THIRD SECTION

DECISION

Application no . 27773/08 X and O thers against Latvia

The European Court of Human Rights ( Third Section), sitting on 29 September 2015 as a Chamber composed of:

Luis López Guerra , President, Kristina Pardalos , Johannes Silvis , Valeriu Griţco , Branko Lubarda , Carlo Ranzoni , Mārtiņš Mits , judges, and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 6 June 2008,

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

THE FACTS

1. The applicants are three Latvian nationals. They were repres ented before the Court by Ms A. Re ktiņa , a lawyer practising in Ri ga.

2. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce .

A. The circumstances of the case

1. Proceedings leading to the adoption of the contested domestic court ’ s order

3. The first applicant is the third applicant ’ s biological mother. The third applicant – a child – was born out of wedlock in January 2 004. Th e second applicant does not live with the child and his mother. According to the applicants, the child nevertheless recognises the second applicant as his father.

4. On 1 June 2006 S.G. lodged an action wit h the Ri ga City Vidzeme District Court seeking to establish his paternity of the third applicant, submitting that he was the biological father .

5. On the following day – 2 June 2006 – the second applicant officially acknowledged his paternity of the third a pplicant.

6. On 9 May 2007 the Riga City Vidzeme District Court adopted a judgment in which it dismissed S.G. ’ s claims in full. The first applicant was the respon dent and the second applicant was a third party in the civil proceedings . The court held the corresponding provision of the Civil Procedure Law did not give S.G. the standing to dispute in court a voluntary acknowledgement of paternity.

7 . S.G. appealed to the Riga Regional Court and later – on 10 October 2007 – requested the same court to order genetic (DNA) testing in order to establish whether the second applicant or S.G. was the biological father of the child.

8 . On the s ame day, 10 October 2007, the Ri ga Regional Court held a hearing and adopted a decision to order the genetic testing of S.G., the second applicant and the third applicant in order to verify the child ’ s biological descent. According to the court , it was necessary to order genetic testing because the second applicant had acknowledged paternity of the child only after S.G. had already lodged the action with the court. For that reason it was held that S.G. had standing to bring a claim to determine paternity. The decision to order genetic testing was not subject to appeal in accordance with the provision s of the Civil Procedure Law . On 22 October 2007 a copy of the record of the hearing was sent to the applicant ’ s representative.

2. Protest against the court ’ s order

9 . On 12 November 2007 the applicants, relying on sections 483 and 484 of the Civil Procedure Law, submitted a request to the President of the Civil Division of the Senate of the Supreme Court asking him to lodge a protest against the order of the Riga Regional Court. They claimed, inter alia , that in giving the order for genetic testing the Riga Regional Court had failed to take into consideration the interests of the child and the second applicant ’ s right to respect for his private and family life.

10 . On 20 December 2007 the President of the Civil Division of the Senate of the Supreme Court lodged a protest, citing several violations of procedural and substantive law , notably that: the contested order had been issued prior to the examination on the merits of the civil case; the decision had not been prepared in accordance with the procedure set out by the Civil Procedure Law; and the court had not examined whether the medical laboratory was authorised to carry out such tests . In particular , the wording of the protest noted that at the time of the examination of the case the child ’ s paternity had been voluntarily acknowledged, whereas the claimant – S.G. – had not challenged the paternity.

B. Relevant domestic law

The Civil Procedure Law

12 . Section 483 (as worded at the material time) provided that a protest against a court judgment and/or decision that had taken effect might be submitted to the Senate of the Supreme Court by the President of the Supreme Court, by the President of the Civil Division of the Senate of the Supreme Court or by the Prosecutor General, provided that no more than ten years had passed since the ruling took effect.

13 . Section 484 provides that admissible grounds for submitting a protest regarding a ruling (a judgment or decision) that has taken effect are: substantive breaches of material or procedural legal provisions in cases which have been adjudicated only by a first-instance court (provided that no appeal against the ruling has been lodged by the parties to the case in accordance with the law, for reasons beyond their control), or the rights of State or municipal institutions or persons who were not parties to the case have been affected by the ruling.

14 . Section 448 sets out the jurisdiction of the Senate when reviewing an ancillary complaint. It follows from the domestic courts ’ practice that the Senate has the same jurisdiction when reviewing a protest. In particular, the Senate may adopt the following decisions: 1) to uphold the lower court ’ s decision and dismiss the appeal or protest; 2) to quash the decision, in whole or in part, and remit it to the lower court for fresh examination; 3) to quash the decision, in whole or in part, and decide the question on the merits; 4) to amend the decision.

COMPLAINTS

15. The applicants complained under Article 8 of the Convention about the domestic court ’ s order for all the applicants in the paternity proceedings to undergo the genetic (DNA) testing requested by the third applicant ’ s putative biological father . According to the applicants the domestic court had had no reason to order the genetic testing. If S.G. were to have a right to request genetic testing in order to obtain verification of a biological fact about the paternity of the third applicant, it would lead to the absurd situation that any person could request DNA testing of any child living in another family.

16. The applicant s also complained , under Article 6 of the Convention, about several aspects of alleged procedural violations committed during the paternity proceedings.

THE LAW

A. Complaints under Article 8 of the Convention

17 . The applicants – a mother, a legal father and their child – complained that the domestic court ’ s decision to order them to take a DNA test in the paternity proceedings brought by the third applicant ’ s putative biological father had been contrary to the rights guaranteed under Article 8 of the Convention, which reads 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.”

18 . The Government invoked several inadmissibility grounds, notably that the complaint was incompatible ratione materiae with the provisions of the Convention and that the first and the third applicants could not claim to be victims within the meaning of Article 34 of the Convention. They also argued that the applicants had lodged their application out of time. As regards the six-month rule, the Government submitted that recourse under sections 483 and 484 of the Civil Procedure Law could not constitute an effective remedy because of its limited scope and owing to the fact that such remedy was not directly accessible to the applicants.

19. The applicants contested the Government ’ s argument. They stressed that upon their request the President of the Civil Division had submitted a protest against the contested decision of the Riga Regional Court. Given that that protest had been examined at the hearing of the Senate of the Supreme Court – to which the first and the second applicant had been summoned – the applicants submitted that the main issue of the case had been finally decided on 5 March 2008, when the Senate had dismissed the protest.

20. The C ourt reiterates that according to its case-law, the requirements contained in Article 35 § 1 of the Convention concerning the exhaustion of domestic remedies and the six-month rule are closely interrelated ( see Hatjianastasiou v. Greece ( dec. ), no . 12945/87 , 4 April 1990 ) . Applicants are only obliged to use an effective remedy that is actually available in theory and in practice at the relevant time (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II ). It follows that Article 35 § 1 of the Convention does not require that discretionary or extraordinary remedies be exhausted (see, among other authorities, Babayev v. Azerbaijan ( dec. ), no. 36454/03 , 27 May 2004 ). As t he Court has already stated , one consequence of the above rule is that the time taken to exhaust extraordinary remedies does not i nterrupt the running of the six ‑ month time-limit (see, among other authorities, Tucka v. the United Kingdom (No.1) ( dec. ), no . 34586/10 , 18 January 2011 , § 15 ).

21 . The decision ordering the genetic testing in the present case was final (see paragraph 8 above) and the Court has to assess, in the light of the case-law cited above, whether the request lodged with the President of the Civil Division of the Senate of the Supreme Court should be considered a “remedy” within the meaning of Article 35 § 1 of the Convention.

22. The applicants, in their request to the President of the Civil Division of the Senate of the Supreme Court , relied on sections 483 and 484 of the Civil Procedure law (see paragraphs 12 - 13 above). The wording of the above provisions shows th at at the material time a protest against a final court decision could be lodged by the President of the Civil Division either of his own motion or on the basis of information received from one of the parties concerned ( for more detailed information on the protest procedure and the reasoning based on which the Constitutional Court on 14 May 2013 in case no. 2012-13-01 found section 483 of the Civil Procedure Law – in so far as it established the right of the President of the Civil Division to submit a protest – incompatible with Article 6 of the Convention and Article 92 of the Constitution see Yelverton Investments B.V. and others v. Latvia ( dec. ), no. 57566/12 , 18 November 2014 , § 24 ) . Without speculating on whether the Senate could have addressed the Article 8 complaints if they had been brought to its attention (see paragraph 14 in relation to the powers of the Senate), it is nevertheless evident that the fact that the applicants themselves had recourse to the review mechanism enshrined in sections 483 and 484 of the Civil Procedure Law did not mean that they had direct access to that remedy. It was up to the President of the Civil Division to decide on which grounds the protest should be based. It follows that the discretionary nature of the remedy used by the applicants did not grant them a right to an individual appeal .

23. In the light of the above, the Court finds that the request lodged with the President of the Civil Division of the Senate of the Supreme Court asking him to submit a protest to the Senate of the Supreme Court constituted an extraordinary remedy falli ng outside the scope of Article 35 § 1 of the Convention , and that the decision of 5 March 2008 did not resta rt the running of the six-month period which had expired on 22 April 2008, at the latest (see also Berdzenishvili v. Russia ( dec. ), no. 31697/03 , 29 January 2004) . Given that the applicants introduced their application with the Court on 6 June 2008, they have not complied wit h the six-month rule.

24 . Having regard to its findings above, the Court considers that it is not necessary to examine the other arguments of the Government as to the inadmissibility of the application.

B. Other complaints

25 . The applicants also alleged other violations of Article 6 § 1 of the Convention.

26 . In the light of the Court ’ s findings under Article 8 of the Convention , it considers that the remainder of the application has also been submitted out of time and therefore it must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 October 2015 .

Stephen Phillips Luis López Guerra Registrar President