FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67168/01 by Zoltán BATKA against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 30 September 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 26 May 2000,

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 applicant, Mr Zoltán Batka, is a Slovakian national, who was born in 1970 and lives in Veľké Kapušany. He was represented before the Court by Mr J. Malý, a lawyer practising in Bratislava. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function.

A. The circumstances of the case

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

1. The applicant’s attempts to have paternity proceedings instituted

In a judgment delivered on 30 May 1994 the Bratislava 2 District Court dissolved the marriage of the applicant and his wife. The court took note of the former spouses’ agreement under which their three children would be placed in the mother’s custody and that the applicant had undertaken to contribute to their maintenance.

On 20 November 1995 the applicant claimed before the Bratislava 5 District Court that he had not fathered two children to whom his former wife had given birth in December 1992 and in October 1993 respectively. He argued that he had neither lived with his former wife nor had he had sexual intercourse with her at the relevant time. He gave the particulars of a person with whom his former wife had lived since January 1992 and whom he considered to be the natural father of the children.

In her observations the applicant’s former wife proposed that the claim be dismissed. She admitted, however, that the applicant was not the natural father of one of the children.

The District Court dismissed the applicant’s claim on 22 November 1996. It found that the applicant had failed to submit it within six months after he had learned about the children’s birth as required by Section 57(1) of the Family Act. The judgment stated that the applicant could request the General Prosecutor to file an action with a view to having his paternity disproved pursuant to Section 62(1) of the Family Act.

The applicant filed such a request on 28 October 1998. He alleged that another person with whom his former wife had lived at the relevant time had admitted that he had fathered the two children. The applicant explained that he had failed to respect the time-limit laid down in Section 57(1) of the Family Act as, at the relevant time, he had not been informed about that provision and that he had been in a difficult material and psychological situation.

On 1 April 1999 the Bratislava Regional Prosecutor’s Office dismissed the applicant’s request. The letter stated that it had not been reliably shown that the applicant was not the natural father of the children. Such proof could only be obtained by a blood test. However, the applicant’s former wife was opposed to such a test, and public prosecutors had no power to order that she and the children should undergo it. The letter concluded that, in view of the above and given the lack of general interest in having the issue determined, there was no reason for proceeding pursuant to Section 62(1) of the Family Act.

On 22 April 1999 the applicant challenged the Regional Prosecutor’s conclusion before the General Prosecutor’s Office. He pointed out that his former wife had explicitly admitted that the applicant might not have fathered at least one of the children and argued that it was in the general interest to have the issue determined.

On 22 July 1999 a public prosecutor of the General Prosecutor’s Office informed the applicant that his former wife was still opposed to a blood test, and that it was therefore not possible to obtain reliable proof indicating that the applicant was not the natural father of the children. The public prosecutor concluded that no further action could be taken on the applicant’s request.

On 17 February 2000 the applicant asked the General Prosecutor’s Office to order an expert opinion in the context of which the hair and nails of the persons concerned should be analysed and their physiognomy compared.

On 9 March 2000 the General Prosecutor’s Office replied to the applicant that he was free to obtain such an expert opinion of his own initiative. The applicant was further informed that he could file a new request for proceedings to be brought pursuant to Section 62(1) of the Family Act in the event that he obtained reliable proof that he was not the natural father of the children.

2. The maintenance proceedings

On 21 December 1998 the applicant claimed that the maintenance which he had to pay in respect of the children born to his former wife be reduced.

On 6 July 1999 the Bratislava 2 District Court transferred the case to the Bratislava 5 District Court for reasons of jurisdiction.

On 15 November  the Bratislava 5 District Court heard the parties. On 31 January 2000 the case was adjourned. As the applicant’s former wife was detained on remand, the District Court again adjourned the case on 17 April 2000.

On 9 October 2000 the Bratislava 5 District Court dismissed the action.

On 11 December 2000 the applicant appealed. Subsequently the applicant’s former wife filed a counter-claim, on behalf of the children, with a view to having the maintenance payable by the applicant increased. The District Court submitted the claim to the applicant for comments, apparently in the context of the same proceedings.

On 21 May 2001 the Bratislava Regional Court upheld the District Court’s decision to dismiss the applicant’s claim.

A hearing concerning the applicant’s former wife’s claim for the maintenance to be increased was held before the Bratislava 5 District Court on 21 November 2001. The applicant informed the court that he could not appear for financial reasons. The Bratislava 5 District Court therefore asked the Michalovce District Court to hear the applicant. The latter court returned the file to the Bratislava District Court on 1 February 2002.

On 3 July 2002 the Bratislava 5 District Court increased the maintenance due by the applicant. The applicant appealed.

The Bratislava Regional Court dismissed the applicant’s appeal on 13 March 2003.

B. Relevant domestic law and practice

Pursuant to Section 51(1) of the Family Act, the husband of a woman who gives birth to a child during the marriage or not later than three hundred days after its dissolution shall be considered the child’s father.

Section 57(1) provides that a husband can deny paternity before a court within six months after learning that his wife gave birth to a child.

Under Section 62(1), when the time-limit for denying paternity has expired, the General Prosecutor may file an action to disprove paternity provided that the determination of the issue is justified by the interests of society.

According to the practice of the public prosecutors, an action under Section 62(1) of the Family Act can only be filed when reliable proofs exist that the mother’s husband did not father the child.

COMPLAINTS

1. The applicant complained that he had been prevented from having access to an independent and impartial tribunal with a view to having paternity determined in respect of the children born to his former wife. He also complained that the maintenance proceedings had lasted an unreasonably long time. The applicant alleged a violation of Article 6 § 1 of the Convention.

2. The applicant also complained under Article 8 of the Convention that the General Prosecutor’s Office had dismissed his requests for paternity proceedings to be brought pursuant to Section 62 (1) of the Family Act.

THE LAW

1. The applicant complained that his right of access to a court had been violated in that he had not been able to have paternity determined in respect of the children born to his former wife and that the maintenance proceedings had lasted an unreasonably long time. He relied on Article 6 of the Convention the relevant part of which provides:

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

a) The applicant complained that his right of access to a court had been violated.

The Government maintained , inter alia , that the limitation in time of filing a paternity action pursued the aim of legal certainty and was in the child’s interest. In the Government’s view such a limitation did not restrict the very essence of the applicant’s right of access to a court. In any event, the applicant had the possibility of denying paternity of the child within the time-limit laid down in Section 57(1) of the Family Act. As to the applicant’s requests addressed to public prosecutors, the Government maintained that they were not effective remedies which should be taken into consideration for the purposes of Article 35 § 1 of the Convention.

The applicant contended that his rights had been violated as he was not in a position to have the paternity of the child disproved before a tribunal as a result of the public prosecutors’ refusal to bring such proceedings.

The Court notes that Section 57(1) of the Family Act gave the applicant the possibility of denying paternity in respect of the children to whom his wife had given birth before a court within six months after he had learned about the children’s birth. The applicant did not, however, bring paternity proceedings within six months of his becoming aware of the children’s birth as laid down in Section 57(1) of the Family Act, even though the documents submitted show that within that period he was also aware of the facts indicating that he was not the father of the children.

In his application the applicant mainly complained that he was not able to bring proceedings relating to the paternity of the children after the expiry of the time-limit laid down in Section 57(1) of the Family Act.

Even assuming that, in view of the above, the applicant could claim to be a victim of a violation of his Convention rights in this respect and that a request to a public prosecutor for proceedings be brought with a view to having the paternity of the children disproved was a remedy which the applicant was required to try in the particular circumstances of the case, the Court notes that the General Prosecutor’s Office took its final standpoint on that request in the letter of 22 July 1999.

As the application was introduced on 26 May 2000, the applicant has not respected the six months’ time-limit laid down in Article 35 § 1 of the Convention. The fact that the applicant subsequently requested the General Prosecutor’s Office to order an expert opinion cannot affect the position as the public prosecutors had earlier expressly stated in their letters that they had no power to take such an action.

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) The applicant further complained that the length of the maintenance proceedings was excessive.

The Government maintained that the applicant had failed to exhaust domestic remedies as he had not filed a complaint with the Constitutional Court pursuant to Article 127 of the Constitution.

The applicant maintained that his right to a hearing within a reasonable time had been violated.

The Court notes that the proceedings complained of related to two claims filed by the applicant and his former wife respectively. Since these claims were examined by the courts separately, the Court will separately address the proceedings relating to each of these claims.

(i) The proceedings on the applicant’s claim of 21 December 1998 ended by the delivery of the Bratislava Regional Court’s decision of 21 May 2001. Thus the proceedings lasted two years and five months and during this period the claim was dealt with by courts at two levels of jurisdiction. In the Court’s view, the length of the proceedings was not contrary to the reasonable time requirement laid down in Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(ii) As regards the proceedings leading to the Bratislava Regional Court’s decision of 13 March 2003, the Court notes that the applicant failed to complain about their length to the Constitutional Court pursuant to Article 127 of the Constitution, as in force since 1 January 2002 (see Andr ášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).

It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complained that the General Prosecutor’s Office had dismissed his requests for paternity proceedings to be brought pursuant to Section 62(1) of the Family Act. He alleged a violation of Article 8 of the Convention which in its relevant part provides:

“1. Everyone has the right to respect for his private and family life, ...

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 Court has found above that the applicant introduced out of time his complaint under Article 6 § 1 of the Convention concerning the public prosecutors’ refusal to initiate paternity proceedings. It sees no reasons for reaching a different conclusion on the applicant’s complaint under Article 8 relating to the same issue.

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President