grounds that it deemed onerous transactions between the adoptee and the adoptive parent as donations in a definitive manner, without affording the parties the opportunity to present their claims or defence submission, or to submit evidence, information, and documentation in support thereof. Therefore, it was alleged to be unconstitutional for imposing a disproportionate restriction on the right to property and the right to legal remedies.

The Court’s Assessment

In its previous decisions on actions for annulment concerning provisions of similar content but regulating different kinship relations, the Court found that the right to property and to legal remedies had been restricted. In these decisions, the Court emphasised that the respective rights may be subject only to restrictions prescribed by law, being compatible with the grounds for restrictions set forth in the Constitution, and satisfying the requirement of proportionality (see the Court’s decisions nos. E.2018/9, K.2018/84, 11 July 2018; E.2021/52, K.2021/97, 16 December 2021; E.2021/9, K.2022/4, 26 January 2022).

The cited decisions held that the impugned phrases were deemed precise and foreseeable as to the nature, scope, and consequences of kinship relations, and that the provision containing these phrases was aimed at preventing debtors from shielding assets from creditors and thwarting efforts for securing the collection of debts. In this regard, it was concluded that the contested provision pursued a legitimate aim.

In its assessment concerning the principle of proportionality, however, the Court had observed that the contested provision stipulated that transactions between the debtor and certain close relatives were categorically presumed to be donations, without being subject to any further conditions, and that this presumption was established as an irrefutable fact, precluding any claim or proof to the contrary. The Court had also noted that even circumstances such as full or excess payment for the transacted asset, the transaction being also in the interest of the debtor’s creditors, the absence of any prejudice to creditors, or the facilitation rather than the obstruction of creditors’ efforts to recover and enforce their debts would not suffice to alter this conclusion. It had been also stated that the parties were not afforded the opportunity to assert their claims or defence submissions, nor to present evidence, information, and documentation to substantiate these points. Considering these prior evaluations, that the Court saw no reason to depart from its previous decisions with regard to the contested provision.