FIFTH SECTION

DECISION

Application no . 55775/13 Carmel CUTAJAR against Malta

The European Court of Human Rights (Fifth Section), sitting on 23 June 2015 as a Committee composed of:

Boštjan M. Zupančič, President, Helena Jäderblom, Aleš Pejchal, judges,

and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 22 August 2013,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Carmel Cutajar, is a Maltese national, who was born in 1951 and lives in Malta. He was represented before the Court by Dr T. Azzopardi, a lawyer practising in Valetta.

A. The circumstances of the case

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

1. Background to the case

The applicant and his wife married in 1974, on the insistence of the applicant ’ s father.

In 1974 the applicant ’ s wife became pregnant but miscarried, she became pregnant again in 1975 and in 1976 gave birth to X.

In 1981 the applicant separated from his wife and had a relationship with another woman with whom he tried to have a child. After years of failed attempts and relevant testing, in 1987 medical doctors certified the applicant to be suffering from a condition (Sertoli Cell Only Syndrome), as a result of which he could not have children.

2. Disavowal of paternity proceedings

Following his diagnosis, in 1987, the applicant instituted an action before the Civil Court (First Hall) in its civil jurisdiction for the disavowal of paternity of X.

The court appointed a medical and a legal expert and authorized the applicant ’ s request for three additional experts. During the proceedings the applicant and X, in 1992, underwent DNA testing – their blood samples were sent to C, a laboratory in London, for examination. According to the DNA test, which had been run twice as the first time the samples had been labelled wrongly, the applicant was X ’ s father, from whom he had inherited twenty-one genetic markers. Following the results, the applicant alleged that his own father could have been the father of X. According to medical opinion, the probability that the applicant would have had twenty-one markers if he were only the half-brother of X was 1/19,000.

The applicant submitted certification, dated October 1993, by an English endocrinologist (who was not available for cross-examination), which stated that, in respect of the applicant no spermatogenic activity had been detected and it was likely that the applicant had been born with this condition. The certification further stated that it had certainly been present by the time the applicant went through puberty. The experts appointed in the proceedings drafted a report in view of all the certification and evidence brought before the court and considered that this statement had been made in a general context and before the DNA tests had been carried out.

By a judgment of 21 June 2002, the Civil Court (First Hall) in its civil jurisdiction dismissed the action. Having heard witness evidence from various people, who knew the individuals involved, it considered that the plaintiff had not proved that his wife had been adulterous, whether with his father or with any other man. Indeed this was in line with the results of the DNA tests which indicated that the applicant was X ’ s father.

The applicant lodged an appeal alleging that the Civil Court had ignored the fact that due to his condition he could not have children.

By a judgment of 17 February 2004, the Court of Appeal having re ‑ examined in detail the available evidence, confirmed the assessment of the first-instance court and thus its decision. The court also took account of the assessment of the additional medical experts (which had been cross-examined by the applicant, who had submitted both oral and written questions to them at first-instance) concerning in particular the applicant ’ s azoospermia (a medical condition of a man not having any measurable level of sperm in his semen ), and concluded that the applicant had not proved that he could never have had children.

3. Request for retrial

On 28 October 2004 the applicant filed a request for the retrial of the disavowal of paternity action, basing himself on a legal provision which stated that a retrial was possible if a document that could have been conclusive was discovered. He argued that the court-appointed medical experts in the proceedings had failed to indicate recent technological advances existing at the time. He alleged that a new DNA test (k/a PP16 S) could have made it possible to obtain a more accurate or correct result, and thus such document would allow the reopening of proceedings.

On 29 April 2005 the Court of Appeal dismissed the applicant ’ s request in so far as no new document had been found. The situation solely concerned a possibility of obtaining a new test which could possibly have borne a different result, thus the requirements of the law concerning re ‑ opening of proceedings had not been fulfilled. It further considered that the applicant was re-attempting to have a third-instance finding on his case, and that his claim was frivolous.

4 . Proceedings before the Court

In 2005 the applicant brought proceedings before this Court complaining under Articles 6, 8 and 13. On 26 January 2006 the application was declared inadmissible by a committee of three judges for non-exhaustion of domestic remedies.

5 . Constitutional redress proceedings

On 11 April 2006 the applicant instituted constitutional redress proceedings. Relying on Article 6 the applicant complained that his right to a fair trial had been violated as both the Civil Court and the Court of Appeal had wrongly assessed the evidence before them, they had ignored the expert opinion concerning his condition in favour of an outdated DNA test and the recommendation of additional experts who had failed to note advanced technologies. Furthermore, his right to determine X ’ s paternity had been hindered by the third court ’ s decision to reject his request for a modern DNA test. He claimed that this hindrance had also breached his right to respect for his private and family life under Article 8, and it had denied him an effective remedy under Article 13.

During the proceedings the applicant ’ s ex parte expert declared that a PP16 S test could give more precise results. At the same time, the defendant ’ s ex parte expert contradicted this view and considered that the test done in 1992 was 99.9% accurate. A court-appointed expert submitted that the test known as PP16 S became available in 2000 and was available in Malta sometime after, the latter test made use of a reference sixteen markers to determine an identity. The court-appointed expert considered that C was a reference laboratory and although it could not be said what means were used to run the test, it would appear that despite their test not being as modern as that of today ’ s PP16 S, it however made use of twenty ‑ one variable markers. Thus, it could be said to have also been precise and in his view it did not transpire that the new test would offer further advantages.

By a judgment of 3 February 2012, after having given weighty consideration to the court-appointed expert ’ s report, the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant ’ s claims.

It considered that an incorrect assessment of evidence could not lead to a violation of Article 6. The court, having examined the iter of the three instances, noted that the applicant had been able to adduce evidence, cross ‑ examine witnesses and challenge evidence brought by the other parties, as well as submit pleadings. The civil courts had examined all the relevant materials and reached decisions in the exercise of their discretion which would not be overturned by the constitutional jurisdiction. As to the applicant ’ s complaint concerning the refusal of his retrial request, it considered that the court-appointed expert (in the constitutional redress proceedings) stated that a new test would not have offered any advantages over the old one. It followed that the refusal of the applicant ’ s request had not breached his rights, and therefore a remedy needed not be granted.

It further considered that there was no violation of Article 8 since in the present case there was no need to have the legal presumption of the applicant ’ s paternity reviewed in the light of biological evidence, in so far as the biological evidence requested by the applicant could not give better results than those which had established his paternity of X some years before. Having considered that the applicant had no arguable claims, the court held that Article 13 did not apply to his case.

The applicant appealed.

By a judgment of 22 February 2013, the Constitutional Court confirmed the first-instance judgment.

It noted further that the applicant had had fully Article 6 compliant proceedings. Moreover, test PP16 S became available in 2000, and yet the applicant had failed to request such a test at the time, when the case was still pending before the first-instance court which decided his paternity challenge in 2002. Nor did he raise it on appeal, which was concluded in 2004. It was only raised, erroneously, in October 2004 in the ambit of his request for retrial. Further, the Constitutional Court considered that the decision on his retrial request was based on a proper application of the relevant law.

Under Article 8, referring to the Court ’ s case-law, it pointed out the applicant ’ s lack of diligence, since he had failed to make his requests at the relevant time despite him having a reasonable opportunity to so do. It also distinguished the case from other cases decided by the Court and concluded that having regard to the interests of the applicant ’ s wife not to be seen as an adulterous women and X to have legal certainty concerning his paternity, a fair balance had been reached between the rights of society to have legal certainty of familial ties and the interests of the applicant. Lastly, concerning the complaint under Article 13 it considered that even assuming that the applicant had had an arguable claim, he could not be entitled to a “remedy” or compensation in the absence of a violation of the invoked provisions.

B. Relevant domestic law

Article 811 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, in so far as relevant reads as follows:

“ A new trial of a cause decided by a judgment given in second instance ..., may be demanded by any of the parties concerned, such judgment being first set aside, in any of the following cases:

( k ) where, after the judgment, some conclusive document was obtained, of which the party producing it had no knowledge, or which, with the means provided by law, he could not have produced, before the judgment;”

COMPLAINTS

Invoking Article 6 the applicant complained that his right to a fair trial had been violated as both the Civil Court and the Court of Appeal in the paternity proceedings had wrongly assessed the evidence before them and later the Court of Appeal had also refused his request for retrial. Furthermore, he complained that his right to determine X ’ s paternity had been hindered by the domestic courts in breach of Article 8. Lastly, the applicant invoked Article 13 given that all the courts had rejected his request.

THE LAW

A. Article 8

The applicant complained that his right to determine X ’ s paternity had been hindered by the domestic courts ’ refusals to order a new DNA test, and, thus, were in breach of Article 8.

The provision reads as follows:

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

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.”

In the instant case the applicant sought to challenge the paternity of a child following a medical diagnosis. The purpose of those proceedings was to determine his legal relationship with X which has direct implications for his private sphere and concerns matters such as entries in the registers of births and marriages, inheritance and, arguably, also had implications for his social identity in a broader sense (compare, Mizzi v. Malta , no. 26111/02, § 102 ‑ 104, ECHR 2006 ‑ I (extracts) and Paulík v. Slovakia , no. 10699/05, § 42, ECHR 2006 ‑ XI (extracts)) . Accordingly, the facts of the case fall within the ambit of “private life” pursuant to Article 8.

The Court reiterates that its task is not to substitute itself for the competent domestic authorities in regulating paternity disputes at the national level, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation and examine whether the state, in handling the applicant ’ s paternity claim, has been in breach of its positive obligation under Article 8 of the Convention (see Shofman v. Russia , no. 74826/01, § 34, 24 November 2005; and Mikulić v. Croatia , no. 53176/99, § 59, ECHR 2002 ‑ I).

The Court notes that the applicant complains about the domestic courts ’ refusal to allow a new DNA test. However, as also noted by the Constitutional Court, the Court observes that in the main disavowal of paternity proceedings, which were ongoing at the time of the availability of the new PP16 S test, the applicant had failed to request such a test. The Court considers that, given that a DNA test had already been undertaken and was not inadmissible for any procedural or other reasons, it cannot be said that it was for the courts to order a further test of their own motion in the absence of a request by the applicant (see conversely, Kalacheva v. Russia , no. 3451/05, § 34, 7 May 2009, where the Court found a violation of Article 8 where the domestic courts had failed of their own motion to order a new test after declaring the first one inadmissible) .

The Court further observes that the domestic courts ’ decisions in those proceedings were reached after assessing all the available evidence and were based on the material produced before them by the parties and the expert ’ s conclusions, including the DNA test performed in 1992. Indeed according to the Court, a DNA test is the only scientific method of determining accurately the paternity of a child and its probative value substantially outweighs any other evidence to prove or disprove the fact of an intimate relationship (see Kalacheva , cited above, § 34, 7 May 2009). In consequence it cannot be said that the Civil Court and Court of Appeal in the disavowal of paternity proceedings, whose decision reflected the result of such test, failed in their obligation to respect the applicant ’ s rights.

Furthermore, the Court notes that the conclusions reached by those courts were reaffirmed by the constitutional jurisdictions in the light of new expert opinions. The Constitutional Court assessed the balance between, on the one hand, the applicant ’ s right to know whether he was really X ’ s father and, on the other hand, the son ’ s right to have legal certainty of his family ties and the mother ’ s right to clear her reputation. It considered that a balance had been reached given the interests at play. The Court has already held that it is justifiable for domestic courts to give greater weight to the interests of the child and the family in which it lives than to the interest of an applicant in obtaining determination of a biological fact (see Nylund v . Finland , (dec.), no. 27110/95, 29 June 1999), and it finds no reason to hold otherwise in the present case, particularly given the applicant ’ s negligence at the time of the main proceedings.

As to the refusal of the applicant ’ s request for retrial in the light of Article 8, the Court firstly notes that this is an extraordinary remedy, and there was no reason why the applicant would have had to resort to such proceedings given the availability of the PP16 S test at the time of the main proceedings. In consequence, and in the absence of any reasons being advanced justifying a failure to act at the time of the main proceedings, the Court considers that in applying the law to the letter as it did, it cannot be said that the Court of Appeal hearing the retrial request breached the applicant ’ s rights (see, conversely, Paulík, cited above, § 47 where the Court found a violation as the applicant had been refused, in accordance with domestic law and the relevant time-limits, a review of the judicial declaration of his paternity in the light of new biological evidence which was not known to him at the time of the original paternity proceedings; and where the daughter had no objection to the applicant ’ s disclaiming paternity) .

It follows that an examination of all the decisions given by the domestic courts at different levels and jurisdictions does not disclose any appearance of a violation of the applicant ’ s rights and freedoms set out in Article 8 of the Convention. The complaint is therefore manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Article 6

Invoking Article 6 the applicant complained that his right to a fair trial had been violated as both the Civil Court and the Court of Appeal in the paternity proceedings had wrongly assessed the evidence before them, in particular they ignored the evidence by the endocrinologist, and the Court of Appeal had also refused his request for retrial. He argued that none of these decisions had been made right by the constitutional jurisdictions.

The provision reads as follows:

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

The Court reiterates that Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (see Dulaurans v. France , no. 34553/97, § 33 , 21 March 2000 ). However, as a general rule, the assessment of the facts is within the province of the national courts ( García Ruiz v. Spain [G.C.] no. 30544/96, § 28 ECHR 1999-I) and it is, in principle, for the national courts to assess the evidence before them (see Wierzbicki v. Poland , no. 24541/94, § 39, 18 June 2002). The latter cannot be examined by the Court unless there is reason to believe that the domestic courts drew arbitrary or grossly unfair conclusions from the facts submitted to them (see Waldberg v. Turkey , no. 22909/93, Commission decision of 6 September 1995, Decisions and Reports (DR) 82-B).

The Court notes that in the present case the civil courts ’ decisions in the disavowal of paternity proceedings were based on their discretion in assessing the evidence which the applicant was able to rebut in Article 6 compliant proceedings. Further, the decision on the applicant ’ s retrial was in conformity with the law (see relevant domestic law above) as also confirmed by the constitutional organs.

It follows that in the Court ’ s view there is nothing arbitrary in those decisions and the complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Article 13

Relying on Article 13 the applicant complained that he did not have an effective remedy given that all the courts had rejected his request.

The provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey , 18 December 1996, § 95, Reports 1996-VI, and Aydın v. Turkey , 25 September 1997, § 103, Reports 1997 ‑ VI). However, the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006 ‑ VII), and the mere fact that an applicant ’ s claim fails is not in itself sufficient to render the remedy ineffective ( see Amann v. Switzerland , [GC], no. 27798/95, §§ 88 ‑ 89, ECHR 2002 ‑ II).

Even accepting that the applicant had an arguable claim, the Court observes that the applicant has had the possibility of bringing disavowal of paternity proceedings, at first-instance and on appeal (see, conversely, Mizzi , cited above, § 91, ECHR 2006 ‑ I (extracts)) . The matter was further assessed by the constitutional jurisdictions, in specific detail, at two instances. The latter courts could also have upheld the applicant ’ s claim and if necessary given the relevant redress (see , for example, Brincat and Others v . Malta , nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11 , § 65, 24 July 2014) .

It follows that the applicant has had an effective remedy available at the national level and his complaint under these provisions is therefore also 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 16 July 2015 .

Milan Blaško Boštjan M. Zupančič Deputy Registrar President