AS TO THE ADMISSIBILITY OF
Application no. 55339/00
by Stanisław RÓŻAŃSKI
The European Court of Human Rights (First Section), sitting on 10 March 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr L. Garlicki,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 6 March 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the 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, Stanisław Różanski, is a Polish national, who was born in 1960 and lives in Gdańsk. He is represented by Mr P. Rybiński, a lawyer practising in Gdańsk. The Government were represented by their Agent, Mr Jakub 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.
From 1990 to 1994 the applicant lived with B.F. On 29 August 1992 B.F. had a baby, a boy D. He was registered at the Birth Register as having “Stanisław F.” as father, i.e. a fictitious name, consisting of the applicant's first name and the mother's surname.
In April 1994 the relationship ended. B.F. left the child with the applicant and disappeared for over a month. The applicant submits a copy of a letter, in which B.F. states that she leaves him and the boy and that they should now fend for themselves. As the child subsequently fell ill, the applicant took him to a hospital. B.F. took D. from the hospital on 21 May 1994. She then stayed in hiding for several months. Since then the applicant has not had any contacts with the child.
Prior to this, on 18 April 1994, the applicant lodged a motion with the Gdańsk District Court, claiming that the paternity of D. be established and submitting that he was his biological father. He was subsequently summoned by the court to submit certain documents in order to have a guardian appointed who would bring a paternity action on the child's behalf as the under the domestic the alleged biological father, not married to the mother, lacked standing in paternity proceedings. The applicant failed to do so.
In a note of 20 May 1994 the Gdańsk Social Assistance Centre informed the family court about the situation of D. and requested it to take steps to supervise B.F. in her exercise of parental rights. The social assistance officer also referred in her note to the applicant and stated that, in the light of the information received from his sister, in her view he would be unable to take adequate care of the child.
Subsequently the Gdańsk District Court instituted custody proceedings concerning D. By a decision of 26 May 1994 the court ordered that D. be taken into public care. Apparently shortly afterwards this decision was revoked.
In August 1994 the Gdańsk District Court requested the prosecuting authorities to investigate whether B.F. had been committing a criminal offence by exposing D. to immediate danger of serious bodily injury. Such investigations were instituted in November 1995.
By a decision of 27 January 1995 the District Court gave a new decision on the basis of which D. was taken into public care. The custody rights of B.F were restricted and she was only allowed to visit him. The applicant was not a party to the proceedings. B.F. refused to give D. away when police officers came to take him to a children's home.
On that date the applicant lodged a new motion with the District Court to have a guardian appointed to represent D. for the purposes of the paternity proceedings.
Prior to that, on 9 January 1995, the applicant requested the Gdańsk District Prosecutor to institute on his behalf proceedings to have his paternity established in respect of D. In a reply of 5 May 1995, the prosecutor recalled that the applicant, by a motion of 27 January 1995, had requested the civil court to appoint a guardian for the child for the purpose of instituting the paternity proceedings, and that therefore it would not be advisable that the prosecuting authorities considered the applicant's request, which, if successful, would lead to two parallel sets of proceedings pending at the same time, both concerning the determination of the applicant's paternity in respect of D.
In July 1995 the Court rejected the applicant's motion of 27 January 1995 because he had failed to pay the court fee. Subsequently, the applicant paid the fee and the proceedings were resumed.
At a hearing held on 10 November 1995 the applicant withdrew his motion to have a guardian appointed and the court discontinued the proceedings.
On 15 March 1996 B.F. declared before the Gdańsk District Court that her new partner J.M. was D's biological father. On 18 March 1996 she lodged a motion with the District Court to have her full parental rights restored. By a decision of 26 March 1996 the District Court revoked its decision of 27 January 1995 to take D. into public care and ordered that he could stay with her until the termination of the proceedings, considering that since her living conditions had improved, she would be capable of taking adequate care of D. until a final decision on the merits be given.
By a decision of 10 July 1996 the District Court restricted B.F.'s parental rights by appointing a guardian to supervise her in the exercise of her rights.
On 15 July 1996 the new partner of B.F., J. M., was acknowledged as D.'s legal father, following his recognition of paternity.
On 8 August 1996 the applicant lodged with the Gdańsk District Prosecutor a request to institute investigations concerning his parental rights. He alleged that criminal offences had been committed in connection with the relevant proceedings. By a decision of 30 August 1996 the prosecution authorities refused to institute investigations, finding that no laws had been breached in connection with determination of the applicant's parental rights.
On 8 August 1996 the applicant lodged another motion with the District Court, asking again to appoint a guardian to represent the child for the purpose of instituting paternity proceedings. By a decision of 15 November 1996 the District Court dismissed it, stating that the applicant had no right of action, since following the declaration of 15 July 1996 it was J.M. who was D.'s legal father.
On 12 November 1996 the applicant again requested the prosecutor to institute criminal proceedings, alleging that the birth certificate of D. had been forged. On 20 December 1996 the Gdańsk District Prosecutor refused to do so, finding that the child's birth certificate had been amended following the recognition of the paternity of D. by his mother's new partner J.M. The prosecutor observed that under the applicable laws recognition of a child was only possible if the mother gave her consent thereto. No criminal offence had been committed in that D.'s certificate had been rectified to reflect the recognition of paternity, effected with his mother's consent.
The applicant appealed against the prosecutor's decision. On 15 May 1997 the appellate prosecutor dismissed his appeal.
On 15 January 1997 the applicant challenged the decision of the Gdańsk District Court of 15 November 1996 by which it had stated that in view of the fact that J.M. had recognised his paternity of D., the applicant had no standing to bring paternity proceedings. On 29 January 1997 the court dismissed his appeal.
In a letter of 22 January 1997 the President of the Gdańsk District Court informed the applicant that the paternity proceedings had been discontinued due to the fact that B.F.'s new partner had recognised his paternity in respect of the child.
On 30 October 1997 the applicant complained to the Court of Appeal that the Gdańsk District Court failed to take steps in the interest of the child in order to have the applicant's paternity recognised. He submitted that he did not have access to the child, although he was his biological father. He argued that the parental skills of B.F. were inadequate as shown by the fact that her two other children K. and T. had been placed with a foster family; that in 1994 she had left the child with him and disappeared for over a month, and that the man who had recognised D. as his child was a habitual offender. He emphasised that the court relied only on the submissions of the mother, disregarding entirely his interests as a biological father of the child, and failed to take the child's best interests properly into consideration.
In a letter of 1 December 1997 of the President of the Gdańsk Court of Appeal, the applicant was informed that a copy of the decision of 15 November 1996 by which the District Court had dismissed the applicant's request to have a guardian for the child appointed for the institution of paternity proceedings, had been sent to a wrong address. Therefore, the decision should be served again on the applicant. The applicant was further informed that the Gdańsk District Court had, on 18 April 1997, restricted the parental rights of B.F. and J.M. in respect of D. in that a guardian had been appointed to supervise them in the exercise of their parental rights.
By letters of 22 December 1997 and 7 January 1998 the President of the Court of Appeal informed the applicant that his further complaints concerning the conduct of the District Court as regards D. were unfounded, and that it was J.M. who was the father of the child.
In a letter of 12 January 1998 the Gdańsk Regional Prosecutor recalled that the applicant's request to institute proceedings on his behalf in order to have him recognised as a biological father of D had been refused on 5 May 1995 as it was not in the child's best interest.
On 6 November 1998 the Ministry of Justice informed the applicant, in reply to his complaints, that the case-files concerning the child had been reviewed and the applicant's complaints about the failure to examine his position as a biological father of D. were unfounded.
The applicant does not have any access to the child.
B. Relevant domestic law
1. The provisions of the Constitution relating to right to respect for private and family life
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.”
Pursuant to Article 48, parents shall have the right to educate their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience. Limitation or deprivation of parental rights may be effected only in the instances specified by statute and only on the basis of a final judicial decision.
Article 72 of the Constitution provides that “the Republic of Poland shall ensure protection of the rights of children.”
2. Relevant provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy)
Article 72 of the Code reads:
“If there is no legal presumption in operation that the mother's husband is a 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.”
A declaration recognising paternity of a child can be made before a registrar of a local births, marriages and deaths register office.
Article 77 § 1 reads:
“The recognition of paternity in respect of a minor child should be subject to the approval of its mother. On the death of the mother, or if her parental rights have been withdrawn, or if a contact with her is impossible, a court appointed guardian shall give consent to the recognition of paternity.”
Pursuant to Articles 80 to 83, an action to have the recognition of a child declared null and void can be brought by the mother, by the child and by the man who recognised his paternity. Under Article 86 the prosecutor may also bring an action to have the recognition of a child declared null and void.
Under Articles 84 and 86 of the Code, an action to establish paternity may be brought by the mother or by the child, or by the prosecutor.
Article 99 of the Code provides that a guardian can be appointed by the family court to represent the child, if neither of the parents can represent it in judicial proceedings.
3. Provisions relating to the constitutional complaint
On 17 October 1997, the new Constitution entered into force in Poland. Article 79 § 1 of the Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
At the material time, the complaint had to be lodged within two months from the date on which the individual decision was served on the complainant (Article 46 § 1 of the Constitutional Court's Act). This time-limit was extended to 3 months with effect as of 8 October 2000. Article 190 of the Constitution, insofar as relevant, provides 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 legally effective judgment of a court, 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. Judgment of the Constitutional Court of 28 April 2003
In its judgment of 28 April 2003 the Court ruled on the Ombudsman's request to have Article 77 of the Family and Custody Code and Article 84 § 1 of that Code declared incompatible with the Constitution. The Ombudsman argued that the fact that a biological father did not have standing to lodge himself with a court an action to have his paternity recognised in respect of an out-of-wedlock child and that such action on behalf of a father could be only brought by the public prosecutor, breached the father's right to have access to a court, guaranteed by the Constitution. It was further argued that this restriction on access to a court was in violation of these provisions of the Constitution which guaranteed respect for private and family life.
The Court considered that the lack of standing before a court for a man claiming to be biological father of a child had to be assessed together with the fact that under Article 77 § 1 of the Custody and Family Code the recognition of paternity was subject to the mother's consent. This resulted in a situation in which, in the absence of such consent, a biological father would be deprived of any possibility of creating legal ties between himself and his child. A decision of the prosecuting authorities to institute proceedings with a view to creating such ties was left entirely to their discretion. All these factors taken together led the Court to the conclusion that the lack of standing before a court of the biological father in proceedings to determine his paternity were in breach of Article 72 § 1 of the Constitution, providing for protection of the 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, guaranteeing the right of access to a court.
The applicant, who claims that he is D.'s biological father, complains that Article 8 of the Convention has been violated. He maintains that he is denied any remedy under Polish law by which he could have his biological paternity acknowledged in law. This is so as in the absence of the mother's consent he cannot himself institute any proceedings in which to have his paternity confirmed, and the prosecutor refused to bring such action on his behalf.
The applicant complains that he cannot obtain what he considers to be his parental rights. He claims to be the biological father of D. He maintains that he is denied any remedy by which he could prove his parental rights. The Court has examined this complaint under Article 8 of the Convention which reads:
“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 Government argue that Article 8 of the Convention is not applicable to the present case. They further acknowledge that the domestic law as applicable at the relevant time did not provide for a putative biological father to bring directly a court action in order to have his paternity established. However, the law did provide for a number of legal avenues by which the applicant could have had his paternity confirmed, but he did not avail himself of them. They submit therefore that the applicant failed to exhaust domestic remedies available to him under Polish law.
Firstly, before the legal tie of paternity was established between D. and his mother's partner J.M., who recognised D. as his child on 17 July 1996, it was open to the applicant to request the court, under Article 99 of the Family and Custody Code, to appoint a guardian who could lodge on the child's behalf an action to have the applicant's paternity established. On 27 January 1995 the applicant indeed requested the Gdańsk District Court that such a guardian be appointed. However, at the hearing held on 10 November 1995 the applicant withdrew his application and the court subsequently discontinued these proceedings. The Government emphasise that the applicant did not persist in his efforts to have his paternity in respect of D. determined.
Secondly, even after J.M. had recognised D. as his son, the applicant could have had recourse to the legal avenue provided for by Article 86 of the Family and Custody Code. Under this provision, the recognition of a child can be challenged by the prosecuting authorities, which can bring an action for annulment before the family court. The applicant failed to request the prosecutor to bring such action.
Thirdly, the Government submit that the applicant failed to challenge the compatibility with the Constitution of those provisions of the Family and Custody Code which made it impossible for him to bring himself an action to have his paternity established by a court. If he believed that these provisions were incompatible with the Constitution insofar as it guarantees a right to respect for family life, and, consequently, also with Article 8 of the Convention, he could challenge before the Constitutional Court a final domestic decision, given in his case on the basis of such allegedly unconstitutional provisions. They draw the Court's attention to a judgment No. K 18/02 given by the Constitutional Court on 28 April 2003, by which that Court ruled that these provisions which made it impossible for a biological father to bring an action to have his paternity recognised and to establish a legal tie with a child, were in breach of the Constitution. They were exactly the same provisions which served as a legal basis for the decisions given in the applicant case, but the applicant failed to avail himself of this remedy. As a result, it is now possible for a putative father to lodge a paternity action directly with a court in order to have his paternity claim examined.
The applicant argues, in response to the first limb of the Government's argument, that, in the absence of the mother's consent, he could pursue two paths to have his paternity established. The first one was to have a paternity claim lodged on behalf of the child by a court appointed guardian. On 27 January 1995 the applicant requested the Gdańsk District Court that such guardian be appointed. The second one consisted in requesting the prosecutor to lodge a paternity action on the applicant's behalf. The applicant submitted such a request on 9 January 1995. However, on 9 May 1995 the prosecutor refused to bring the paternity action on the applicant's behalf on the grounds that his earlier request to appoint a guardian was pending at that time and that therefore it was not advisable for the prosecutor to consider his request. This shows, in the applicant's submission, that under domestic law these two paths were mutually exclusive, or at least were so considered by the prosecution in the present case. The unfettered discretion that the prosecutor enjoyed as regards institution of paternity proceedings on behalf of a putative father made it possible for the prosecution authorities to refuse to proceed to the examination of the applicant's request of 9 January 1995 in the light of the other set of proceedings pending at that time.
The applicant draws the Court's attention to the fact that, when withdrawing his request on 10 November 1995, he did not have professional legal advice. Moreover, on 8 August 1996 he renewed his request to have a guardian appointed, but to no avail, because by then J.M. had become D's. legal father, following his acknowledgment of paternity of 17 July 1996. Paternity action could not be instituted in respect of a child whose legal parentage had already been established.
At no time did the applicant have any intention of abandoning his efforts, as shown by numerous letters and complaints concerning his biological link with D., which he kept sending to various authorities.
As regards the Government's argument that the applicant failed to request the prosecutor to have the action for annulment of recognition of paternity by J.M. instituted, the applicant argues that this remedy is not available to him personally. The institution of such proceedings is dependent on the prosecutor's discretionary decision. Such request cannot, therefore, be regarded as effective remedy within the Convention meaning of the term. It is also argued that in the circumstances of the case, and in particular in the light of the note of the social assistance officer of 20 May 1994, challenging the applicant's parental skills, this is a remedy which does not offer reasonable prospects of success.
The applicant finally argues that the constitutional complaint to which he should have had recourse, according to the Government, is not a remedy which could have been tried in the circumstances of the present case. It is, firstly, a remedy of an extraordinary character. Its purpose is not to have an individual decision overturned, but rather to repeal legal provisions which are incompatible with the Constitution. Secondly, the effect of a successful constitutional complaint is, in best of cases, to have unconstitutional provisions rescinded. This cannot be held to affect directly the situation of the complainant, since the judgment of the Constitutional Court is not tantamount to quashing of an individual decision based on a provision which that Court declared unconstitutional.
Moreover, the applicant stresses that the individual constitutional complaint was introduced by the Constitution which entered into force on 17 October 1997. In the applicant's case he could institute proceedings to have his paternity acknowledged only until 17 July 1996, i.e. the day on which J.M. declared that he recognised D. as his child. Therefore the applicant could not possibly avail himself of this remedy, for purely temporal reasons. The applicant concludes that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.
The Court must first determine whether Article 8 of the Convention is applicable to the circumstances of the case.
The Court recalls that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage (see the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 17-18, § 44 and the Kroon and Others v. the Netherlands judgment of 20 September 1994, Series A no. 297-C, pp. 55-56, § 30).
A child born out of wedlock is ipso iure part of that “family” unit from the moment and by the very fact of its birth. Thus there exists between the child and the parents a relationship amounting to family life (see Keegan v. Ireland, loc. cit., § 44, Elsholz v. Germany [GC], no. 25735/94, ECHR 2000-VIII, § 43, and Yousef v. the Netherlands, no. 33711/96, § 51, ECHR 2002-VIII). Further, Article 8 cannot be interpreted as only protecting “family life” which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth (see no. 22920/93, dec. 6.4.1994, D.R.77-A, p. 115; Nylund v. Finland, no. 27110/95, dec. 29.6.1999).
The Court notes that in this respect that D. was born out of a genuine relationship between the applicant and Ms B. F. that lasted for about four years. This relationship ended in April 1994 when B.F. left the child with the applicant and disappeared for over a month. Subsequently, she reappeared on 21 May 1994 and took the boy when he was discharged from the hospital. The Court further observes that afterwards the applicant repeatedly took various steps in order to have his paternity recognised in law.
In these circumstances the Court concludes that the applicant's link with the child appears to have a sufficient basis in fact to bring the alleged relationship within the scope of family life within the meaning of Article 8 § 1 of the Convention.
As regards the Government's objection concerning the non-exhaustion of domestic remedies, the Court recalls that that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The respondent State must have a chance to put matters right through its own legal system before having to answer before an international body for its acts. In consequence, complaints intended to be brought subsequently before the Court in Strasbourg should first have been made – at least in substance – to the appropriate domestic body. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among many other examples, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII).
In this connection, the Court observes that under domestic law in force at the material time it was open to the applicant to lodge a motion to have a guardian appointed by the court in order to institute paternity proceedings on the child's behalf. The Court notes that the applicant submitted such a motion on 18 April 1994. The Court further observes that the applicant also attempted to set in motion another procedure in order to have his paternity recognised. On 9 January 1995 he requested the Gdańsk District Prosecutor to institute on his behalf the proceedings to have his paternity established. Lastly, the Court notes that Article 86 of the Family and Custody Code expressly provides that the prosecutor may also bring an action to have the recognition of a child declared null and void. The law does not provide for any time-limit for bringing such an action.
Hence, under domestic law as it stood at the material time there were procedures available in which the applicant's paternity in respect of a child born out of wedlock could be determined.
However, the Court observes that neither of these procedures were available to the applicant in that he could not launch them himself. Consequently, the Court is of the view that they can not be considered as remedies to be exhausted before bringing the case to the Court (see, among other authorities, Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII; §§ 31-32). Accordingly, the Government's objection as to non-exhaustion of domestic remedies must be dismissed.
The Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court by a majority
Declares the application admissible.
Santiago Quesada Christos Rozakis
Deputy Registrar President
RÓŻAŃSKI v. POLAND DECISION
RÓŻAŃSKI v. POLAND DECISION