FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7802/05 by Marian DARMOŃ against Poland

The European Court of Human Rights ( Fourth Section), sitting on 17 November 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 24 January 2005,

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 FACTS

The app licant, Mr Marian Darmoń, is a Polish national who was born in 1947 and lives in Cracow . He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow . 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.

In December 1972 the applicant got married and on 18 May 1973 the applicant ’ s wife gave birth to a girl, J.

The applicant did not try to rebut the legal presumption that he was J ’ s father. Subsequently, a second daughter was born of the applicant ’ s marriage.

In 1984 the applicant divorced from his wife. The court awarded custody of the children to the applicant ’ s former wife and ordered the applicant to pay child maintenance for them. No doubts as to the applicant ’ s paternity were raised in the divorce proceedings.

The applicant submitted that he had had doubts as to his paternity of his older daughter since the beginning of his marriage which had been reinforced during the divorce proceedings when his wife had admitted to infidelity. However, the applicant had neither brought an action denying paternity after the birth of J nor raised doubts as to his paternity in the divorce proceedings, considering that at the material time there had been no reliable scientific method of ascertaining that he was not the biological father of J. When DNA evidence had become possible in Poland and the applicant had decided to bring an action denying paternity, J had refused to undergo the test.

On 24 November 2003 the applicant requested the Cracow District Prosecutor ( P ro k urator Rejonowy ) to initiate civil proceedings by which he could deny his paternity of J. The applicant based his application on his personal conviction that J was not his daughter and on his suspicion that a certain Z.M. could be her biological father.

On 5 April 2004 the applicant supplemented his application by submitting documents that had been requested by the prosecutor.

Subsequently, the prosecutor obtained the case file of the applicant ’ s divorce proceedings from 1984 and heard testimonies from the applicant ’ s former wife. She denied having had an affair with Z.M., who had been her employer at the material time, and confirmed that the applicant was the father of her children. She also refused to submit to DNA testing.

On three occasions in May and June 2004 the prosecutor attempted to hear evidence from the applicant, but he failed to reply to the summons.

On 30 June 2004 the prosecutor sent him a letter refusing to initiate such proceedings. The prosecutor based that decision on the statements by the applicant ’ s former wife that the applicant was the biological father of J. As the applicant himself had failed to appear for interview with the prosecutor and his former wife had refused to undergo a DNA test, the prosecutor concluded that there was no evidence supporting the applicant ’ s request.

The applicant contested this decision. On 27 July 2004 the Cracow Regional Prosecutor ( Prokurator Okręgowy ) informed him that he fully agreed with the findings of the District Prosecutor. On the same day the applicant appeared before the prosecutor without being summoned.

On 16 November 2004 the Regional Prosecutor questioned the applicant and again dismissed his request to bring civil proceedings denying his paternity. The prosecutor considered that it was not possible to grant the applicant ’ s request solely on the basis of his statement. The prosecutor pointed to the fact that the applicant had not denied his paternity in the divorce proceedings twenty years ago and that his former wife had confirmed that he was the biological father of J. In those circumstances only genetic evidence could cast doubt on the presumption that the applicant was the father of J. Such a medical test could be ordered by the prosecutor; however, in the instant case it had not been possible given the lack of consent of all the parties involved, including his former wife.

The applicant again contested the above decision.

On 8 December 2004 the Cracow Appeals Prosecutor dismissed his complaint as groundless.

B. Rele vant domestic law

Under Article 62 of the 1964 Family and Custody Code ( Kodeks Rodzinny i Opiekunczy – “the Code”), if a child was born in wedlock there is a legal presumption that the mother ’ s husband is the father of her child. That presumption can be rebutted by bringing a civil action denying paternity ( zaprzeczenie ojcostwa ) (Article 62 § 3 of the Code).

Under Article 63, an action denying paternity can be brought by the husband of the mother within six months of learning that his wife has given birth to a child.

Finally, Article 86 of the Code provides that paternity may at any time be challenged by a prosecutor.

COMPLAINT

The applicant complained under Article 6 of the Convention that he had no legal avenue open to him to contest paternity. That constituted a violation of his right of access to a court. Moreover, he submitted that the facts of the case disclosed a breach of Article 8 of the Convention.

THE LAW

The applicant complained under Articles 6 § 1 and 8 of the Convention that he could not effectively contest his paternity, which constituted a violation of his right of access to a court and of the right to respect for his private and family life.

The relevant Articles of the Convention read as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 8

“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 submitted that the applicant should have brought an action denying paternity in spite of the expiry of the time-limit or applied to the Ombudsman to bring such an action on his behalf. Moreover, they submitted that the applicant had failed to submit to the prosecutor any evidence that would justify bringing such an action. They pointed out that the applicant had allegedly always had doubts as to his paternity, but, for reasons that were unclear, had not raised them officially until 2003. The prosecutor had therefore been justified in giving more weight to the principle of legal certainly and stability of family relations, and to granting protection to J ’ s private and family life. The Government further considered that the domestic law provided a sufficient guarantee in well-founded cases in which important facts were discovered late by providing that a civil action could be brought by the prosecutor without any time-limit. The Government submitted that the prosecutors dealing with the applicant ’ s request had displayed due diligence and carefully examined it with no appearance of arbitrariness. The applicant, on the other hand, had failed to display due diligence in pursuing his own application, in particular by failing to appear before the prosecutor. Nor had he requested the prosecutor to supplement the proceedings by adducing additional evidence or producing any evidence proving that his paternity was at least doubtful.

The Government also submitted that there was no civil procedure available to the applicant under Polish law by which he could effectively request the prosecutor to institute civil proceedings on his behalf ( Nylund , ((dec.), no. 27110/95, ECHR 1999-VI). In sum, the Government submitted that the case had not disclosed a breach of either Article 6 or Article 8 of the Convention.

The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, c onstitutes one aspect only (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy (no. 1) , no. 40877/98, § 48, ECHR 2003-I ). This right extends only to disputes (“ contestations ”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, p. 16, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria , judgment of 24 November 1997, Reports 1997 ‑ VII, p. 2507, § 34).

The Court has also examined cases in which a husband wished to institute proceedings contesting the paternity of a child born in wedlock under Article 8 of the Convention. In those cases the question was left open whether paternity proceedings aimed at the dissolution in law of existing family ties concerned the applicant ’ s “family life” because of the finding that, in any event, the determination of the father ’ s legal relations with his putative child concerned his “private life” (see Yıldırım v. Austria (dec.), no. 34308/96, 19 October 1999, and Rasmussen v. Denmark , judgment of 28 November 1984, Series A no. 87, p. 13, § 33 and Shofman v. Russia , no. 74826/01, § 30 , 24 November 2005 ). The Court has found that the fact that an applicant was prevented from disclaiming paternity – because he had not discovered that he might not be the father until more than a year after he had learnt of the registration of the birth – was not proportionate to the legitimate aims pursued, in breach of Article 8 of the Convention ( see Shofman , cited above, § 45). A similar finding was reached by the Court in the Mizzi v. Malta judgment as the applicant was never allowed to contest his paternity, in breach of Articles 6 and 8 (no. 26111/02, § 114, ECHR 2006-... ). In the Tavli case the applicant was prevented from disclaiming paternity, in breach of Article 8 of the Convention, because scientific progress was not considered to be a condition for retrial (see Tavlı v. Turkey , no. 11449/02, § 36 , 9 November 2006 ).

In the present case the applicant wished to bring an action denying paternity of J, born in 1973 of the applicant ’ s marriage. Under the relevant domestic provisions, a husband c ould repudiate a child c onceived in wedlock by bringing relevant civil proceedings within six months of learning of the birth of the child. The birth of the child was not concealed from the applicant, so the time-limit expired in 1973. It is not clear when the applicant became doubtful as to his paternity; however, he failed to raise it after the birth of J allegedly because he had been convinced there was no reliable scientific method of denying paternity. Only in 2003 had he decided to repudiate J, but since the six-month time-limit had expired the applicant did not have the possibility, with reasonable prospects of success, of bringing himself an action denying paternity. However, the time-limit did not apply to a public prosecutor. Accordingly, the applicant requested the district prosecutor to bring an action on his behalf. On 8 December 2004 the Cracow Appeals Prosecutor finally dismissed his request.

As regards the matter of applicability of Article 6 of the Convention to the instant case, the Court has already held that the fact that an identical time-limit precluded an applicant from effectively bringing an action denying paternity did not impair the actual existence of the right in the domestic legal system (see Mizzi , cited above, § 76). Such a time-limit was considered as only a procedural precondition for having access to the domestic courts. Moreover, the Court found that the right claimed by the applicant to deny paternity was at least arguable and the dispute that he wished to bring before the domestic courts, which was directly decisive for this right, was genuine and serious. Finally, the Court reiterated that an action contesting paternity is a matter of family law; on that account alone, it is “civil” in character (ibid, and Rasmussen , cited above, § 32). In the light of the above-mentioned findings in Mizzi , the Court will proceed on the assumption that Article 6 of the Convention is applicable to the facts of the instant case.

In Shofman (cited above, § 42) the Court examined the legal systems of the Contracting States and noted that they have produced different solutions to the problem which arises when the relevant circumstances only become known after the expiry of the time-limit. In some States, in certain exceptional cases a court may grant leave to institute proceedings out of time (see Rasmussen , cited above, § 24). In others the authority to do so is vested in the public prosecutor (see Yildirim , cited above).

The Court has also accepted that, under certain circumstances, the institution of time-limits for paternity proceedings may serve the interests of legal certainty and the interests of the children (see Rasmussen , cited above, p. 15, § 41). Therefore, the consequent limitations on the presumed father ’ s right of access to a court are not, as such, incompatible with the Convention.

In the instant case, although the applicant was prevented from bringing an action denying paternity himself, because of the expiry of the time-limit, it was nevertheless open to him to apply to the public prosecutor to bring such an action on his behalf even after expiry of that period.

The applicant ’ s request to the prosecutor was not successful. However, the Court considers that the applicant ’ s request to bring such an action on his behalf was unsubstantiated. The applicant failed to provide any evidence substantiating his doubts as to his paternity, apart from rumours. He was unable to convincingly explain his delay of over thirty years in making his allegation that he was not the father of J, although he had allegedly been convinced of it since the birth of the child. Most importantly, the applicant did not submit to the prosecutor any biological evidence, in particular the results of a DNA test, which would prove his allegations (compare and contrast Mizzi , cited above, § 76). The prosecutor could not order such a test without the consent of all parties.

Finally, the Court notes that the applicant did not display diligence in the proceedings as on several occasions he failed to appear before the prosecutor. The prosecutor heard the applicant ’ s former wife, who confirmed the applicant ’ s paternity and refused to undergo a DNA test. According to the applicant, his putative daughter, who was thirty years old at that time, also refused to undergo genetic examination. The prosecutor took steps to establish the actual circumstances of the case and to ensure that the rights and interests of the parties had been given due consideration. There is no evidence that the applicant requested the prosecutor to adduce further evidence or contested the manner in which the prosecutor had conducted the proceedings. There is therefore no indication that the manner in which the authorities exercised their powers was arbitrary or perfunctory (compare and contrast Różański v. Poland , no. 55339/00, § § 77-79 , 18 May 2006 ).

In the light of the above the Court considers that since the applicant ’ s action denying paternity was without substance , the public prosecutor ’ s failure to bring such an action on his behalf cannot be considered to amount to an interference with his right of access to a court.

Turning to the question whether the facts of the case disclosed a breach of Article 8 of the Convention, the Court notes that, according to its case-law, a situation in which a legal presumption is allowed to prevail over biological and social reality, without regard to both established facts and the wishes of those concerned and without actually benefiting anyone, is not compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life (see Kroon , cited above, § 40, and Shofman , cited above, § 44).

However, in the above-mentioned cases in which the Court found a breach of Article 8 the applicants had relied on objective scientific evidence which excluded their paternity (see Shofman , cited above, § 41; Paulík v. Slovakia , no. 10699/05, § 57 , ECHR 2006 ‑ ... (extracts ) and Mizzi , cited above, § 112). Contrary to the above-mentioned cases, the applicant in the case under consideration could not substantiate by genetic evidence his allegations that he was not the father of J and it was the absence of an established biological fact that caused his claim to fail (see Nylund , cited above).

Moreover, the above findings that the applicant ’ s action denying paternity submitted to the prosecutor was unsupported by any evidence and that the prosecutor had displayed due diligence in examining the applicant ’ s request remain relevant in the examination of the case under Article 8 of the Convention.

Finally, the Court notes that although the applicant daughter is over thirty years old, she apparently considers the applicant as her father and refuses to undergo genetic tests. It is her, and her mother ’ s, position that prevent the applicant from obtaining biological evidence and not the lack of a procedure for bringing the legal position into line with the biological reality (compare and contrast Paulík , cited above, § 46 ).

Given the lack of biological evidence, it cannot therefore be said that “a legal presumption is allowed to prevail over biological and social reality, without regard to both established facts and the wishes of those concerned” (see Shofman , cited above, § 44). In consequence, the Court does not find it established that the authorities failed to strike a fair balance between the general interests of the protection of legal certainty of family relationships and the applicant ’ s right to have the legal presumption of his paternity reviewed (compare and contrast Mizzi , cited above, § 114, and Shofman , cited above, § 45).

The Court ’ s conclusion

In the light of all the material in its possession, in so far as the matters complained of are within its competence, and regardless of other possible grounds of inadmissibility, the Court finds that the application does not disclose any appearance of a violation of Articles 6 or 8 of the Convention.

It follows 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 by a majority

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President