FIRST SECTION

DECISION

Application no. 4936/11 Piotr CHMIELEWSKI against Poland

The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:

Aleš Pejchal, President, Krzysztof Wojtyczek, Jovan Ilievski, judges, and Abel Campos , Section Registrar ,

Having regard to the above application lodged on 21 December 2010,

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 Piotr Chmielewski, is a Polish national who was born in 1980 and lives in Legionowo. He was represented before the Court by Ms M. GÄ…siorowska, a lawyer practising in Warsaw.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

4. On 25 December 2000 the applicant married K. They had two daughters: O., born on 13 January 2001, and E., born on 13 June 2006.

5. Towards the end of 2007 the applicant found out that K. had been unfaithful and that he was not O. or E. ’ s father.

6. On 31 October 2007 the applicant submitted DNA samples to a private medical laboratory. The test results of 9 November 2007 confirmed that he was not the father of either girl.

7. On 29 April 2008 K. made a request to the Legionowo District Prosecutor to bring an action in her name to deny the applicant ’ s paternity of E. She stated that the applicant was not the father of her daughters. She submitted that E. ’ s father was a certain P.H. She did not know who O. ’ s father was as she had become pregnant after being raped during a stay in the Netherlands.

8. On 24 June 2008 the Legionowo District Prosecutor filed a statement of claim with the Legionowo District Court to deny the applicant ’ s paternity of the younger girl, E.

9. On 10 March 2009 the Legionowo District Court gave judgment and declared that the applicant was not E. ’ s father.

10. Meanwhile, on 24 September 2008, K. instituted divorce proceedings.

11. On 10 March 2009 the applicant requested that the Legionowo District Prosecutor bring an action in his name to deny his paternity of O.

12. On 11 March 2009 the Legionowo District Prosecutor refused his request, basing his decision on the best interests of the child. The prosecutor noted that although the DNA test had indeed confirmed that the applicant was not O. ’ s father, the fact that it had not been possible to establish who the real father was meant that bringing such an action was not in the child ’ s best interests.

13. On 19 March 2009 the applicant appealed. However, on 15 April 2009 the Warsaw Regional Prosecutor replied that there were no grounds to amend the original decision.

14. On 22 June 2009 the applicant sent a letter to the Legionowo District Prosecutor, informing him that a certain K.M. was O. ’ s father. However, K.M. denied paternity when questioned by the prosecutor. At the same time, K. maintained that she had become pregnant with O. after being raped in the Netherlands.

15. On 31 August 2009 the Legionowo District Prosecutor refused to bring an action in the applicant ’ s name. The prosecutor again noted that DNA evidence excluded the applicant ’ s paternity of O. but that since it was not possible to establish who the child ’ s real father was, such an action was not in the child ’ s best interests.

16. On 28 October 2009 the applicant requested that the Warsaw Regional Prosecutor bring an action in his name for denial of his paternity of O. He relied on Article 8 of the Convention and referred extensively to the Court ’ s case-law.

17. On 4 December 2009 the Warsaw Regional Prosecutor replied that there were no grounds to bring proceedings to deny the applicant ’ s paternity. The prosecutor noted in particular that the applicant had married K. when she was already pregnant with O. and that after the child ’ s birth he had participated in O. ’ s upbringing for at least seven years. In addition, he had known of K. ’ s stay in the Netherlands. Moreover, it appeared from K. ’ s submissions that the applicant had been aware before the marriage that he was not O. ’ s father.

18. On 27 January 2010 the applicant lodged an appeal and asked the Warsaw Appellate Prosecutor to reconsider his request to bring proceedings for denial of paternity on his behalf.

19. On 9 July 2010 the Warsaw Appellate Prosecutor again rejected his request. The prosecutor considered that bearing in mind the best interests of the child there were no grounds to bring proceedings to deny the applicant ’ s paternity. It was also noted that the applicant had failed to demonstrate that the rule of law required such a decision, which would also not be in the child ’ s best interests if the child had not been recognised by another man. However, the applicant had failed to establish beyond any doubt who O. ’ s real father was.

20. On 22 September 2010 the Warsaw Regional Court issued a divorce decree and declared that K. was at fault for the breakdown of the marriage. It further awarded custody of O. to the mother and deprived the applicant of his parental authority over the child. The applicant was also ordered to pay maintenance of 200 Polish zlotys per month to K. for O. ’ s care.

21. On 9 May 2017 the Legionowo District Prosecutor filed a statement of claim with the Legionowo District Court for denial of the applicant ’ s paternity of O. The defendants in the proceedings were the applicant, K. and O. The prosecutor noted that the applicant ’ s request to bring a claim for denial of paternity had been refused on 11 March 2009. However, in view of new evidence, in particular a fresh questioning of the child ’ s mother and a letter from the Legionowo Social Care Centre, it appeared that K.M. was O. ’ s father. The applicant had no contact with O., did not pay maintenance and there was no emotional bond between them. Moreover, O. was aware that the applicant was not her father. The prosecutor also noted that K. did not deny the results of the DNA test of 9 November 2007. She further confirmed that in the event of a decision on denial of the applicant ’ s paternity she would lodge a claim to establish K.M. ’ s paternity of O. The prosecutor concluded that it was in the child ’ s best interests to have her legal situation clarified.

22. A first hearing in the case was set for 15 December 2017.

B. Relevant domestic law and practice

23. Article 62 §§ 1 and 3 of the 1964 Family and Custody Code ( Kodeks Rodzinny i Opiekunczy – “the Family Code”) provides, in so far as relevant:

“1. If a child was born during a marriage, or within three hundred days of its termination or annulment, it shall be presumed that he or she is the child of the mother ’ s husband. This presumption shall not apply if the child was born more than three hundred days after a judicial separation.

...

This presumption may only be rebutted as the result of an action for the denial of paternity.”

24. In accordance with Article 63 of the Family Code, it is possible to bring an action to deny paternity:

“The mother ’ s husband may bring a legal action for denial of paternity within six months of when he learned of his wife giving birth to the child, but no later than when the child reaches the age of majority.”

25. Similarly, in accordance with Article 70 § 1 of the Family Code, a child may deny the paternity of the husband of his or her mother within three years of reaching majority.

26. Finally, under Article 86 of the Family Code, as amended with effect from 13 June 2009, paternity may at any time (as long as the child is alive) be challenged by a prosecutor for reasons of the child ’ s best interests or the protection of the interests of the public.

COMPLAINTS

27. The applicant complained under Articles 6 and 8 of the Convention that he had had no possible means of challenging his paternity of O.

THE LAW

28. The applicant complained that he had not had the possibility to bring proceedings for the disavowal of his paternity of O. He relied on Articles 6 and 8 of the Convention.

29. The Government submitted that the complaint under Article 6 of the Convention was inadmissible as incompatible ratione materiae. They were further of the view that the application was inadmissible as manifestly ill-founded. Lastly, they submitted that on 9 May 2017 the prosecutor had eventually brought a claim for disavowal of the applicant ’ s paternity and asked for that development to be taken into consideration when examining the case.

30. The applicant disagreed with the Government ’ s objections. He confirmed that the proceedings for disavowal of paternity had indeed recently been instituted by the prosecutor. However, he pointed out that for many years the prosecutor had refused to institute such proceedings. Moreover, the prosecutor had not relied on any new evidence in his statement of claim.

31. The Court does not find it necessary to decide on the Government ’ s objections because the application is in any event inadmissible for the following reasons.

32. The Court firstly 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 prosecutor ’ s refusal to institute proceedings for the disavowal of his paternity of O. 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).

33. The Court further observes that the applicant wished to bring an action denying his paternity of O., who was born in 2001 while the applicant was married. Under the relevant domestic law, as applicable at the material time, a husband could repudiate a child conceived in wedlock by bringing relevant civil proceedings within six months of his learning of the birth of the child. The Court notes in this respect that the applicant only began having doubts as to his paternity of O. in 2007 (see paragraph 5 above).

34. Although the applicant was himself prevented from bringing an action to deny paternity after the expiry of the relevant time-limit, it was open to him to request the prosecutor to bring such a claim, even after expiry of that period (see paragraph 26 above).

35. The Court observes that the prosecutors did indeed refuse several times to lodge a claim for denial of the applicant ’ s paternity of O. (see paragraphs 12 and 15 above). At the time of those events, O. was eight years old. However, the Court notes that the prosecution services carefully examined the merits of the case, noted the applicant ’ s arguments and assessed the evidence. The domestic authorities took into account the applicant ’ s and O. ’ s different interests, carefully balanced those interests, and provided detailed reasons for their findings. They noted in particular, that the applicant had married K. when she had been already pregnant and that for at least seven years he had participated in O ’ s upbringing. Moreover, there were no real prospects that the identity of O. ’ s biological father would ever be established (see paragraphs 12, 15, 17, 19 above). In those particular circumstances of the present case, the Court considers it justified to give greater weight to the interests of the child than to the interest of the applicant in disproving his paternity (see, Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999).

36. In that respect, the present case differs significantly from the case of Paulík v. Slovakia , (see, no. 10699/05, ECHR 2006 ‑ XI (extracts)). In the latter case, the prosecution service had repeatedly refused to lodge a claim in the applicant ’ s name and to challenge his judicially established paternity, despite the fact that the applicant ’ s putative daughter, an adult at the time of the events, herself had no objections to the institution of such proceedings.

37. Most importantly in the instant case, the Court points out that as soon as the circumstances changed and the child ’ s mother confirmed that a certain K.M. had been O. ’ s father, the prosecutor lodged a claim on the applicant ’ s behalf on 9 May 2017 (see paragraph 21 above). Those proceedings are now pending before the Legionowo District Court and the applicant has prospects of having his paternity of O. reviewed.

38. 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 the legal certainty of family relationships and the applicant ’ s right to have his paternity reviewed. There is further no indication that the manner in which the authorities exercised their powers was arbitrary or perfunctory.

39. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 July 2018 .

Abel Campos Aleš Pejchal Registrar President