FOURTH SECTION

DECISION

Application no. 20097/15 Ilie LAZÄ‚R against Romania

The European Court of Human Rights (Fourth Section), sitting on 19 October 2021 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 above application lodged on 16 April 2015,

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 Ilie Lazăr, is a Romanian national, who was born in 1975 and lives in Avereşti, Neamţ county. He was represented before the Court by Mr R.G. Patriche, a lawyer practising in Bacău.

2. The Romanian Government (“the Government”) were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.

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

4. On 11 July 2006 a child, Y, was born to the applicant and his then spouse, Ms X. On 15 April 2010 the Bicaz District Court granted the couple’s divorce.

5 . On 16 May 2013 the applicant brought an action in the Bicaz District Court for the disavowal of his paternity on the grounds that X had told him during the divorce proceedings that he was not Y’s biological father. He further contended that he had started noticing, as Y was growing up, that the child did not resemble either him or X. He proposed evidence (documents and witnesses) and asked the court to order a DNA test. He also asked to have the time-limit for bringing the action reinstated.

6 . The District Court first examined the admissibility of the request. In a decision of 19 June 2014 it observed that the applicant had failed to lodge the request within six months of the date when the child was born as required by Article 55 of the Family Code (see paragraph 9 below). Consequently, it examined and eventually rejected the applicant’s request to have the time-limit reinstated on the ground that he had failed to bring compelling reasons for not having complied with that limit. The court considered that X’s alleged assertion that the applicant was not the child’s biological father, which moreover she had contested during the proceedings, did not constitute such a reason within the meaning of Article 186 § 1 of the Code of Civil Procedure (see paragraph 11 below).

7 . The applicant appealed. In addition to the arguments put forward in his initial request for the reinstatement of the time-limit, he submitted that in February 2013 he had obtained information from X’s doctor concerning her birth control medication at the time when the child had been conceived, which had confirmed his suspicions regarding the paternity of the child.

8 . In a final decision of 10 March 2015, the Neamţ County Court upheld the previous decision. The court considered that, in accordance with the applicable law (Article 19 of Decree no. 167/1958), the applicant should have lodged his request to have the time-limit reinstated within one month of the date when he had become aware of the medical data concerning X, which he had failed to do.

9 . The Family Code, as applicable at the time of the child’s birth, prescribed that an action for the disavowal of paternity had to be brought within six months of the date when the presumed father had knowledge of the child’s birth (Article 55 of the Family Code). That time-limit was increased to three years by Law no. 288/2007 on amending the Family Code (as interpreted by decision no. 755/2008 of the Constitutional Court) in respect of children born in wedlock after 8 November 2007, the date when that law entered into force.

10. Actions for the disavowal of paternity are currently regulated by the new Civil Code, which maintains the three-year time-limit in respect of all children born after its entry into force on 1 October 2011 (for further details, see Ostace v. Romania , no. 12547/06, §§ 15-25, 25 February 2014).

11 . Article 186 § 1 of the Code of Civil Procedure, as applicable at the time of the facts of the present case, stated that a party who did not comply with a procedural time-limit could have the time-limit reinstated if there were compelling reasons for the delay.

COMPLAINTS

12. The applicant complained under Articles 6 and 8 of the Convention that his right to prove that he was not the biological father of the child born during his marriage with X had been breached.

THE LAW

13. The applicant complained of a breach of his right of access to a court. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

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

14. The Government argued that the introduction of restrictions for bringing an action for the disavowal of paternity and their strict application was not incompatible with the Convention. The applicant had had the opportunity to bring his action within the time-limit set by law, and that time-limit was not unreasonable. Therefore, he had not suffered an infringement of his right of access to a court.

15. The applicant complained that, because of the strict procedural limitations in place, he had had no real access to a court to bring the action in question. In his view, the law had perpetuated situations which did not correspond to reality.

16. The applicable general principles are set out in Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, §§ 84 ‑ 90, 29 November 2016).

(a) Applicability of Article 6 § 1 of the Convention

17. Turning to the facts of the present case, the Court notes, at the outset, that the domestic law allows a spouse to contest the paternity of a child born in wedlock. The applicant, who was the husband of Y’s mother at the time of Y’s birth, based his claim on medical data. For these reasons, the Court is prepared to accept, at this point, that the applicant had at least an arguable claim to deny his paternity of the child and that the dispute that he wished to bring before the domestic courts, which was directly decisive for this right, was genuine and serious (see Mizzi v. Malta , no. 26111/02, § 76, ECHR 2006 ‑ I (extracts)).

18. Furthermore, the Court has previously found that an action contesting paternity is a matter of family law and, on that account alone, it is “civil” in character (ibid., § 76 in fine ).

19. Consequently, Article 6 applies to the facts of the present case.

(b) Well-foundedness of the complaint

20 . The Court reiterates that the right of access to the courts is not absolute but may be subject to limitations. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Lupeni Greek Catholic Parish and Others , cited above, § 89).

21. In the present case, the Court notes that the applicant’s action for the disavowal of paternity was dismissed as out of time (see paragraph 8 above). In this connection, the Court reiterates that the rules on time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty. Furthermore, they may protect the interests of the child, who has a right to have his or her uncertainty as to his or her personal identity eliminated without unnecessary delay (see Mizzi , cited above, § 83, with further references). It can thus be inferred that the limitation suffered by the applicant pursued a legitimate aim.

22 . As for the proportionality of the interference (ibid., § 85), the Court notes that the applicant, who was unable to bring his action within six months from the date of Y’s birth, sought the reinstatement of that time ‑ limit (see paragraph 5 in fine above).

23 . The Court notes that the domestic law allows for the reinstatement of a time-limit provided that the claimant provides compelling reasons for his or her inability to act within the prescribed time (see paragraph 11 above).

24 . The applicant, however, was unable to demonstrate the existence of such compelling reasons (see paragraph 6 above). Moreover, although according to his own submission, he came into possession of medical evidence to support his suspicions in February 2013 (see paragraph 7 above), he did not seek reinstatement within the one ‑ month time-limit set forth by law (see paragraph 8 in fine above).

25. Bearing in mind that it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in the field of acceptable limitations to the right of access to court (see Lupeni Greek Catholic Parish and Others , cited above, § 89), the Court considers that the one-month time ‑ limit for seeking reinstatement was not unreasonably short and that it would have been feasible for the applicant to comply with the domestic rules instituted to that effect.

26. In the light of the particular circumstances of the case (see, mutatis mutandis, Waite and Kennedy v. Germany [GC], no. 26083/94, § 64, ECHR 1999-I), the Court concludes that the interference complained of has not impaired the essence of the applicant’s right to a court (see paragraph 20 above). Consequently, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

27. The applicant complained that he had been unable to disavow his paternity of Y in court. He relied on Article 8, which 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.”

28. The Government pointed out that, although the applicant had submitted that he had already started having doubts about the paternity of the child during the divorce proceedings in 2009-10, he had waited until 2013 to bring his action, thus disregarding the time-limit set by law to that effect. The applicant had thus failed to make proper use of the mechanism put at his disposal by law to disavow his paternity of Y.

29. The applicant argued that the six-month time-limit should be calculated from the date when he had become aware of the existence of circumstances capable of casting a doubt on his paternity, hence from February 2013.

30. The Court observes that the Government’s submissions pertain to an objection of non-exhaustion of domestic remedies. In that connection, it refers to the well-established principles set out in its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83‑89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

31. In particular, the Court reiterates that States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Gherghina , cited above, § 84, with further references).

32. Turning to the facts of the present case, the Court notes that it has already found that the domestic law allowed the applicant the opportunity to seek the reinstatement of the time-limit for bringing an action for the disavowal of his paternity (see paragraphs 22-23 above). However, he failed to avail himself of this opportunity within the time-limit prescribed by law (see paragraph 24 above). Because of this failure, he lost the opportunity, provided to him by law, to have his claim of disavowal examined on the merits by a court.

33. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 November 2021.

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Ilse Freiwirth Gabriele Kucsko-Stadlmayer Deputy Registrar President