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FOURTH SECTION
CASE OF PAULÍK v. SLOVAKIA
(Application no. 10699/05)
JUDGMENT
STRASBOURG
10
October 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Paulík v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
Šikuta, judges,
and Mr T.L. Early, Section
Registrar,
Having deliberated in private on 19 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 10699/05)
against the Slovak Republic lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Slovakian national, Mr
Jozef Paulík (“the applicant”), on 28 February
2005.
- The applicant was represented by Ms Z. Kupcová,
a lawyer practising in Bratislava. The Slovakian Government (“the
Government”) were represented by their Agent, Mrs A. Poláčková.
- On 9 June 2005 the President of the Chamber decided
that the application should be given priority under Rule 41 of the
Rules of Court.
- On 22 August 2005 the President decided to communicate
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it was decided to examine the merits of
the application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1931 and lives in Bratislava.
- In 1966 the applicant had a sexual relationship with a
woman who gave birth to a daughter, I., on 17 December 1966.
- As the applicant denied that he was the father, the
mother brought proceedings in the Bratislava Regional Court (then
Mestský súd, at present Krajský súd)
for a declaration of paternity.
- On 31 January 1967 the mother married another man.
- On 2 February 1970 the Regional Court found that the
applicant was the father of I. and ordered him to contribute to her
maintenance.
- The Regional Court reached its finding after hearing
evidence from several witnesses. It also had regard to comprehensive
documentary evidence and took into consideration the results of a
blood test, a test known as a “bio-hereditary test”
(dedičsko-biologická skúška) and a
report prepared by a sexologist.
It was established that the applicant had had intercourse with the
mother sometime between 180 and 300 days before I.’s birth. In
such cases, a presumption of paternity arose under Article 54 of the
Family Code, as worded at the time (see “Relevant domestic law
and practice” below), unless there were important grounds to
rebut the presumption. No such important grounds were, however,
established.
- The judgment of 2 February 1970 became final and
binding and the applicant complied with it, in particular by paying
the maintenance. He did not, however, have any contact with I. as the
mother was opposed to it.
- I. learned of the applicant’s existence when she
obtained her first identity card. She and the applicant met for the
first time shortly before she left secondary school. Subsequently,
the applicant started seeing I. and, over time, their meetings became
more frequent. The applicant provided I. and, after she married, also
her family with financial support and developed emotional ties with
her and her family.
- In 2004 the applicant and I. had a quarrel over a
financial contribution, following which I. proposed that the issue of
the applicant’s paternity be retested.
- Subsequently, I., the mother and the applicant
voluntarily submitted to a DNA blood test with a view to determining
whether the applicant was indeed I.’s father. On 18 March 2004,
on the basis of the test, an expert drew up a report in which he
found that the applicant was not I.’s father. I. and her family
subsequently broke off all contact with the applicant.
- The applicant then requested the prosecution service
to challenge his paternity under Article 62 of the Family Code. He
maintained that he was not I.’s biological father and that the
declaration of his paternity had been made in a final court judgment
on the basis of expert evidence that corresponded to the state of
scientific knowledge at that time. Although methods for establishing
paternity had evolved and he had fresh proof that he was not I.’s
father, he had no means, ordinary or extraordinary, available to him
under the Family Code or the Code of Civil Procedure for bringing the
legal position into line with the biological reality.
- On 2 December 2004 the Bratislava V. District
Prosecutor interviewed I. in connection with the applicant’s
motion. She stated inter alia that if the applicant did not
want her to be his daughter, she had no objection to his denial of
paternity.
- The Bratislava Regional Prosecutor and the Prosecutor
General informed the applicant in letters of 30 December 2004 and 31
March 2005 respectively that determination of his paternity was res
judicata and that the prosecution service lacked the competence
to have the matter reviewed by a court.
- On 4 March 2005 the applicant wrote to the Chairman of
the National Council of the Slovak Republic (Národná
rada Slovenskej republiky) and to the Chairman of the
Constitutional Affairs Committee of the National Council requesting
them to take legislative measures with a view to securing the
effective protection of his rights. In response, the secretary to the
Chairman of the National Council referred the applicant to the
Prosecutor General and advised him to request the Prosecutor General
to challenge the 1970 judgment by way of an extraordinary appeal
on points of law (mimoriadne dovolanie).
- On 7 March 2005 the applicant, who was represented by
a lawyer, lodged a complaint under Article 127 of the Constitution
with the Constitutional Court (Ústavný súd).
The complaint was directed against all levels of the public
prosecution service and the National Council.
The applicant maintained that there was a discrepancy between the
legal position created by the judgment of 1970 and the real situation
reflected in the DNA report of 2004 and that there were no legal
means of removing that incongruity under the Code of Civil Procedure
or the Family Code.
According to the applicant, neither the general public nor I. had any
legitimate interest in maintaining that situation. Conversely, he had
an interest in ensuring that the legal position and biological
reality corresponded. The applicant also stated that the authorities
had failed to take adequate positive measures to protect his rights.
As a result, he had wrongly been identified as I.’s father in
various public documents and records, such as the registers of births
and marriages. The information about his paternity had also been
included in his medical records and employment files. His identity
had thus been affected and he had no way of clarifying the matter.
Moreover, in law he was related to I.’s family. Thus, in the
event of need, she and her children would be able to oblige him to
contribute to their maintenance. As I. was legally his daughter, she
was also his heir, which limited his freedom of testamentary
disposition.
- The Constitutional Court examined the complaint as a
matter of priority and on 17 March 2005 declared it inadmissible. It
observed that the prosecution service had not been guilty of any lack
of diligence in dealing with the applicant’s claims. Although
the outcome had not been to the applicant’s satisfaction, they
had dealt with his claims in accordance with the existing law. Thus,
in so far as the complaint was directed against the prosecution
service, the Constitutional Court ruled that it was manifestly
ill founded. As for the remainder of the complaint, it observed
that issues of paternity fell within the jurisdiction of the ordinary
courts, which were not only bound by national law but also by
international instruments. It could not therefore be assumed that
they would have refused to protect the applicant’s interests if
he were to have recourse to them. As he had not done so, the
remainder of his complaint was inadmissible for non exhaustion
of the available remedies.
II. RELEVANT DOMESTIC LAW
A. Family Code (Law no. 94/1963 Coll., as amended, in
force until 31 March 2005)
- Pursuant to Article 51 § 1, a husband whose wife
gave birth during the marriage or no later than 300 days after the
marriage was dissolved or annulled was considered to be the child’s
father.
- Otherwise the father was considered to be the man whom
both parents had declared to be the father (Article 52 § 1).
- Under Article 54, if paternity was not established by
a joint declaration by the parents, the child or the mother could
institute proceedings for its determination by a court. In such
cases, unless there were important grounds for excluding his
paternity, a presumption arose that the father was the man who had
had intercourse with the mother no less than 180 and no more than 300
days before the birth.
- A husband could deny paternity in court within 6
months after learning that his wife had given birth to the child
(Article 57 § 1). Similarly, the wife could contest her
husband’s paternity within 6 months after the birth (Article 59
§ 1).
- If paternity had been established by a joint
declaration by the parents, it could be contested by either the man
or the mother within six months after the birth or the declaration,
whichever was the later. The man was entitled to contest paternity in
this situation only if there was evidence to exclude the possibility
of his being the father (Article 61).
- After the expiry of the relevant six-month time limit,
paternity could still be challenged by the Prosecutor General if the
interests of society so required (Article 62).
B. Family Code (Law no. 36/2005 Coll., in force from 1
April 2005)
- Even after the time limit for the parents to deny
paternity has expired, paternity can still be challenged by the
child. However, such a challenge will only be admissible if it is in
the child’s interest and at least one of the parents is still
alive (Article 96).
C. Code of Civil Procedure (Law no. 99/1963., as
amended)
- Article 159 §§ 1 and 3 provide that a
judgment which has been duly served and can no longer be appealed is
final and binding (právoplatný). Once a case
has been decided and the decision has become final and binding, it
may not be re-examined.
- Under Article 228 § 1 a party to civil
proceedings can challenge final and binding judgments by lodging a
request to re-open the proceedings (a) where facts, decisions or
evidence have come to light which the requesting party could not use
in the original proceedings for reasons beyond his or her control and
which may result in a more favourable decision for the requesting
party; (b) where evidence can be examined which could not be examined
in the original proceedings and may result in a more favourable
decision for the requesting party; (c) where the decision against the
requesting party was the consequence of a criminal offence by the
judge; and (d) where the European Court of Human Rights has found
that the requesting party’s human rights or fundamental
freedoms have been violated in a decision or the procedure that
preceded it and the consequences of the violation were serious and
have not been adequately redressed by the award of just satisfaction.
- Article 230 § 1 provides that a request to reopen
proceedings must be lodged within three months from the date on which
the party concerned learned of or was able to rely on the grounds for
reopening the case.
- Pursuant to Article 230 § 2, once a judgment
has been final and binding for three years, a request to reopen the
proceedings can only be lodged in cases referred to under Article 228
§ 1 (a) (provided the contested judgment was based on a criminal
judgment that has since been quashed), (c) or (d). The time allowed
for lodging a request to reopen the proceedings cannot be extended.
D. Civil Code
- An ascendant may disinherit a descendant for any of
the reasons set out in paragraph 1 of Article 469a. These
include situations in which the descendant (a) contrary to bonos
mores has failed to provide the ascendant with necessary
assistance in illness, old age or other serious circumstances; (b)
has consistently shown no interest in the ascendant; (c) has been
convicted and sentenced for an intentional offence to no less than
one year’s imprisonment; and (d) has led a constantly
disorganised life.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The Government submitted that the applicant had failed
to comply with the requirement under Article 35 § 1 of the
Convention to submit the application within six months. They noted
that the applicant had learned that he was not I.’s biological
father from the expert report of 18 March 2004. While
conceding that there were currently no legal means available to the
applicant to challenge his paternity, the Government argued that the
time-limit had started to run on the date mentioned and had expired
on 17 September 2004. As the application had not been lodged
until 28 February 2005, it was out of time. The Government were
of the view that the circumstances of the present case were not such
as to amount to a continuing violation of the applicant’s
rights. They argued, lastly, that the position had not been affected
by the prosecution service’s letters of December 2004 and March
2005 since they merely explained the relevant law and did not
constitute a substantive decision.
- The applicant disagreed. He submitted that his
application did not directly concern his discovery on 18 March 2004
that he was not I.’s biological father, but rather the fact
that, as a result of the authorities’ subsequent reactions and
as the Government had admitted, he had no means of challenging his
paternity. The applicant’s main contention was that that
situation constituted a continuing violation of his rights to which
the six months rule did not apply. The application merely had to
be lodged within a reasonable period, which it had been. In
the alternative, the applicant argued that the time limit
under Article 35 § 1 of the Convention had commenced at the
earliest on 30 December 2004, the date of the letter from the
Bratislava Regional Prosecutor, and that, accordingly, the
application had been submitted in time. In support of that argument
he emphasised that not even the Constitutional Court had dismissed
his complaint as being outside the statutory two-month time limit.
- The Court notes that the applicant learned that he was
not I.’s biological father on 18 March 2004. He sought to have
his paternity contested by the public prosecution service. As the
public prosecution service declined to act, the applicant then sought
a remedy in the Constitutional Court, which did not reject the
applicant’s complaint as being out of time. In these
circumstances the Court finds that the “final decision”
for the purposes of Article 35 § 1 of the Convention was the
Constitutional Court’s decision of 17 March 2005. That is the
date when the six month period referred to in that Article
started to run. The application was lodged on 28 February 2005. It
cannot, therefore, be rejected as being out of time.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained that the respondent State had
failed to discharge its positive obligation to ensure respect
for his private and family life, in particular in that it had not
provided him with any legal means to challenge the declaration of
paternity after he learned in 2004 that he was not I.’s
biological father. He relied on Article 8 of the Convention, the
relevant part of which reads as follows:
“1. Everyone has the right to respect
for his private and family life ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions of the parties
- The Government admitted that, after learning that he
was not I.’s biological father, the applicant had had no legal
means of disclaiming legal paternity, which had been judicially
established in 1970. The applicant had been a party to the
proceedings that had ended with the declaration of paternity and had
had ample opportunity to assert his rights. Once the judgment of 1970
had become final, the matter was considered res iudicata. It
could only be judicially re-examined in the framework of
extraordinary remedies, recourse to which was subject to time limits.
As the applicable time limits had already expired, the issue of
the applicant’s paternity could no longer be reopened. In the
Government’s view, the Convention could not be interpreted as
guaranteeing, as such, a right to have proceedings reopened
without any limits in time.
- The Government claimed that the reason for the bar on
reopening paternity proceedings once the applicable time-limit had
expired was the need to ensure stability and legal certainty. It
pursued the legitimate aim of protecting the socially recognised and
accepted interests of children, which had to be weighed against the
competing interests of the applicant as the father and which, in the
circumstances of the instant case, prevailed. Quashing the
declaration of paternity would have had unjustified negative
ramifications on I. such as a change in her identity and the
resultant need to explain that change to the outside world. The
Government concluded that the assessment of these matters fell within
the authorities’ margin of appreciation and that they had not
exceeded that margin.
- The applicant stated that there was a discrepancy
between the legal position and the biological reality as regards
paternity. He could discern no genuine public interest in
perpetuating that discrepancy and submitted that I. had no legitimate
interest in maintaining a false and artificial legal fiction.
Aligning the legal position to the true biological position would, in
the applicant’s view, occasion minor technical changes but no
unjustified substantial changes for I. The applicant emphasised that
I.’s interests were no longer those of a child. She was almost
40, had her own family, had never considered him to be her father,
had no objection to his disclaiming paternity and had broken off all
contact with him after the DNA test. Although the domestic
authorities had been aware of these facts, they had not interpreted
and applied the relevant laws in a way that would afford effective
protection to the applicant’s interests or had taken any other
measures to that end.
2. The Court’s assessment
- The Court has previously examined cases in which a
husband wished to institute proceedings to contest the paternity of a
child. In those cases the question was left open as to whether the
paternity proceedings aimed at the dissolution in law of existing
family ties concerned the applicant’s “family life”
because, in any event, the determination of the father’s legal
relations with his putative child concerned his “private life”
(see Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999
and Rasmussen v. Denmark, judgment of 28 November 1984, Series
A no. 87, p. 13, § 33).
- In the instant case the applicant sought to challenge
the declaration of paternity on the basis of biological evidence
(see, mutatis mutandis, Shofman v. Russia, no.
74826/01, § 31, 24 November 2005). His contention that he
is not I.’s father has direct implications for his private
sphere and concerned matters such as entries in the registers of
births and marriages, his medical records and employment files and,
arguably, also had implications for his social identity in a broader
sense.
Accordingly, the facts of the case fall within the ambit of “private
life” pursuant to Article 8.
- The Court further reiterates that the essential object
of Article 8 is to protect the individual against arbitrary
interference by the public authorities. However, it does not merely
require the State to abstain from such interference: there may in
addition be positive obligations inherent in effective “respect”
for private or family life. The boundaries between the State’s
positive and negative obligations under this provision do not always
lend themselves to precise definition; nonetheless, the applicable
principles are similar. In both contexts regard must be had to the
fair balance that has to be struck between the competing interests of
the individual and the community as a whole, and in both contexts the
State is recognised as enjoying a certain margin of appreciation (see
Shofman, cited above, §§ 33 and 34).
Furthermore, even in relation to the positive obligations flowing
from the first paragraph, “in striking [the required] balance
the aims mentioned in the second paragraph may be of a certain
relevance” (see Powell and Rayner v. the United Kingdom,
judgment of 21 February 1990, Series A no. 172, § 41).
- Under the relevant domestic law the applicant has no
possibility of challenging the judicial declaration of his paternity.
There is no indication that the conclusions reached by the domestic
authorities in this respect were not “in accordance with the
law”. The Court is prepared to accept that the lack of a legal
mechanism to enable the applicant to protect his right to respect for
his private life can generally be explained by the “legitimate
interest” in ensuring legal certainty and security of family
relationships and by the need to protect interests of children (see
Rasmussen, cited above, p. 15, § 41). It remains to
be ascertained whether in the specific circumstances of the present
case a fair balance has been preserved between the interest of the
applicant and the general interest.
- The applicant is seeking a review of the judicial
declaration of his paternity in the light of new biological evidence
which was not known to him at the time of the original paternity
proceedings (contrast to B.H. v. Austria, no.
19345/92, Commission decision of 14 October 1992). His claim is based
on his right to respect for his private life. Owing to the
impossibility of disclaiming his paternity, the applicant suffers the
inconveniences in his personal and working life described in
paragraph 19 above.
- As to the general interest, it is to be noted that the
applicant’s putative daughter is currently almost 40 years old,
has her own family and is not dependent on the applicant for
maintenance (contrast with Yildirim, cited above). The general
interest in protecting her rights at this stage has lost much of its
importance compared to when she was a child. Furthermore, I.
initiated the DNA test and said that she had no objection to the
applicant’s disclaiming paternity. It therefore appears that
the lack of a procedure for bringing the legal position into
line with the biological reality flies in the face of the wishes of
those concerned and does not in fact benefit anyone (see Kroon and
Others v. the Netherlands, judgment of 27 October 1994,
Series A no. 297 C, p. 58, § 40).
- In the light of the foregoing, the Court concludes
that a fair balance has not been struck between the interests of the
applicant and those of society and that there has, in consequence,
been a failure in the domestic legal system to secure to the
applicant “respect” for his “private life”.
There has therefore been a violation of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLES 13 AND 14, READ IN
CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
- The applicant claimed that he had been discriminated
against in the enjoyment of his right to respect for his private life
when compared both to fathers whose paternity had been established on
other grounds and to mothers because, unlike him, they were entitled
to request the Prosecutor General to challenge paternity on
their behalf. In connection with this complaint the applicant also
alleged a lack of an effective remedy. He relied on Articles 13 and
14, read in conjunction with Article 8 of the Convention.
Article 13 of the Convention provides that:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Under Article 14 of the Convention:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Admissibility
- The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
1. The complaint under Article 13, taken in conjunction
with Article 8 of the Convention
- The Court observes that at the central element of this
complaint is the impossibility for the applicant to challenge his
adjudicated legal paternity on the grounds of new biological
evidence. The Court has examined this issue above under Article 8 of
the Convention and has found a violation of that Article. In view of
that finding it finds it unnecessary to examine the facts of the
case separately under Article 13, read in conjunction with Article 8
of the Convention.
2. The complaint under Article 14, taken in conjunction
with Article 8 of the Convention
- The Court observes that the applicability of Article
14 of the Convention to the present complaint has not been disputed.
It reiterates that the right under Article 14 not to be discriminated
against in the enjoyment of the rights guaranteed under the
Convention is violated when States treat differently persons in
analogous situations without providing an objective and reasonable
justification (see, for example, Thlimmenos v. Greece [GC],
no. 34369/97, § 44, ECHR 2000-IV).
- The Government submitted that the applicant could not
be considered to be in an analogous situation for the purposes of
Article 14 of the Convention to the persons with whom he sought
comparison. In their view, the crucial factor was not the legal
ground on which the declaration of his paternity was based, but
rather the fact that his paternity had been declared by means of a
final and binding judicial decision. The other situations relied on
by the applicant were different in that the paternity of the husband
of the mother, or that of the man who declared jointly with the
mother that he was the father, was presumed and could be challenged
in a court.
- The applicant disagreed and reiterated his complaint.
In particular, he asserted that there was only one category of
fathers. All fathers essentially had the same duties, rights and
responsibilities and should be treated equally. There were no
effective legal means at all whereby he could challenge the
declaration of paternity although he had new and conclusive evidence
that he was not the biological father. In contrast, in situations
where paternity was presumed, if new evidence excluding the
possibility of biological paternity came to light, the presumed
father and the mother could request the Prosecutor General to contest
the paternity.
- The Court accepts that there may be differences
between, on the one hand, the applicant and, on the other hand, the
putative fathers and the mothers in situations where paternity is
legally presumed but has not been judicially determined. However, the
fact that there are some differences between two or more individuals
does not preclude them from being in sufficiently comparable
positions and from having sufficiently comparable interests. The
Court finds that with regard to their interest in contesting a status
relating to paternity, the applicant and the other parties in
question were in an analogous situation for the purposes of Article
14 of the Convention (see, mutatis mutandis, Rasmussen
v. Denmark, no. 8777/79, Commission’s report of 5 July
1983, Series A no. 87, p. 24, § 75, and Mizzi v. Malta,
no. 26111/02, § 131, ECHR 2006-...). The legal system afforded
them different treatment in that, unlike the other parties, the
applicant could not request the Prosecutor General to challenge the
declaration of paternity in the courts in the interests of society.
It remains to be ascertained whether this difference had any
objective and reasonable justification.
- For the purposes of Article 14 of the Convention, a
difference of treatment is discriminatory if it “has no
objective and reasonable justification”, that is, if it does
not pursue a “legitimate aim” or if there is “no
reasonable relationship of proportionality between the means employed
and the aim sought to be realised” (see, among other
authorities, Abdulaziz, Cabales and Balkandali v. the United
Kingdom, judgment of 28 May 1985, Series A no. 94, p. 35, §
72). The Court reiterates that the Contracting States enjoy a certain
margin of appreciation when assessing whether and to what extent
differences in otherwise similar situations justify a different
treatment in law (see Rasmussen v. Denmark, judgment of
28 November 1984, Series A no. 87, p. 36, § 40).
- To that end, the Government submitted that in cases of
presumed paternity there were a priori no proceedings for its
determination. Paternity in such cases stemmed directly from the fact
that a child was born in wedlock or that a joint declaration of
paternity had been made by the parents. Such paternity was entered
into the register of births automatically, without material
verification. This entailed a risk of mistakes which might become
apparent only after the expiry of the time within which individuals
with an interest in doing so were entitled to disclaim paternity. It
was therefore justified that, as a last resort, the Prosecutor
General was entitled to initiate judicial proceedings for
rectification of such mistakes even after the expiry of that
time-limit. In contrast, the applicant’s paternity had been
comprehensively examined in a judicial procedure in which he had
enjoyed the full range of procedural rights. Once paternity was
declared in a judicial decision and that decision became final, the
risk of mistakes was lower and, in any event, it was outweighed by
the interest of society in preserving the legal relationship thus
determined. Furthermore, the Government emphasised that the
possibility of requesting the Prosecutor General to challenge a
declaration of paternity was not a full remedy in that the person
making the request bore the entire burden of proof but had no
procedural rights and the decision to accept or reject the request
fell within the exclusive discretionary power of the Prosecutor
General. Finally, the Government pointed out that under the new
Labour Code, which had taken effect on 1 April 2005, the public
prosecution service no longer had the power to contest paternity.
- The applicant disagreed and claimed that the different
treatment which he had received had no acceptable justification. He
emphasised that under the domestic legislative framework no
consideration at all could, and indeed had, been given to the special
features of his case. These included the substantial scientific
progress that had been made between the time of the 1970 judgment and
the 2004 DNA report and the fact that the parties concerned had no
objection to his disclaiming paternity.
- The Court accepts that, as a matter of principle, the
“legitimate interest” in ensuring legal certainty and the
security of family relationships and in protecting the interests of
children may justify a difference in the treatment of persons with an
interest in disclaiming paternity according to whether paternity has
been merely presumed or whether it has been determined in a decision
that has become final. However, the pursuit of this interest in the
present case produced the result that, while the applicant did not
have any procedure by which he could challenge the declaration of his
paternity, other parties in an analogous situation did. Under
the applicable legislative framework, no allowance at all could be
made for the specific circumstances of the applicant’s case,
such as, for example, the age, personal situation and attitude of I.
and of the other parties concerned.
- In the light of the above, the Court finds that there
was no reasonable relationship of proportionality between the aim
sought to be realised and the absolute means employed in the pursuit
of it.
It follows that there has been a violation of Article 14, taken in
conjunction with Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6, TAKEN BOTH ALONE AND
IN CONJUNCTION WITH ARTICLES 13 AND 14 OF THE CONVENTION
- The applicant also complained that the lack of any
procedure by which he could challenge the declaration of his
paternity constituted a separate violation of his right of
access to a court; that for reasons similar to those mentioned above
he had been discriminated against in the enjoyment of that right; and
that he had no effective remedies in respect of those complaints. He
relied on Articles 6, 13 and 14 of the Convention.
Article 6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal....”
A. Admissibility
- The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
- The Court observes that at the heart of this part of
the application is the impossibility for the applicant to challenge
his legal paternity on the grounds of new biological evidence and his
discriminatory treatment in that respect. The Court has examined
these issues above under Articles 8 and 14 of the Convention and has
found a violation of these Articles. In view of those findings it
finds it unnecessary to examine the facts of the case separately
under Article 6 and under Articles 13 and 14, in conjunction with
Article 6 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1, TAKEN
BOTH ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION
- Lastly, the applicant complained that his inability to
challenge the declaration of paternity had ramifications in the
sphere of succession law and so constituted a violation of his
property rights under Article 1 of Protocol No. 1. He further
submitted that he had no effective remedy available, contrary to
Article 13 of the Convention.
- The Government contested those arguments. They
submitted that in so far as the applicant did not want I. to inherit
from his estate, he had the possibility of disinheriting her. In
their view her attitude towards the applicant fell directly within
the purview of Article 469a § 1 (b) of the Civil Code, which
allowed a descendant to be disinherited if he or she permanently
showed no interest in the ascendant. Furthermore, and in any event,
the restriction on the applicant’s freedom of testamentary
disposition was in the public interest, namely promoting cohesion and
safeguarding the economic stability within families. There was
therefore no arguable Convention claim that called for an effective
remedy.
- The applicant submitted that in the circumstances of
his case there was no public interest in preserving his legal
relationship with I. in the sphere of succession law. The ground for
disinheriting under Article 469a § 1 (b) of the
Civil Code did not apply to his situation because I. did not have any
real opportunity to show an interest in him since he himself
currently had no interest in her. She would thus have a well-founded
defence to any attempt to disinherit her and the situation would only
be resolved after his death.
- The Court reiterates that it is not its role to decide
in the abstract whether the applicable domestic law is compatible
with the Convention or whether the domestic law has been complied
with by the national authorities (see Ringeisen v. Austria,
judgment of 16 July 1971, Series A no. 13, p. 40, §
97). In cases arising from individual applications it must as far as
possible examine the issues raised by the case before it (see
The Holy Monasteries v. Greece, judgment of 9
December 1994, Series A no. 301-A, pp. 30-31, § 55). The
relevant part of this application must therefore be examined with
reference to its specific circumstances alone.
- The Court observes that the applicant has not
specified how exactly the abstract succession rules affect his
property sphere. Nor has it been established that it is impossible to
secure a suitable solution to the property aspect of the present
situation by alternative means such as an inter vivos property
arrangement or making out a case for disinheritance.
- To the extent that this part of the application has
been substantiated and raises any issue that is different from that
which has been examined above under Article 8 of the Convention, the
Court has found no appearance of a violation of the applicant’s
rights under Article 1 of Protocol No. 1 taken either alone or in
conjunction with Article 13 of the Convention. It follows that that
the complaints under these provisions are manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 10,000 euros (EUR) in respect of
non pecuniary damage.
- The Government contested that claim.
- The Court accepts that the applicant has suffered
damage of a non pecuniary nature as a result of the State’s
failure to comply with its positive obligation relating to the
applicant’s right to respect for his private life. It finds
that this non pecuniary damage is not sufficiently compensated
for by the finding of a violation of the Convention.
It also notes that pursuant to Articles 228 § 1 (d) and 230 §
2 of the Code of Civil Procedure civil proceedings can be reopened
where the Court has found a violation of the requesting party’s
Convention rights and where serious consequences of the violation are
not adequately redressed by the award of just satisfaction.
Having regard to the above considerations and making an assessment
on an equitable basis, it awards the applicant EUR 5,000 in respect
of non pecuniary damage.
B. Costs and expenses
- The applicant also claimed 12,167
Slovakian korunas (SKK) for the costs and expenses incurred at the
domestic level and SKK 60,897
for those incurred before the Court. The latter amount included SKK
19,950
for the translation into English of the applicant’s
observations on the admissibility and merits of the case in reply to
those of the Government.
- The Government contested the claim.
- According to the Court’s case-law, an applicant
is entitled to reimbursement of his costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
1,800 covering costs under all heads.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares inadmissible the complaint under
Article 1 of Protocol No. 1, taken both alone and in conjunction with
Article 13 of the Convention;
- Declares admissible the remainder of the
application;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there has been a violation of Article
14, taken in conjunction with Article 8 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 6, the complaints under
Articles 13 and 14, taken in conjunction with Article 6, and the
complaint under Article 13, taken in conjunction with Article 8 of
the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage and EUR 1,800 (one thousand eight hundred euros)
in respect of costs and expenses, to be converted into Slovakian
korunas at the rate applicable at the date of settlement, plus any
tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. EARLY Nicolas BRATZA
Registrar President
