AS TO THE ADMISSIBILITY OF
Application no. 20674/07
by Andrzej KLOCEK
The European Court of Human Rights (Fourth Section), sitting on 27 April 2010 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 April 2007,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Andrzej Klocek, is a Polish national who was born in 1934 and lives in Kraków. He is represented before the Court by Ms M. Juśkiewicz, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 August 1982 Ś., with whom the applicant had had sexual contact earlier but to whom he was not married, gave birth to a son, P.
It seems that as the applicant had denied being the father of P., on 16 March 1983 Ś. initiated civil proceedings before the Kraków District Court (Sąd Rejonowy) for a judicial determination of his paternity.
On 18 January 1984, based on the results of a blood-group test (“badanie grupowe krwi”) on the applicant and Ś., the Faculty of Forensic Medicine of the Medical Academy (Katedra Zakładu Medycyny Sądowej Akademi Medycznej) in Kraków drew up a report, in which it stated that the features of the applicant's and Ś's blood were identical and therefore it was neither possible to exclude the paternity of the applicant on the one hand, nor to confirm it on the other.
At a hearing on 13 April 1984 the applicant confirmed that he had had sexual intercourse with Ś., but in August 1981, that is some twelve months before the date of birth of P.
On 24 February 1986 the Kraków District Court declared that the applicant was P's father. The court also ordered him to contribute to his maintenance on a monthly basis.
The judgment of 24 February 1986 became final and binding. The applicant submits that he complied with the court's decision and the maintenance order. He did not lodge an appeal due to the fact that he already had his own family, did not wish to be involved in possible lengthy proceedings and that his financial situation allowed him to provide support for Mrs. Ś. and P.
It appears that on an unknown date the applicant and P. had a dispute, after which the applicant ceased to provide P. with financial support.
On 9 May 2006 the Kraków Regional Court annulled the maintenance order.
On 20 December 2005 the applicant sought to contest his paternity before the Kraków District Court. He relied on the fact that his paternity had been determined in 1986 on the basis of expert evidence corresponding to the state of science at that time, which neither confirmed nor excluded his paternity and that new methods of establishing paternity, such as DNA testing, allowed for its precise determination.
On 10 March 2006 the Kraków District Court dismissed the applicant's claim on the grounds that his case was res iudicata, that the possible conditions for re-opening the proceedings had not been fulfilled, and finally, that he did not have the right to bring an action to challenge his paternity. In this connection, the court relied on Article 63 of the Family and Custody Code (“Kodeks Rodzinny i Opiekuńczy”) according to which only a man married to the mother could lodge such an application.
On 29 June 2006, following the applicant's appeal, the Kraków Regional Court (Sąd Okręgowy) upheld the first-instance judgment and its reasoning.
On 11 January 2007 the Supreme Court refused to entertain a cassation appeal lodged by the applicant.
B. Relevant domestic law and practice
1. Relevant provisions of family law
According to Article 72 of the Family and Custody Code (“the Code”), if there is no legal presumption indicating that the mother's husband is the father of her child, or if such presumption has been rebutted, the paternity of the child may be established by the recognition of paternity by the father or by a decision of a court.
In respect of children born out of wedlock, Article 85 of the Code provides for the presumption that a man who had intercourse with the mother no more than 300 and no less than 181 days before the birth of a child is the father.
A husband can deny paternity in court within 6 months of learning that his wife had given birth to a child (Article 63). Under Article 69 § 1 of the Code the wife may contest her husband's paternity within 6 months of the birth. Similarly, according to Article 70 § 1 of the Code a child may deny paternity of a husband of his/her mother within three years of reaching the age of majority.
According to Article 71 of the Code a denial of paternity is excluded after the child's death.
Finally, under Article 86, paternity may be challenged by a prosecutor at any time, as long as the child is alive.
2. Relevant provisions of civil procedure
According to Article 363 § 1 of the Code of Civil Procedure (Kodeks postępowania cywilnego) a judgment which can no longer be appealed against is final and binding (prawomocny).
Under Article 403 § 2 a party to proceedings can request the re-opening of the proceedings where facts or evidence have come to light which could have an influence on the result of the original proceedings but which the requesting party could not use in the original proceedings.
Article 4011 provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution, a ratified international agreement, or a law or an act by virtue of which a judicial decision was given.
3. Provisions of the Constitution
Article 47 of the Constitution provides that
“(e) everyone shall have the right to legal protection of his private and family life, of his honour and good reputation, and to make decisions about his personal life.”
The relevant parts of Article 190 of the Constitution provide as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”.
4. The Constitutional Court's judgment of 28 April 2003
On 28 April 2003 (K 18/02) the Constitutional Court ruled on a similar issue concerning the lack of standing of a biological father to lodge with a court an action to have his paternity recognised in respect of a child born out-of-wedlock. Before the respective provisions of the Family and Custody Code were repealed as a result of the judgment, such action on behalf of a father could only be brought by the public prosecutor. The Constitutional Court reached the conclusion that the lack of standing before a court of the biological father in proceedings to have his biological paternity recognised in law was in breach of Article 72 of the Constitution, which provided for protection of children's rights as a constitutional principle. It was further stated that this was also in breach of the father's right to respect for his private and family life, guaranteed by Article 47 of the Constitution. Moreover, these provisions breached Article 45 of the Constitution, which guaranteed the right of access to a court. The relevant extracts from the judgment can be found in the Court' s judgment in the case of Różański v. Poland, no. 55339/00, §§ 47-52).
1. The applicant complained under Article 8 of the Convention that Poland has failed to discharge its positive obligation to secure him effective respect for his private and family life, in particular by not providing him with the legal means for challenging his paternity, despite scientific progress and the existence of new methods of determining paternity.
2. Under Article 14 of the Convention, read in conjunction with Article 8 of the Convention, the applicant complained that he had been treated in a discriminatory manner in comparison with fathers whose children are born in wedlock, as he did not have a right of action to challenge paternity.
The applicant complained under Articles 8 and 14 of the Convention that he could not effectively contest his paternity, which constituted a violation of his right to family life and amounted to discriminatory treatment.
The relevant articles of the Convention read as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
“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.”
The Government first submitted that the applicant had failed to exhaust all available domestic remedies because he should have lodged a constitutional complaint with the Constitutional Court requesting it to declare null and void the provisions on the basis of which the domestic courts finally dismissed his claim. Relying on the relevant provisions of the Code of Civil Proceedings, the applicant could then have sought the re-opening of the proceedings in which his paternity had been established.
The Government further submitted that the applicant could have made use of the possibility provided for by section 86 of the Code, namely he could have requested the public prosecutor to lodge on his behalf a claim to deny his paternity. He could also have requested the Ombudsman to bring such an action on his behalf.
The applicant's lawyer did not comment on the Government's submissions as regards non-exhaustion of domestic remedies. She submitted that the applicant had been discriminated against because not being the husband of the child's mother, he could not challenge his paternity which had been established at a time when DNA testing was not available.
As regards the Government's pleas on inadmissibility for non-exhaustion of domestic remedies, the Court does not consider it necessary to examine them, since the complaint under Article 8 is in any event inadmissible for the reasons which follow.
The Court 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 v. Russia, no. 74826/01, §§ 33 and 34, 24 November 2005). 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).
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 direct 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 the interests of children (see Rasmussen v. Denmark, 28 November 1984, § 41, Series A no. 87, p. 15). The Court is of the opinion that, with the passage of time, the rule of legal certainty gradually prevails over the need to protect the interest of concerned parties, especially children who are no longer minors. 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 (see Paulík v. Slovakia, no. 10699/05, § 44, ECHR 2006-XI).
The Court notes that the applicant's paternity was determined judicially on the basis of the evidence which was available at the relevant time.
The Court further notes that the applicant did not appeal against the domestic court's decision establishing his paternity and that for many years he complied with the court's order and contributed to the maintenance of P. and her mother.
The Court also takes into consideration that the applicant only sought to contest his paternity some 20 years after it had been established. By that stage his alleged son was already 23 years' old. The applicant made use of a remedy which was not accessible to him in law, namely he lodged a claim with the court to deny his paternity of P. The claim was dismissed by the domestic court on the ground of res iudicata. The court also examined the applicant's claim as if it were a request for re-opening and found that the pre-requisites for re-opening had not been fulfilled and, moreover, that the applicant did not have legal standing to bring an action to challenge his paternity.
The Court considers that had the applicant presented the domestic authorities with sufficient new evidence to deny his paternity and had the authorities then refused to re-examine the matter, a finding of a violation of the relevant provisions of the Convention could not be excluded (see Paulík, cited above, §§45-47). However, in the present case there is no indication that the applicant had any evidence such as the results of a DNA test which could prove his allegations. His attempt to contest his paternity of P. was thus based on his own personal conviction that he was not P's father. For the Court, the emergence of technical or scientific developments making it possible to verify or challenge the accuracy of a finding of paternity made in the past does not of itself give rise to a right under Article 8 of the Convention to have that finding re-opened. It is for the applicant to present the authorities with reasonable and sufficient evidence to support his allegations (see, Darmoń v. Poland (dec.) 7802/05).
Taking into consideration all the above circumstances the Court does not find it established that the authorities failed to strike a fair balance between the general interest in ensuring legal certainty of family relationships and the applicant's right to have his judicially established paternity reviewed (see, Darmoń, cited above).
The Court therefore finds that the application does not disclose any appearance of a violation of Article 8 of the Convention.
It follows that the complaint under Article 8 is manifestly ill-founded.
As regards the complaint under Article 14, the Court notes that after the Kraków District Court's decision of 24 February 1986 declaring the applicant to be P.'s father and after the expiry of the six-month time-limit referred to in Article 63 of the Family and Custody Code, there are no legal means to challenge paternity available to the mother, the mother's husband or the putative father. Thus, the legal position of all those involved in the present case is similar.
It follows that the complaint under Article 14 of the Convention is likewise manifestly ill-founded.
In these circumstances the Court concludes that the application is manifestly ill-founded as a whole and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously.
Declares the application inadmissible.
Lawrence Early Nicolas
KLOCEK v. POLAND DECISION
KLOCEK v. POLAND DECISION