FOURTH SECTION

DECISION

Application no. 19976/15 Marius-Josefin MIHALACHE against Romania

The European Court of Human Rights (Fourth Section), sitting on 8 February 2022 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President, Iulia Antoanella Motoc, Pere Pastor Vilanova, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 19976/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 April 2015 by a Romanian national, Mr Marius-Josefin Mihalache, who was born in 1974 and lives in Drăgăneşti, Prahova county (“the applicant”);

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns an alleged infringement of the applicant’s right of access to a court as he was not allowed to join his civil claim for compensation to the criminal proceedings concerning the death of his son in a car accident, because he could not prove that he was the victim’s father. The applicant was not registered as the father on the child’s birth certificate. He also submitted that he had suffered discrimination on account of his Roma origin, as members of the Roma community were allegedly less likely to contract civil marriages and to undertake the formalities to recognise their children at birth. The application was communicated under Article 6 alone and taken together with Article 14.

2 . For over twenty years the applicant has been in a stable relationship with Ms R.M. In a letter of 2 October 2014 the Drăgăneşti local authority informed the applicant’s lawyer from the domestic proceedings that the applicant and Ms. R.M. had eight children together, and the first three (R.F., R.M.I. and R.A.I.) were not officially recognised by the applicant. All but two of the children, who were given up for adoption, were raised by the applicant and R.M. The information was not supported by any other documents.

3 . On 17 June 2009 R.M.I., who was seven at the time, was killed in a road accident.

4 . On 21 February 2013 the applicant, R.M., R.F. and R.A.I. attached civil claims to the criminal proceedings against the driver, in their capacity as the victim’s family members. No damages were sought on behalf of the fourth sibling, who was then living with the family and who, at that time, had been officially recognised by the applicant.

5 . In an interlocutory judgment of 5 June 2014 the Ploieşti District Court noted that the applicant had not been registered as the victim’s father in the birth register. He had thus not proved that he was the victim’s heir and lacked standing to bring proceedings for damages.

6. On 7 July 2014 the District Court convicted the driver and noted that the victim’s mother and siblings had received compensation via the Street Victims Protection Fund. It dismissed the applicant’s civil claim as inadmissible for the same reasons as those given in the interlocutory judgment of 5 June 2014.

7. The applicant appealed, arguing that it was well-known in the community that he was the victim’s father. He submitted letters from the Drăgăneşti local authorities and from the victim’s teacher attesting to his constant and active presence in the child’s life. Relying on Article 998 of the Civil Code (the general tort law) he sought reparation for the damage incurred and argued that not allowing him to prove the extent of that damage amounted to a breach of his right of access to a court.

8. In a final decision of 20 October 2014 the Ploieşti Court of Appeal dismissed the appeal, on the grounds that the applicant did not belong to the category of persons entitled to seek compensation, as the victim’s birth certificate bore no mention of his father’s name and as the applicant had not recognised him.

9. Relying on Article 6 of the Convention the applicant complained that his right of access to a court had been breached in so far as the domestic courts refused to allow him to prove that he had been the victim’s father and was thus entitled to seek compensation. He considered that the only reason why he was not granted leave to join the proceedings as a civil party was that he was Roma and argued that traditionally Roma did not systematically comply with the legal formalities of marriage and recognising their children.

THE COURT’S ASSESSMENT

10. Being the master of the characterisation of the facts of the case to be given in law ( Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018) and having regard to its long ‑ standing case-law on similar matters, the Court will examine the applicant’s complaint from the viewpoint of Article 6 of the Convention taken alone and together with Article 14 of the Convention (see Muñoz Díaz v. Spain , no. 49151/07, §§ 59-62, ECHR 2009; and Weller v. Hungary , no. 44399/05, §§ 30-35, 31 March 2009).

11. The general principles relating to the State’s obligations under these Articles were summarised by the Court respectively in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79, 5 April 2018), and D.H. and Others v. the Czech Republic ([GC], no. 57325/00, §§ 175-81, ECHR 2007 ‑ IV).

12. In the present case, access to compensation for a victim’s close relatives, as required by the Convention (see, for a recent reiteration, mutatis mutandis , under Article 2 of the Convention, Vanyo Todorov v. Bulgaria , no. 31434/15, §§ 49, 62-63 and 65, 21 July 2020) was ensured by domestic law, as evidenced by the fact that the mother and siblings were accepted as civil parties in the proceedings and received compensation (see paragraph 4 above).

13. The applicant was not married to the victim’s mother. Therefore, he was not automatically recognised as the child’s father, but would have had to make a statement to that effect before the local authorities during the child’s lifetime (see Ostace v. Romania , no. 12547/06, § 16, 25 February 2014). As indicated by the Government, the domestic law did not allow for a post mortem recognition of paternity if the deceased person did not leave children (Article 57 of the Family Code applicable at that time).

14 . It remains to be examined whether not allowing the applicant to assert his paternity following the victim’s accidental death, and thus preventing him from claiming compensation in the proceedings against the driver, violated his right of access to court. At the outset, it is to be noted that this limitation pursued a legitimate aim (see Zubac , cited above, § 78), that is the protection of the rights of others, notably the child’s lawful heirs, in particular by preventing the putative father from asserting paternity for the sole purpose of inheriting the deceased child’s fortune. Moreover, nothing in the file indicates that the applicant, who recognised six of Ms R.M.’s children, of which at least one during the victim’s lifetime (see paragraphs 2 and 4 in fine above), was unable to recognise R.M.I. while the child was alive. Consequently, the limitations applied did not restrict the applicant’s access to a court, provided by Article 6 of the Convention, in such a way or to such an extent that the very essence of the right would be impaired (ibid., § 78).

15 . Lastly, the applicant did not submit any evidence, be it statistical or of any other kind, showing that the limitation to his access to a court was linked to his ethnic origin or affected members of the Roma community to a greater extent than other members of society (see D.H. and Others v. the Czech Republic , cited above, §§ 177 and 188). For their part, the Government submitted a point of view by the National Centre for Roma Culture – Romano Kher (public institution under the authority of the Ministry of Culture) indicating that the traditions of the Roma community concerning marriage and recognition of children are not different to those of the non ‑ Roma community.

16 . There is thus no indication that the applicant has been treated differently on account of his ethnic origin.

17. Bearing in mind the conclusions it reached in paragraphs 14 and 16 above, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Accordingly, 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 3 March 2022.

Ilse Freiwirth Gabriele Kucsko-Stadlmayer Deputy Registrar President