FIRST SECTION

DECISION

Application no. 58370/13 Jerzy HYCKI against Poland

The European Court of Human Rights (First Section), sitting on 16 June 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 22 August 2013,

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

1 . The applicant, Mr Jerzy Hycki , is a Polish national, who was born in 1943 and lives in Zamość . He was represented before the Court by Mr J. Kaczyński , a lawyer practising in Warsaw.

2 . The Polish Government (“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 . On 18 December 1973, a certain M.S. with whom the applicant had had sexual contact but to whom he was not married, gave birth to a son, A.

5 . As the applicant denied being A. ’ s father, M.S. initiated proceedings before the Zamo ść District Court for a judicial determination of his paternity.

6 . On 3 December 1974 the Zamo ść District Court declared that the applicant was A. ’ s father and ordered him to pay monthly maintenance. The court took its decision after hearing several witnesses and analysing the results of a blood test and a report by an expert in gynaecology.

7 . The applicant appealed. On 16 October 1975 the Lublin Regional Court dismissed his appeal and the judgment became final and binding. The applicant complied with the order requiring him to pay maintenance.

8 . In 2011, the applicant employed a detective agency in order to obtain biological material from A. Subsequently, he conducted a DNA test in a private laboratory. The test was conducted on the basis of A ’ s biological material collected by the detectives (three cigarette buds) and a sample provided by the applicant. The results of that test confirmed that the persons whose DNA samples had been provided were not related.

9 . On 19 September 2012 the applicant sought to challenge his paternity by applying to reopen the proceedings on the basis of the DNA test results. He maintained that he was not A. ’ s biological father. It was true that his paternity had been determined in a final court judgment, however, this had been done on the basis of expert evidence corresponding to the state of science at the time.

10 . On 5 October 2012 the Zamo ść Regional Court rejected his application. It held that, pursuant to Article 408 of the Code of Civil Procedure, an application to reopen proceedings had to be lodged within five years of the date of a final judgment, unless the party could not act in the proceedings or had not been properly represented. Since the applicant had not alleged any of these circumstances, that time-limit in the present case had expired in 1980.

11 . The applicant lodged an interlocutory appeal, which was dismissed on 7 March 2013 by the Supreme Court. The court noted that the judgment determining the applicant ’ s paternity had been delivered in 1974 and therefore the applicant ’ s request for the reopening of the proceedings was lodged outside the prescribed time-limit.

12 . On 27 June 2014 the applicant requested the Zamo ść District Prosecutor to lodge a claim for denial of paternity on his behalf. He based his request on Article 189 of the Code of Civil Procedure and Article 86 of the Family and Custody Code.

13 . During the proceedings the prosecutor obtained statements from the applicant, his wife and M.S. The prosecutor did not hear A. as he had not resided at his home address and his whereabouts could not have been established.

14 . M.S. stated that she had had sexual relations with the applicant in spring 1973. She further stated the applicant was A. ’ s father. She refused to undergo DNA testing, submitting that it was the applicant ’ s wife who strived to prove that A. was not his son.

15 . On 12 September 2014 the Zamo ść District Prosecutor informed the applicant that his paternity had already been determined by a court and was therefore considered to be res iudicata . Moreover, there were no legal provisions pursuant to which the prosecution services could request that the matter was reviewed by a court.

16 . On 17 February 2015 the Zamo ść Regional Prosecutor in well ‑ reasoned decision agreed with the District Prosecutor ’ s findings. It was noted at the outset that the DNA test results submitted by the applicant were not reliable in view of the manner in which the biological material had been obtained from A. The prosecutor noted that the final court ’ s judgment determining paternity could only be reviewed following an application for the reopening of the proceedings or in the proceedings concerning the revision of maternity ( zaprzeczenie macierzynstwa ). Moreover, Article 189 of the Code of Civil Procedure defined the situations in which a person could seek a declaration of rights or the existence of a legal relationship. In the present case the applicant had no legal interest in obtaining a judgment as the final judgment had already been given in his case and was binding.

17 . Under Article 72 of the Family and Custody Code, if there is no legal presumption indicating 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 the recognition of paternity by the father, or by the decision of a court.

18 . In respect of children born out of wedlock, Article 85 of the Code provides for the presumption that a man who had intercourse with the mother no more than 300 and no less than 181 days before the birth of a child is the father.

19 . Under Article 86, a prosecutor may also initiate proceedings to establish or deny paternity or annul the recognition of paternity if this is necessary for the child ’ s welfare or the protection of the public.

20 . Pursuant to Article 408 of the Code of Civil Procedure (“CCP”), as applicable at the material time, an application to reopen proceedings had to be lodged within five years of the date of the final judgment, unless the party could not have acted in the proceedings or was not properly represented.

21 . Under Article 189 of the CCP, a person may request a declaratory judgment ( pow ó dztwo o ustalenie ) proving his capacity to pursue a particular claim and his legal interest in obtaining a judgment declaring a particular right.

COMPLAINT

22 . The applicant complained under Articles 6 and 8 of the Convention that the respondent State had failed to discharge its positive obligation to secure him effective respect for his private and family life, in particular by not providing him with any legal means for challenging his paternity.

THE LAW

23 . The applicant complained under Articles 6 and 8 of the Convention that he could not effectively contest his paternity of A.

24 . The Court considers that the applicant ’ s complaint about the alleged breach of his rights guaranteed by Articles 6 and 8 of the Convention is based on the same fact, namely the impossibility for the applicant to challenge his legal paternity on the grounds of new biological evidence. It finds that the application should be examined under Article 8 of the Convention alone (see A.L. v. Poland , no. 28609/08 , § 43, 18 February 2014 and, mutatis mutandis, Novotný v. the Czech Republic , no. 16314/13 , § 53, 7 June 2018). The relevant part of Article 8 reads 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.”

25 . The Government made a number of preliminary objections to the admissibility of the application. They submitted that it was incompatible ratione temporis and rationae materiae with the provisions of the Convention. They further pleaded non-compliance with the six-month term laid down in Article 35 § 1 of the Convention.

26 . The applicant disagreed with the Government ’ s submissions.

27 . 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.

28 . The Government submitted that the applicant attempted to challenge a final domestic judgment forty years after it had been delivered. However, there had been no exceptional reasons such as judicial error to question a ruling given in the 1970s. In particular, the child ’ s mother and A. himself had not consented to DNA testing. The applicant in his submissions had relied on a private DNA report based on biological material obtained by a detective agency. He had however, failed to submit any other objective evidence substantiating his doubts as to his paternity. He had also failed to explain the delay of over forty years of making the allegation of not being A ’ s father.

29 . The Government concluded that in view of the above considerations, the domestic courts had correctly identified the conflicting interests and values at stake and that a fair balance had been struck.

30 . The applicant submitted that that DNA profiling had been developed in 1986 and DNA parental testing became available only later. Consequently, given that a request for re-opening of the proceedings had to be lodged within five years of the date of the final judgment he had no legal possibility to challenge the judicial declaration of his paternity. He further submitted that he had never had any contact with A., who was already over forty years old and not dependant on him for maintenance.

31 . The Court has previously examined cases of men wishing to institute proceedings to contest paternity. It has found on numerous occasions that proceedings concerning the establishment of or a challenge to paternity concerned the right to a private life under Article 8, which encompasses important aspects of personal identity.

32 . In the present case, the child was born out of wedlock, the applicant had doubts from the beginning but his paternity was established by a judicial decision in the light of scientific knowledge available at that time (see paragraphs 6 and 7 above). The essence of the applicant ’ s claim is therefore that the State should have taken steps to ensure adequate measures, in the context of a paternity dispute, to resolve with certainty the question of his relationship with the child (see Novotný , cited above, § 43). Accordingly, the applicant ’ s grievance falls within the ambit of “private life” under Article 8 of the Convention and the Court must review whether the domestic authorities complied with the requirements and spirit of this provision in the exercise of their positive obligations.

33 . As regards the requirement of lawfulness and a legitimate aim, there is no indication that the conclusions reached by the domestic authorities were not “in accordance with the law”. The Court is further prepared to accept that the lack of a direct legal mechanism to enable the applicant to protect his right to respect for his private life can generally be explained by the “legitimate interest” in ensuring legal certainty and the security of family relationships and by the need to protect the interests of children. The Court is of the opinion that, with the passage of time, the rule of legal certainty gradually prevails over the need to protect the interest of concerned parties, especially children who are no longer minors. It remains to be ascertained whether in the specific circumstances of the present case a fair balance has been preserved between the interest of the applicant and the general interest (see Paulík v. Slovakia , no. 10699/05, § 44, ECHR 2006 ‑ XI, and Novotný , cited above, § 44).

34 . The Court notes that under Polish law, when a child is born in wedlock (see Darmoń v. Poland ( dec. ), no. 7802/05, 17 November 2009, and Bagniewski v. Poland , no. 28475/14 , 31 May 2018 ) or when paternity of a child born out of wedlock has been established by a joint declaration by the parents (see A.L. v. Poland, cited above) it is possible for a father wishing to deny his paternity to either institute proceedings to deny paternity or, after the expiry of the relevant time-limit, to request the prosecutor to bring such an action on his behalf. However, the present case concerns a child born out of wedlock whose paternity was established by a judicial decision, considered by the domestic authorities as res judicata regardless of the alleged new evidence put forward by the applicant (compare Klocek v. Poland ( dec. ), no. 20674/07, 27 April 2010). Thus, similarly as in Paulík and Novotny , in the instant case, the applicant could not institute proceedings to have his paternity reviewed in the light of new biological evidence which was not known to him at the time of the original paternity proceedings (see Paulík , cited above, § 45).

35 . Nevertheless, the Court observes that the applicant relied upon the results of DNA testing carried out privately to which the child and his mother had not consented (see paragraphs 14 and 28 above). Despite their lack of consent, the applicant resorted to employing a detective agency in order to obtain biological material but the domestic authorities considered the test results to be unreliable (see paragraphs 8 and 16 above). In that connection the present case closely resembles the case of Bagniewski (see Bagniewski , cited above § 48), where the domestic authorities also clearly explained why the DNA test results carried out privately by the applicant were not reliable. More importantly, in any subsequent proceedings in the instant case the domestic authorities would not be able to compel the mother and the child to undergo a DNA test as the domestic law does not provide any possibility of imposing DNA testing on persons refusing to consent to such tests (see, Bagniewski , cited above, § 53).

36 . The Court further observes that as it emerges from similar cases, while, on the one hand, people in the applicant ’ s situation have a vital interest in receiving the information necessary to uncover the truth about an important aspect of their personal identity, the protection of third persons may, on the other hand, preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing (see, I.L.V. v. Romania ( dec. ), no 4901/04, § 42, 24 August 2010 and Iyilik v. Turkey , no. 2899/05, § 33, 6 December 2011). Notwithstanding the above considerations the applicant did not present any other relevant evidence in support of his allegations that he was not A. ’ s father either before the domestic authorities or before this Court.

37 . As to the general interest in the present case, the Court points out that the applicant ’ s putative son is currently more than forty years old and is not dependent on the applicant for maintenance (compare and contrast Y ildirim v. Austria ( dec. ), no. 34308/96 , 19 October 1999). In addition, he is not in contact with the applicant and it does not appear that they ever had any strong family ties. The general interest in protecting his rights at this stage has therefore lost much of its importance compared to when he was a child.

38 . Consequently, and in particular given the lack of reliable biological evidence, it cannot therefore be said that in the present case “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 Bagniewski , cited above, § 51). Taking into consideration all the above circumstances the Court does not find it established that the authorities failed to strike a fair balance between the general interest in ensuring legal certainty of family relationships and the applicant ’ s right to have his judicially established pa ternity reviewed (see, Darmoń and Bagniewski , § 58, both cited above,).

39 . It follows that the 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 9 July 2020 .

Renata Degener Linos -Alexandre Sicilianos Deputy Registrar President