FIRST SECTION

DECISION

Application no. 22963/16 Jaros ł aw Feliks SŁOŃ against Poland

The European Court of Human Rights (First Section), sitting on 1 5 September 2020 as a Committee composed of:

Linos -Alexandre Sicilianos , President, Krzysztof Wojtyczek, Armen Harutyunyan , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 21 April 2016,

Having regard to the observations submitted by the Polish Government (“the Government”) and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Jaroslaw Feliks Słoń , is a Polish national who was born in 1964 and lives in Warsaw. He was represented before the Court by Ms B. Namysłowska-Gabrysiak , a lawyer practising in Warsaw.

2 . The Government were represented by their Agent, Mrs J. Chrzanowska , and subsequently by Mr J. Sobczak , of the Ministry of Foreign Affairs.

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

4 . Between January and June 2009, the applicant, who was married at that time, was in an informal relationship with L.Z. They did not live together.

5 . On 19 June 2009, while L.Z. was pregnant, her previous partner, M.Å»., acknowledged paternity of the baby (I.) at the local registry office ( UrzÄ…d Stanu Cywilnego ). In accordance with Article 77 § 1 of the Family and Custody Code ( Kodeks Rodzinny i OpiekuÅ„czy ) (see paragraphs 22 ‑ 24 below), L.Z. gave her consent to M.Å». ’ s acknowledgment of paternity. The applicant was informed of this only after M.Å». had recognised his paternity of I.

6 . On 10 October 2009 L.Z. gave birth to a son, I.

7 . The applicant took care of I. from his birth as his mother was not able to look after him because of her health problems. The boy lived partly with L.Z. and partly with the applicant and called the applicant “Dad”. In May 2012 the applicant decided to undergo a private DNA test, which confirmed that he was the father of I. The test was conducted on material collected and delivered to the laboratory by the applicant.

8 . In August 2012 L.Z. took I. from the applicant for a weekend but she did not return him and she stopped all contact with the applicant. Since then the applicant has had no contact with the child. On 1 December 2012 L.Z. married M.Å». and they began living together.

9 . On 1 October 2012 the applicant requested the Warsaw- Praga Północ District Prosecutor to initiate proceedings to have M. Ż . ’ s recognition of paternity of I. declared null and void ( powództwo o ustalenie bezskuteczności uznania ojcostwa ). By a letter of 5 November 2012, the prosecution services informed the applicant that there were no grounds for initiating the requested proceedings. Reference was made to L.Z. ’ s statements that M. Ż . was the biological father of the child, and to the fact that M. Ż . had formally recognised his paternity. It was further noted that the boy lived with L.Z. and M. Ż ., whom he treated as his mother and father respectively and with whom he had emotional ties.

10 . The applicant lodged a complaint with the Warsaw- Praga Regional Prosecutor. On 31 December 2012, the case was remitted to the Warsaw ‑ Praga Północ District Prosecutor so that the latter could complete the proceedings (in particular, hearing all the witnesses requested by the applicant and establishing all the circumstances of the case).

11 . On 25 February 2013 the Warsaw- Praga Północ District Prosecutor again informed the applicant that there were no grounds to institute proceedings to have the recognition of I. by M.Ż. declared null and void. The prosecutor stated that the results of the private DNA test submitted by the applicant (which indicated his paternity of I.) had not been reliable and that the witnesses ’ testimony had only confirmed his close contact with the child but could not be considered relevant for any conclusions as to the applicant ’ s paternity. The prosecutor also noted that I. was being brought up in the family of L.Z. and M.Ż. – whom he considered to be his father – and that therefore the action would be against the child ’ s best interests. However, at the end of the submission it was indicated that the prosecutor ’ s position might change in the event that the applicant were to submit the results of a DNA test that could be accepted as evidence in court.

12 . The applicant lodged an appeal, which on 20 March 2013 the Warsaw ‑ Praga Regional Prosecutor found to be unsubstantiated.

13 . On 9 April 2013 the applicant lodged an application with the Warsaw Praga-Północ District Court for contact with I. On 7 April 2014 an expert opinion was prepared by experts in psychology from the local family consultation centre ( Rodzinny Ośrodek Diagnostyczno Konsultacyjny – “the RODK”). The experts stated that I. had strong emotional ties with L.Z. and M. Ż . He had good relations with the applicant; however, these were not parental ties. It was noted that, at the beginning of the meeting, I. had asked what the applicant was called. Subsequently, when the applicant referred to himself as I. ’ s father, the child became confused. The experts concluded that the applicant having contact with I. could have a destabilising effect on I. ’ s family situation and distort his sense of stability and security. This, in turn, could have a negative effect on his further emotional and social development.

14 . The application was dismissed by the Warsaw Praga-Północ District Court on 14 November 2014. The court relied on the RODK opinion and held that establishment of contact between the applicant and I. would not have been in the child ’ s best interests.

15 . On 22 April 2015 the Warsaw- Praga Regional Court ( Sąd Okręgowy ) dismissed an appeal lodged by the applicant.

16 . On 20 March 2014 the applicant again asked the Warsaw Praga ‑ Północ District Prosecutor to institute proceedings in order to have M.Å». ’ s recognition of I. declared null and void.

17 . On 18 September 2014 the prosecutor refused to initiate proceedings. The prosecutor obtained statements from the applicant, and from L.Z. and M.Ż. In addition, the private DNA test results submitted by the applicant were examined, as were opinions by a psychologist and the RODK. Moreover, the prosecutor analysed the case files from various proceedings involving the applicant and the child ’ s parents (including proceedings relating to criminal complaints lodged by L.Z. against the applicant).

18 . The applicant appealed against that decision, relying on the fact that the prosecutor had not analysed the respective blood types of the child, or of the mother, M.Å» or himself.

19 . By a letter of 3 November 2015, the Warsaw Regional Prosecutor dismissed the applicant ’ s further appeal. It was stressed that the private DNA test results submitted by the applicant were not reliable. It was further noted that in the case in issue, “biological truth” could not prevail over the child ’ s best interests, given that I., while he was being brought up in the family of L.Z. and M.Ż., had the right to the security necessary for his proper development. The Regional Prosecutor emphasised that the refusal to initiate proceedings was based on the child ’ s best interests, after a thorough analysis of all the evidence adduced.

20 . On an unknown date the applicant complained to the Ombudsman about the refusal of the prosecuting services to institute proceedings in order to have M.Ż. ’ s recognition of I. declared null and void.

21 . On 9 February 2015 the Ombudsman agreed with the conclusions reached by the prosecution services. It was noted that for more than two years I. had been brought up by his mother and her husband, who had acknowledged his paternity before their marriage. Consequently, I. had spent half of his life with people whom he considered to be his parents, a situation that was crucial for his emotional stability. In addition, the Ombudsman noted that the applicant himself could have recognised paternity of I. before M.Å» had done so, which he had failed to do.

22 . Under Article 72 of the Family and Custody Code, if there is no legal presumption that the mother ’ s husband is the father of her child, or if that presumption has been rebutted, the paternity of the child may be established by an application for recognition of paternity by the father, or by a decision of a court.

23 . Under Articles 78 to 83, proceedings to have the recognition of a child declared null and void can be initiated by the mother, by the child or by the man who has previously recognised paternity.

24 . Under Article 86, a prosecutor may also initiate proceedings to establish or deny paternity or to have the recognition of a child declared null and void if this is necessary for the child ’ s best interests or the protection of the public.

COMPLAINTS

25 . The applicant complained that he had been prevented from recognising a child of whom he claimed to be the biological father.

THE LAW

26 . The applicant complained under Article 8 of the Convention that he was unable to have his paternity of I. recognised and that the prosecution services had refused to lodge a claim on his behalf. The relevant parts of Article 8 read as follows:

“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.”

27 . The Government submitted that Article 8 of the Convention was not applicable in the present case as in their view the applicant ’ s link with I. did not have a sufficient basis to bring the relationship within the scope of “family life” within the meaning of that provision. They also pleaded non-exhaustion of domestic remedies on the grounds that the applicant had failed to take any steps before I. ’ s birth to have his paternity recognised.

28 . The Government further maintained that the domestic authorities had correctly balanced the concurrent rights of the applicant on the one hand and those of I. on the other. The Government were of the opinion that the prosecution services had analysed the case in detail, that their decisions had been based on the child ’ s best interests and that they had taken into account all the evidence gathered in the course of the proceedings. Moreover, the Ombudsman, when reviewing the case, had also agreed with the prosecutors ’ findings.

29 . The applicant disagreed with the Government and maintained his complaint. He stressed that although married to someone else at that time, he had been in an informal relationship with L.Z. for several months. In addition, after I. ’ s birth and until August 2012 he had been helping the mother to take care of I. and had actively participated in his upbringing.

30 . The applicant further argued that the prosecution authorities had failed to establish the circumstances of the case. In particular, they had not examined whether M. Ż . ’ s ties with the child had indeed been real and genuine, given that he had been living in another town situated 200 km away. Moreover, in the applicant ’ s view the issue of the child ’ s best interests had not been given proper consideration in the present case. Lastly, the applicant disputed the findings made by the RODK experts in their opinion of 7 April 2014.

31 . The Court finds it unnecessary to deal in detail with each and every objection raised by the Government since it considers that the application should in any event be rejected for the following reasons.

32 . The Court notes the Government ’ s argument that the ties between the applicant and I. did not give rise to family life protected by Article 8 of the Convention. However, it reiterates that Article 8 of the Convention protects not only “family” but also “private” life, and the Court has found on numerous occasions that proceedings relating to the establishment of or a challenge to paternity concerned private life under Article 8, which encompasses important aspects of personal identity (see Kautzor v. Germany , no. 23338/09, § 63, 22 March 2012, and Krisztián Barnabás Tóth v. Hungary , no. 48494/06, §§ 27-28, 12 February 2013). The Court does not discern any reason to hold otherwise in the present case. The decision to reject the applicant ’ s request to have his paternity of I. examined and legally established thus falls to be examined as an interference with his right to respect for his private life.

33 . The Court further observes that the interference in question was based on Article 86 of the Family and Custody Code and was therefore lawful. It pursued the legitimate aim of ensuring legal certainty and security of family relationships. It remains to be ascertained whether in the specific circumstances of the present case a fair balance has been preserved between the interests of the applicant and the general interest (see, inter alia , Kautzor , cited above, §§ 80-81).

34 . As regards the paternity disputes initiated by the putative biological father, the Court reiterates that despite the margin of appreciation afforded to the domestic authorities in this field, the biological father must not be completely excluded from his child ’ s life unless there are relevant reasons relating to the child ’ s best interests to do so. However, this does not necessarily imply a duty under the Convention to allow the biological father to challenge the legal father ’ s status (see Kautzor , cited above, § 77, and Ahrens v. Germany , no. 45071/09, § 74, 22 March 2012).

35 . In this context the Court observes that the domestic authorities refused to bring a paternity action on behalf of the applicant, not merely because of the fact that M. Ż . had already legally recognised the child but also because they carried out a careful weighing of the child ’ s best interests (see, in that regard, Krisztián Barnabás Tóth , cited above, § 33). The prosecution authorities heard evidence from a number of witnesses and thoroughly analysed all other evidence, including expert opinions (see paragraphs 17 and 19 above). They did not accept the results of a private DNA test as it was found to be unreliable owing to the manner in which the biological material had been obtained (see paragraphs 11 and 19 above).

36 . The Court further notes that in their decisions the prosecution authorities relied on the experts ’ findings that the child had developed emotional ties with M.Ż. and treated him as his father. It was also held that the establishment of the applicant ’ s paternity would deprive the child of emotional stability, potentially causing him significant damage (see paragraphs 9, 11 and 19 above). The applicant was involved in this procedure.

37 . The Court is of the view that the domestic authorities carried out a thorough scrutiny of the interests of those involved – attaching particular weight to the interests of the child while not ignoring those of the applicant – in a procedure securing sufficient procedural safeguards for the applicant (see Krisztián Barnabás Tóth , cited above, § 37).

38 . The Court is therefore satisfied that the reasons adduced by the national authorities to justify the interference with the applicant ’ s rights were relevant and sufficient.

39 . It follows that th e application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020 .

Renata Degener Linos -Alexandre Sicilianos Deputy Registrar President