FOURTH SECTION

DECISION

Application no . 3980/06 D ali PARGHALAVA against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 4 March 2014 as a Committee composed of:

Päivi Hirvelä , President, Nona Tsotsoria , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 5 January 2006 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Dali Parghalava , is a Georgian national, who was born in 1956 and lives in Poti . She was represented before the Court by Ms T. Askurava , a lawyer practising in Tbilisi . The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze , of the Ministry of Justice .

A. The circumstances of the case

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

On 15 February 1994 the applicant gave birth to a daughter out of wedlock. In 2001 she lodged a civil action against her child ’ s putative father, requesting that the latter ’ s paternal link be confirmed legally and that the respondent be ordered to give his name to the child and pay maintenance.

In the course of the proceedings, the applicant requested that a DNA blood test be conducted for the purposes of examining the bloodline between her child and the respondent. That request was rejected by the domestic courts for unknown reasons.

By a judgment of 5 April 2005, the Kutaisi Regional Court dismissed the applicant ’ s civil action as unsubstantiated. The court stated that the primary importance for the purposes of establishment of legal paternity should be attached, within the meaning of Article 1190 § 3 of the Civil Code, to “circumstances which could prove the fact of a family-like cohabitation between the respondent and the mother of the child, the fact of having jointly run a household or of the respondent ’ s participation in the upbringing of the child”. However, the court reproached the applicant for failure to show that any such factual circumstances had existed.

On 20 July 2005 the Supreme Court rejected the applicant ’ s cassation appeal and upheld the judgment of 5 April 2005 in full.

B. Relevant domestic law

Prior to 20 December 2011, that is when the domestic proceedings in the present case were still pending, Article 1190 § 3 of the Civil Code read as follows:

Article 1190 § 3

“When establishing paternity, the court shall have regard to whether the mother and the respondent [putative father] have cohabitated and jointly kept a household prior to the birth of the child or have contributed together to the upbringing and nurture of the child or to a document which proves with sufficient certainty that the fact of paternity has been conceded to by the respondent.”

On 20 December 2011 Article 1190 of the Civil Code, notably its paragraphs 3 and 4, were amended in order for the results of a DNA test to become the primary ground for the establishment of civil paternity, followed by such other factors as those which had been mentioned in the previous version of Article 1190 § 3 of the Civil Code. Thus, the amended provisions of the Code currently read as follows:

Article 1190 §§ 3 and 4

“The court shall establish paternity on the basis of the results (evidence) of a biological (genetic) or anthropological examination.

If it is not possible to establish paternity on the basis of the grounds mentioned in paragraph 3, the court shall have regard to whether the mother and the respondent [putative father] have cohabitated and jointly kept a household prior to the birth of the child or have contributed together to the upbringing and nurture of the child or to a document or factual circumstances which prove with sufficient certainty that the fact of paternity has been conceded to by the respondent.”

Pursuant to Article 46 § 1 (a) and (e) of the Code of Civil Procedure, claimants in proceedings concerning the issues of, respectively, child maintenance payments and alleged breach of minors ’ rights shall be exempted from any court fees.

According to Article 53 of the Code of Civil Procedure, a winning party in a civil dispute is entitled to seek reimbursement from the opponent of all the costs and expenses incurred in the course of the relevant court proceedings.

Article 423 § 1 (g) of the Code on Civil Procedure reads as follows:

“A final and enforceable judgment can be reviewed on the basis of newly discovered circumstances, if ... (e) the European Court of Human Rights has established in a final judgment (or in a decision) a breach of a provision of the Convention or of the Protocols thereto and the impugned [domestic] judgment is based on that breach.”

COMPLAINTS

The applicant complained under Article s 6 § 1 and 8 of the Convention about the outcome of the domestic proceedings – the inability to have legal paternity established for her minor child.

THE LAW

A. As regards the complaint under Article 8 of the Convention

On 15 May 2008 the Court communicated, under Article 8 of the Convention, the applicant ’ s complaint about the inability to have paternity established with respect to her child.

On 25 October 2013 the Government informed the Court that, for the purposes of effecting a friendly settlement of the case, they had agreed with the applicant to the terms of the following declaration:

“The Government acknowledge that there were deficiencies in the Civil Code which prevented the applicant from comprehensively exercising her rights under Article 8 of the Convention.

Considering that the applicant is entitled to apply for the reopening of the initial civil proceedings at the domestic level (pursuant to Article 423 § 1 (g) of the Code of Civil Procedure) in order to have paternity established and child maintenance paid from the date of the institution of the initial proceedings,

Taking into account that a decision on paternity will be determined on the basis of, inter alia , the results of a DNA test,

Bearing in mind that the applicant shall be exempted from any court fees that might be applicable to such proceedings, in accordance with Article 46 § 1 (a) and (e) of the Code of Civil Procedure,

Considering that the applicant shall be entitled, in line with the relevant domestic rules, to seek reimbursement of all her costs and expenses incurred in the course of the domestic proceedings,

The Government are prepared to pay the applicant, within the scope of the current declaration, a sum of 3,000 (three thousand) Euros to cover any pecuniary and non ‑ pecuniary damages and costs and expenses, plus any tax that may be chargeable to the applicant. This sum will be converted into Georgian laris at the rate applicable at the date of payment, and paid within three months of the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

The fulfillment of the above-mentioned conditions shall constitute the final resolution of the case.”

The above-mentioned declaration was duly signed by both the Government and the applicant ’ s representative.

The Government also submitted a copy of the relevant domestic decision which confirmed that, following a friendly settlement reached between the parties and endorsed by the Court in a similar application concerning the inability to establish paternity on the basis of a DNA test (see Okroshidzeebi v. Georgia ( dec. ), no. 60596/09 , §§ 1-18, 11 December 2012 ), the domestic courts had duly reopened the initial civil proceedings, examined the claim anew and granted it in full, in accordance with the amended version of Article 1190 §§ 3 and 4 of the Civil Code and the provisions of the Code of Civil Procedure cited in the above-mentioned declaration.

On 30 October 2013 the Court, transmitting the Government ’ s submissions to the applicant, confirmed to both parties that it would soon examine their request for the strike-out of the application. The applicant did not submit any comments in reply.

Accordingly, taking note of the friendly settlement reached between the parties , the Court, is satisfied that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine .

Accordingly, the Court considers that the application should be struck out of its list of cases in so far as it relates to the complaint under Article 8 of the Convention.

B. As regards the remainder of the application

As to the remaining complaint under Article 6 § 1 of the Convention, the Court , in the light of all the material in its possession and in so far as the matters complained of are within its competence, finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of 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

Decides to strike the application out of its list of cases under Article 37 § 1 (b) in so far as it relates to the complaint under Article 8 of the Convention;

Declares the remainder of the application in admissible .

Fatoş Aracı Päivi Hirvelä Deputy Registrar President