FOURTH SECTION

DECISION

Application no . 15005/11 Marian KOCH against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Chamber composed of:

András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris, Gabriele Kucsko-Stadlmayer, judges, and Andrea Tamietti , Deputy Section Registrar ,

Having regard to the above application lodged on 1 March 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the Ordo Iuris Institute for Legal Culture in Warsaw, which was granted leave to intervene as a third party ( Article 36 § 2 of the Convention and Rule 44 § 2) ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Marian Koch, is a Polish national, who was born in 1961 and lives in Tuchola. He was represented before the Court by Mr M. Bukowiński, a lawyer practising in Bydgoszcz.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 27 August 1983 the applicant married B. They had three children: a daughter J. born in 1984, a son T. born in 1986 and another girl K. born on 12 August 1992.

5. In 2004 the applicant began having doubts about whether he was the biological father of K. and requested that the Tuchola District Prosecutor ( Prokurator Rejonowy ) institute civil proceedings by which he could deny paternity.

6. On 25 August 2004 the prosecutor replied, stating briefly that she had not found any grounds to bring proceedings to deny the applicant ’ s paternity. In particular, the mother had refused to consent to K. having a blood test.

7. On 8 November 2004 the Bydgoszcz Regional Prosecutor ( prokurator okr ę gowy ) confirmed that there had been not enough grounds to bring a claim for denial of paternity on the applicant ’ s behalf.

8. Meanwhile, on 20 April 2004 the applicant ’ s wife filed a petition for divorce.

9. On 7 January 2005 the Bydgoszcz Regional Court ( S Ä… d Okr Ä™ gowy ) pronounced a no ‑ fault divorce between the applicant and B., established K. ’ s place of residence to be with the applicant, granted parental authority over K. to the applicant and limited B. ’ s authority.

10. In August 2009 the applicant obtained hair samples from B. and K. without their consent. According to the applicant, he delivered these samples to a private laboratory. The DNA test results confirmed that the applicant was not K. ’ s father.

11. On 16 October 2009 the applicant again requested that the Olsztyn District Prosecutor institute civil proceedings by which he could deny his paternity of K. He attached the results of the DNA test.

12. On 18 December 2009, the applicant ’ s former wife was questioned by the prosecutor and expressed her surprise that the applicant wished to deny his paternity of K. In particular, she noted that in the divorce proceedings the applicant had wished to establish K. ’ s place of residence at his home. She also stressed that because of the applicant ’ s actions K. was having therapy with a psychologist.

13. Subsequently, on 29 January 2010 K. (nearly 18 years old at the time) was questioned by the prosecutor. She stated that the applicant had obtained the hair samples by force. She further questioned the results of the DNA test as in her opinion it had not been clear whose samples had been used. She submitted that she had lived with the applicant until 2006. The prosecutor informed her that on reaching the age of majority she would be able to institute proceedings herself to contest the applicant ’ s paternity.

14. On 12 February 2010 the applicant admitted that he had obtained the hair samples without the consent of K. or her mother.

15. On 3 March 2010 the Olsztyn District Prosecutor informed the applicant that she had not found any grounds to bring proceedings to deny his paternity. The prosecutor referred to the fact that the applicant had obtained the hair samples from B. and K. without their consent. She also noted that the DNA test was not reliable as the origin of the samples that had been analysed had not been properly identified. In addition, K. had testified that she had been raised by the applicant, had always treated him as her father and had not agreed to any paternity tests. Consequently, the prosecutor considered that bringing a claim for denial of paternity was not in K. ’ s best interests. Lastly, the prosecutor stressed that K. could herself bring proceedings for denial of the applicant ’ s paternity within three years of reaching the age of majority (12 August 2010).

16. On an unknown date the applicant again asked the prosecutor to institute civil proceedings by which he could deny his paternity of K.

17. On 29 November 2010 the Olsztyn District Prosecutor informed the applicant that he had failed to point to any new circumstances to justify the institution of civil proceedings for disavowal of paternity. In particular, the results of the DNA test were not reliable for the reasons already explained in the decision of 3 March 2010. The prosecutor further observed that K. had reached the age of majority and could bring such proceedings herself. The fact that she had so far failed to do so indicated that she still considered the applicant as her father. In those circumstances, in view of her best interest, the applicant ’ s request could not be granted.

18. Meanwhile, on 8 March 2010 the Olsztyn District Court found that the applicant had used force to pull out B. ’ s hair and convicted him in criminal proceedings of an attack on B. ’ s physical integrity (under Article 217 of the Criminal Code). The court sentenced him to a restriction of his liberty.

B. Relevant domestic law and practice

19. Article 62 of the 1964 Family and Custody Code ( Kodeks Rodzinny i Opieku ń czy – “the Family Code”), provides, in so far as relevant:

“§ 1. If a child was born during a marriage, or within three hundred days of its termination or annulment, it will be presumed that he/she is the child of the mother ’ s husband. This presumption will not apply if the child was born more than three hundred days after a judicial separation.

§ 3. This presumption may only be rebutted as the result of an action for the denial of paternity.”

20. In accordance with Article 63 it is possible to bring an action denying paternity:

“The mother ’ s husband may bring a legal action for denial of paternity within six months of learning of his wife giving birth to the child, but no later than when the child reaches the age of majority . ”

21. According to Article 70 § 1 of the Family Code an offspring may deny the paternity of a husband of his or her mother within three years of reaching the age of majority.

22. Lastly, under Article 86 of the Family Code, as amended with effect from 13 June 2009, a prosecutor may challenge paternity at any time, as long as the child is alive, if it is in the child ’ s best interests or for the protection of the interests of the public.

COMPLAINTS

23. The applicant complained under Articles 6 and 8 of the Convention that he could not bring proceedings for the disavowal of his paternity of K.

THE LAW

24. The applicant complained that he had not had the possibility to bring proceedings for the disavowal of his patern ity of K. He relied on Articles 6 and 8 of the Convention.

25. 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. In the Government ’ s opinion, the prosecutor ’ s refusal of 8 November 2004 was determinative for the calculation of the six-month time-limit.

26. The applicant did not comment on the Government ’ s objection.

27. The Court does not find it necessary to decide on the Government ’ s objection because the application is in any event inadmissible for the following reasons.

28. The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 (a) of the Convention, which provides, as far as relevant:

“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers ... an abuse of the right of application.”

29. The Court further reiterates that it has applied that provision, in particular, in the following types of situations. Firstly, an application may be rejected it if was knowingly based on untrue facts (see Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000-X; Gross v. Switzerland [GC] , no. 67810/10, § 28, ECHR 2014 ). Secondly, it may also be rejected in cases where an applicant had used particularly vexatious, contemptuous, threatening or provocative expressions in his communication with the Court (see, for example, Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004).

30. However, the notion of abuse of the rig ht of application under Article 35 § 3 (a) of the Convention is not limited to those two instances and other situations could also be considered as an abuse of that right. In principle any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it can be considered as an abuse of the right of application (see Miroļubovs and Others v. Latvia , no. 798/05, § 65, 15 September 2009).

31. In the present case, the Court observes that it was established in the criminal proceedings against the applicant and by his daughter ’ s unrebutted testimony that the applicant obtained the DNA samples by force, without the parties ’ consent (see paragraphs 13 and 18 above). He further based his application to the prosecutor on such evidence (see paragraph 11 above). His application to the Court is also based on the same evidence.

32. The Court takes note of the fact that the domestic courts found that the attack on the applicant ’ s former wife ’ s physical integrity constituted a criminal offence and convicted him of this act (see paragraph 18 ab ove). It further considers that the way in which the applicant has attempted to vindicate his Article 8 of the Conventi on rights at the domestic level blatantly violated the rights and the values protected by the Convention. Consequently, in the exceptional circumstances of the present case, and having regard to Article 17 of the Convention, the Court is of the opinion that, by invoking Article 8 before it on the basis of evidence obtained in violation of other people ’ s Convention rights, the applicant has abused his right of individual petition.

33. Consequently, the Court finds that the applicant ’ s conduct in the present case was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.

34. It is therefore appropriate to reject the application as a whole as an abuse of the right of application, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 30 March 2017 .

Andrea T amietti András Sajó Deputy Registrar President