FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76472/01 by Michal DOVAL 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 12 September 2001,

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 Michal Doval, is a Slovakian national, who was born in 1927 and lives 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.

The applicant married on 18 December 1976. His wife gave birth to a boy on 9 June 1977. The child was considered as having been born out of the wedlock in accordance with the relevant law. On 23 September 1992 the marriage was dissolved by divorce.

The applicant discovered that a different man was the natural father of the child. The evidence obtained by him included, inter alia , a letter of 1981 in which the man in question had asked the applicant’s wife “... how is our son doing?”, and also witness statements.

The applicant repeatedly requested, with reference to the above information, that the General Prosecutor’s Office file an action aimed at disproving his paternity,  pursuant to Section 62 of the Family Act.

His requests were dismissed by the Bratislava Regional Prosecutor’s Office on 18 May 1993 and by the General Prosecutor’s Office on 13 February 1997. In particular, the Regional Prosecutor’s Office held that the statutory requirement pursuant to which it should be reliably shown that the husband was not the natural father of his wife’s child was not met in the applicant’s case. The letter of the General Prosecutor’s Office of 13 February 1997 stated that the only way of having the applicant’s allegations proved was a blood test. However, the applicant’s former wife and her son had refused to undergo such a test, and the public prosecutors lacked power to order the persons concerned to do so.

On 28 December 2000 the applicant again addressed himself to the General Prosecutor’s Office with a request for paternity proceedings to be initiated.

On 1 June 2001 the applicant was informed that the General Prosecutor’s Office maintained the position set out in the letter of 13 February 1997. The letter of 1 June 2001 stated that the applicant’s submissions contained no new information which would justify the bringing of proceedings as requested by the applicant. Finally, the letter indicated that any further submissions of the applicant in this matter would not be dealt with.

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 proof exists that the mother’s husband did not father the child.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that he could not have his paternity claim determined by a tribunal.

THE LAW

The applicant complained that his right of access to a court had been violated in that he could not have his paternity claim examined by a tribunal. 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 an independent and impartial ... tribunal...”

The Government maintained that the applicant had failed to submit the application within the six months’ time-limit laid down in Article 35 § 1 of the Convention. They contended that a petition to a public prosecutor for paternity proceedings to be brought was not an effective remedy within the meaning of the Court’s case-law as its use was within the discretionary power of the authority concerned. Accordingly, the applicant was not required to use such a remedy and the letter of the General Prosecutor’s Office of 1 June 2001 could not be considered as the final decision for the purpose of Article 35 § 1. The Government expressed the view that the six months’ period laid down in Article 35 § 1 started running in June 1992 when the applicant had learned that he had not fathered the child.

The applicant maintained that the only possibility of obtaining redress in the particular circumstances of the case had been a petition to a public prosecutor and that the final decision in this respect had been taken by the General Prosecutor’s Office on 1 June 2001.

Assuming that a request to a public prosecutor for proceedings to be brought with a view to having the paternity of the child 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 13 February 1997. As the application was introduced on 12 September 2001, the applicant failed to respect 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 review their conclusion cannot affect the position as the documents submitted do not show that the new request was based on relevant new information (see, a contrario , Balogh v. Hungary (dec.), no. 47940/99, 13 May 2003).

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