A Simple Adoption of the Adults under Protection in Terms of the Convention on Human Rights and Fundamental Freedoms

The article examines the situation where the literal adherence to every letter of French Civil Code violates the man’s rights to privacy, family and adoption. This double discrimination caused by the articles of the French Civil Code and their interpretations constitutes the violation of the right to respect for private and family life, which is protected by the Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). At the same time, it does not take into account the Article 14 of the same Convention invoking judgments of the European Court of Human Rights (ECtHR). In the context of the positive law and, consequently, the legality requirement, courts have to take decisions stipulated by the law. However, the author substantiates the contra legem judicial decision in case of taking a literal interpretation of the positive law that can lead to a grave injustice, and describes the motivation of these decisions de facto and de jure, referring to both ECHR and ECtHR precedents. Judges in Russia can use such decision-making procedures when the literal adherence to the positive law leads to ECHR violation. The article also regards additional obligations and powers of the judge determined by the European Convention for the Protection of Human Rights and Fundamental Freedoms.