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FIRST
SECTION
CASE OF KRUŠKOVIĆ v. CROATIA
(Application
no. 46185/08)
JUDGMENT
STRASBOURG
21 June
2011
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 Krušković
v. Croatia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Anatoly Kovler, President,
Nina
Vajić,
Peer Lorenzen,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska, judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46185/08) against the Republic
of Croatia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Croatian national, Mr Branko Krušković
(“the applicant”), on 1 September 2008.
- The
applicant was represented by Mr G. Marjanović, a lawyer
practising in Rijeka. The Croatian Government (“the
Government”) were represented by their Agent, Ms Š.
StaZnik.
- On
10 March 2010 the President of the First Section decided to
communicate to the Government the complaint under Article 8 of the
Convention concerning the applicant's right to respect for his
private and family life. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Jurdani.
- On
25 February 2003 the applicant was divested of his legal capacity
(poslovna sposobnost) by a decision of the Opatija Municipal
Court (Općinski sud u Opatiji). The decision was based on
a report by a psychiatrist, who established that the applicant
suffered from organic personality disorder and antisocial personality
disorder as a result of his long-term drug abuse. The psychiatrist
recommended that the applicant be divested of his legal capacity for
a period of at least five years in order to undergo psychiatric
treatment.
- On
2 April 2003 the Opatija Social Welfare Centre (Centrar za
socijalnu skrb Opatija) appointed the applicant's mother,
Lj.I.G., as his guardian.
- On
29 September 2006 the Opatija Social Welfare Centre appointed the
applicant's father, D.K., as his guardian since his mother had fallen
ill. On an unspecified date the same centre appointed its employee
J.L as the applicant's guardian.
- On
30 June 2007 K.S. gave birth to a daughter, K., and named the
applicant as the child's father. On 17 August 2007 the applicant,
with the consent of the child's mother, gave a statement at the
Rijeka Birth Registry (Matični ured Rijeka) saying that
he was the father of the child, and he was subsequently registered as
such on the child's birth certificate. On 14 September 2007 the
applicant gave the same statement before the Rijeka Welfare Centre
(Centar za socijalnu skrb Rijeka).
- On
19 October 2007 the Rijeka Social Welfare Centre informed the Birth
Registry that the applicant had been divested of his legal capacity.
- The
Rijeka Birth Registry instituted proceedings in the
Primorsko-goranska County Office of State Administration (Ured
drZavne uprave u Primorsko-goranskoj Zupaniji) for the annulment
of the registration of the applicant as K.'s father. On 29 October
2007 the County Office gave a decision ordering that an amendment be
made to the child's birth certificate annulling the previous note
stating that the applicant was the father of the child, on the ground
that as a person divested of his legal capacity he did not have the
right to recognise K. as his child before the law.
- This
decision was not served on the applicant, since he had been divested
of his legal capacity. It was served on his mother.
- On
21 March 2010 the Opatija Welfare Centre brought a civil action in
the Opatija Municipal Court against the applicant, K.S., and K.,
seeking that the Municipal Court establish that the applicant was
K.'s father. The proceedings are still pending.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Family Act (Obiteljski
zakon, Official Gazette
nos. 116/2003, 17/2004,
136/2004 and 107/2007) read:
Section 56
“(1) ... paternity may be recognised
before a registrar of a registry office, a social welfare centre or a
court ...
...”
Section 61
“(1) The child's mother shall give
consent to the registering of the recognition of paternity.
...”
Section 73
“A social welfare centre may lodge a civil claim
seeking ... to establish paternity up until the child's eighteenth
birthday.”
Section 159
“(1) An adult who, owing to mental
illness or for other reasons, is not able to care for his or her own
needs, rights and interests, or who presents a risk for the rights
and interests of others, shall be partially or completely divested of
his or her legal capacity by a court of law in non-contentious
proceedings.
(2) Before adopting a decision under
paragraph 1 of this section, a court shall obtain the expert opinion
of a medical expert about the health conditions of the person
concerned ...”
Section 162
“The competent social welfare centre shall place
under guardianship any person ... divested of his or her legal
capacity ...”
Section 179
“(1) The guardian shall take care of the person,
rights, obligations and well-being of the ward with due diligence,
manage his or her assets and take measures to enable the ward to have
an independent working and personal life.
...”
Section 184
“(1) The guardian represents the ward.
...”
Section 185
“In order to undertake more extensive measures
concerning the person, personal status or health of the ward, the
guardian shall obtain prior consent from a social welfare centre.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that he had been denied the right to be
registered as the father of his biological child. 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
1. Applicability of Article 8
- The
Government argued that the applicant's statement that he was the
father of K. could not produce any legal consequences and that
therefore there had been no violation of his right to respect for his
private life. Consequently, Article 8 was not applicable to the facts
of the present case.
- The
applicant contested that argument.
- The
Court must determine whether the right asserted by the applicant
falls within the scope of the concept of “respect” for
“private and family life” set forth in Article 8 of the
Convention.
- As
regards the issue of paternity, the Court has held on numerous
occasions that paternity proceedings do fall within the scope of
Article 8 (see, for example, Rasmussen v. Denmark, 28
November 1984, § 33, Series A no. 87, and Keegan v.
Ireland, 26 May 1994, § 45, Series A no. 290).
In this connection, the Court has held that the notion of “family
life” in Article 8 is not confined solely to marriage-based
relationships but may also encompass other de facto “family
ties” where sufficient constancy is present (see, for example,
Kroon and Others v. the Netherlands, 27 October 1994, §
30, Series A no. 297 C).
- The
present case differs from the paternity cases cited above in so far
as the applicant himself has not instituted any proceedings before
the national courts to establish his paternity, but simply claims,
with the consent of the child's mother, that he is the biological
father of the child K.
- The
Court has already held that the legal relationship between a child
born out of wedlock and his or her natural father falls within the
ambit of Article 8 of the Convention (see Mikulić v. Croatia,
no. 53176/99, §§ 50 55, ECHR 2002 I.). There
is no reason to hold otherwise in the present case.
- The
facts of the case accordingly fall within the ambit of Article 8.
2. Exhaustion of domestic remedies
- The
Government argued that the complaint under Article 8 of the
Convention was premature because the proceedings concerning his
paternity were still pending.
- The
applicant argued that these proceedings had been instituted only
after the present application had been communicated to the respondent
Government and that his legal position, irrespective of the
proceedings the Government referred to, was incompatible with the
requirements of Article 8 of the Convention.
- The
Court considers that the question of exhaustion of domestic remedies
should be joined to the merits, since it is closely linked to the
substance of the applicant's complaint about the State's alleged
failure to ensure that his paternity was promptly recognised in law.
- The
Court further considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. Moreover, it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
applicant argued that he had no possibility of having his paternity
of K. established and that in that respect he was left in a legal
void. The fact that a competent social welfare centre could institute
court proceedings to establish his paternity was irrelevant since
there was no obligation or time-limit for a centre to do so. Nor was
his guardian obliged to take any action in that regard. He had
repeatedly asked the Opatija Social Welfare Centre to take legal
action in order to have his paternity of K. registered, but to no
avail. A situation where his paternity had not been registered for
more than two and a half years could not be in the interests of the
child either.
- The
Government argued that the applicant had been divested of his legal
capacity because it had been established that he could not care for
his own interests and, therefore, placing the applicant under
guardianship was in his best interests. A person divested of his
legal capacity could not undertake any legal act and it was in the
best interests of the applicant and K. that he could not give any
legally binding statement concerning his paternity of K. His
paternity could only be established in court proceedings by DNA
analysis. Proceedings for establishing the applicant's paternity
before a regular court had been instituted and were still pending.
Such proceedings could be instituted up until the child's eighteenth
birthday.
- The
Court reiterates that while the essential object of Article 8 is to
protect the individual against arbitrary interference by public
authorities, it does not merely compel the State to abstain from such
interference: in addition to this negative undertaking, there may be
positive obligations inherent in an effective respect for private or
family life. These obligations may involve the adoption of measures
designed to secure respect for private life even in the sphere of the
relations of individuals between themselves (see X and Y v. the
Netherlands, 26 March 1985, § 23, Series A no. 91;
Botta v. Italy, 24 February 1998, § 33, Reports of
Judgments and Decisions 1998 I; and Mikulić,
cited above, § 57).
- However,
the boundaries between the State's positive and negative obligations
under Article 8 do not lend themselves to precise definition. The
applicable principles are nonetheless similar. In determining whether
or not such an obligation exists, regard must be had to the fair
balance which has to be struck between the general interest and the
interests of the individual; and in both contexts the State enjoys a
certain margin of appreciation (see Mikulić, cited above,
§ 58). Nevertheless, Article 8 does not give the Contracting
States an unlimited power of appreciation. The Court is responsible
for ensuring the observance of those States' engagements and is
empowered to give the final ruling on whether a “restriction”
is reconcilable with the guarantees of Article 8 of the Convention.
The domestic margin of appreciation thus goes hand in hand with
European supervision.
- As
regards the issues pertinent to the present case, the Court accepts
that restrictions on the rights of persons divested of legal
capacity, even when they occur in the sphere of their private and
family life, are not in principle in contradiction with the
requirements of Article 8 of the Convention.
- However,
these restrictions should, in principle, be subject to the relevant
procedural safeguards. At this juncture the Court reiterates the
fundamentally subsidiary role of the Convention. Under the system of
protection established by the Convention it is thus for the national
authorities to make the initial assessment both of the existence of a
problem of public concern warranting measures of restriction of the
personal rights and of the remedial action to be taken (see, mutatis
mutandis, Handyside v. the United Kingdom, 7 December
1976, § 48, Series A no. 24, and James and Others v. the
United Kingdom, 21 February 1986, § 46, Series A no. 98).
In line with the same principle, it is also primarily for the
national authorities to ensure by whatever means they deem
appropriate compliance with their obligations under the Convention.
This Court is concerned with the supervision of the implementation by
Contracting States of their obligations under the Convention.
- Thus,
the Court's task is not to substitute itself for the competent
Croatian authorities in determining the most appropriate methods for
establishing paternity through judicial proceedings in Croatia, but
rather to review under the Convention the decisions that those
authorities have taken in the exercise of their power of
appreciation. The Court will therefore examine whether Croatia, in
its handling of the issue of the applicant's paternity of K., is in
breach of its positive obligation under Article 8 of the Convention
(see, for instance, Hokkanen v. Finland, 23 September 1994,
§ 55, Series A no. 299-A, and, mutatis mutandis,
Handyside v. the United Kingdom, cited above, § 49).
- The
Court notes in the present case that under the relevant domestic law
the applicant has no possibility of giving any statement as to his
paternity of K. As a person divested of his legal capacity he is not
allowed to institute any proceedings to have his paternity
established. In that respect he is entirely dependent on the actions
of the competent social welfare centre.
- In
the Court's opinion, persons in the applicant's situation have a
vital interest, protected by the Convention, in establishing the
biological truth about an important aspect of their private and
family life and having it recognised in law.
- As
to the position of the applicant in this regard, the Court notes that
there was no possibility for the applicant to recognise his paternity
before the national authorities or to institute any proceedings in
order to prove his paternity. While this position might be seen as
justified in respect of persons who have been divested of their legal
capacity in order to protect them from giving legally binding
statements which run contrary to their interests or even contrary to
the facts, the Court is mindful of the following.
- In
the present case both the applicant and the child's mother agree that
the applicant is K.'s biological father.
- Soon
after K.'s birth on 30 June 2007 the applicant gave a statement that
he was the father of K. However, that statement could not have legal
effect because the applicant had been divested of his legal capacity.
The relevant authorities, however, did not invite the applicant's
father, who appears to have been his legal guardian at that time, to
give his consent to the applicant's recognition of his paternity. If
J.L. had already been appointed as the applicant's guardian at that
time, it was her duty, as an employee of the Opatija Social Welfare
Centre, to take care of the applicant's interests. There is no doubt
that the recognition and registration of his paternity of K. was of
vital interest for the applicant. However, the competent social
welfare centre at the time when K. was born and the applicant was
making attempts to have his paternity registered took no steps to
assist the applicant in his attempt to have his paternity recognised
in law.
- According
to the Government, the only possible means for the applicant to have
his paternity established is by the institution of civil proceedings
to that end by the competent social welfare centre. In the
proceedings instituted by the social welfare centre claiming that the
applicant is the biological father of K, the applicant has the status
only of defendant. The Court notes, however, that the applicant has
never denied his paternity and that it is he who actually wants his
paternity to be established.
- Furthermore,
while proceedings for establishing paternity may be instituted up
until the child's eighteenth birthday, there is no legal obligation
under the national law on the relevant national authorities
responsible for the applicant to institute such proceedings at all
and consequently there are no time-limits for the competent
authorities to answer the applicant's claim that he is the biological
father of K. Thus, the social welfare centres enjoy unlimited
discretion as to when to take any action in order to ensure that the
paternity of persons divested of legal capacity is properly
established and registered, or whether to take any action at all.
- As
a consequence of the above-described legal position, the applicant
was left in a legal void until the proceedings for establishing his
paternity were instituted. Furthermore, he had no means to compel the
Opatija Social Welfare Centre to institute such proceedings. Thus,
more than two and a half years passed between the time when the
applicant gave his statement that he was the biological father of K.
and the institution of the court proceedings in the matter by the
Opatija Social Welfare Centre.
- Contrary
to the Government's arguments, the Court cannot accept that this
situation is in the best interests of either the applicant or the
child. In this connection, the Court reiterates that a child born out
of wedlock also has a vital interest in receiving the information
necessary to uncover the truth about an important aspect of their
personal identity, that is, the identity of their biological parents
(see Mikulić, cited above, § 64).
- Against
the above background, the Court considers that a fair balance has not
been struck between the public interest in protecting persons
divested of their legal capacity from giving statements to the
detriment of themselves or others, and the interest of the applicant
in having his paternity of K. legally recognised.
- Having
regard to the Government's objection that was joined to the merits of
the complaint, the Court notes that the relevant national authorities
instituted the court proceedings for the establishment of the
applicant's paternity only more than two and half years after the
applicant had requested them to do so, thus allowing a situation to
arise in which the claim by the applicant and the child's mother that
the applicant was the biological father of K. was ignored for no
apparent reason.
- In
these circumstances, the Court finds that the respondent State has
failed to discharge its positive obligation to guarantee the
applicant's right to respect for his private and family life.
Accordingly, the Court finds that there has been a violation of
Article 8 of the Convention and dismisses the Government's objections
as to the exhaustion of domestic remedies.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Articles 2 and 14 of the
Convention that he had no means of subsistence and that he had been
discriminated against.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. It follows that it is inadmissible
under Article 35 § 3(a) as manifestly ill-founded and must
be rejected pursuant to Article 35 § 4 of the
Convention.
III. 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 1,200 euros (EUR) per month in respect of
maintenance for himself and his child and EUR 300,000 in respect of
non-pecuniary damage. He also sought the immediate registration of
his paternity of K. in the birth register.
- The
Government argued that the amounts claimed for maintenance were not
related to the present application and that the claim for
non-pecuniary damage was excessive and unfounded.
- The
Court notes that in the present case a violation of Article 8 has
been found solely on account of the applicant's position as regards
the recognition of his paternity of K. in law. Therefore, there is no
causal link between the violation found and the claim for monthly
maintenance.
- On
the other hand, the Court considers that the applicant must have
suffered some non-pecuniary damage owing to the fact that his
paternity has not been recognised. Making its assessment on an
equitable basis, the Court awards the applicant EUR 1,800 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed EUR 100 for postal expenses incurred before
the Court.
- The
Government made no comment.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers that the sum claimed should be awarded in full, plus any
tax that may be chargeable on that amount.
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
- Decides to
join
to the merits the
Government's objection as to the exhaustion of domestic remedies and
rejects it;
- Declares the complaints concerning the
applicant's right to respect for his private and family life
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, which are to be converted into Croatian kunas at the rate
applicable on the date of settlement:
(i) EUR
1,800 (thousand eight hundred euros), plus any
tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR
100 (one hundred euros), plus any tax that may
be chargeable to the applicant, in respect of costs and
expenses;
(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 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Anatoly
Kovler
Registrar President
