Resolution CM/ ResDH (2010)43 [1]

Execution of the judgment of the European Court of Human Rights

Phinikaridou against Cyprus

(Application No. 23890/02, judgment of 20/12/2007, final on 20/03/2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicant ’ s right to respect for private life following the application of a rigid legislative time-limit by the Supreme Court in 2001, which deprived her of the possibility of obtaining judicial determination of paternity (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)43

Information on the measures taken to comply with the judgment in the case of

Phinikaridou against Cyprus

Introductory case summary

This case concerns a violation of the applicant ’ s right to respect for private life following the application of a rigid legislative time-limit by the Supreme Court in 2001, which deprived her of the possibility of obtaining judicial determination of paternity (violation of Article 8).

The applicant, who was born in 1945, was told the name of her alleged biological father in 1997 by her mother. On 24/06/1999 the applicant lodged an application with the Nicosia Family Court requesting judicial recognition of paternity on the basis of section 20(2) of the Children (Relatives and Legal Status) Law 1991. The alleged father maintained that the applicant ’ s claim was time-barred under section 22(3) of the Law, which only permitted claims made within three years of attaining majority. Under section 25(1), persons such as the applicant, who had attained majority after the law was passed in 1991, were permitted three years from the date of the introduction of the Law to claim paternity. However, this still had the effect of excluding the applicant ’ s claim as she was not able to bring proceedings until she was made aware of the identity of her alleged father. The applicant claimed that sections 22(3) and 25(1) were unconstitutional, and in particular were contrary to Article 15 §1 of the Constitution, which guarantees the right to respect for private and family life. On 23/11/2010, following referral of the issue, the Supreme Court held that sections 22(3) and 25(1) complied with the Constitution and the European Convention. Following the Supreme Court ’ s judgment, the applicant withdrew her application before the Nicosia Family Court.

The European Court noted that the absolute nature of the three-year time-limit, as upheld by the Supreme Court, did not take into account the material facts and social reality of contested paternity cases. As a result, the applicant was deprived of the possibility of obtaining judicial determination of paternity, even though she had had no realistic opportunity to go to court at an earlier stage. The European Court considered that the application of a rigid time-limit in paternity proceedings, regardless of the circumstances of an individual case and, in particular, the knowledge of the facts concerning paternity, impairs the very essence of the right to respect for private life. It therefore concluded that a fair balance had not been struck between the different interests involved and that the interference was not proportionate to the legitimate aims pursued.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

6 000 EUR

2 ,496.41 EUR

8, 496.41 EUR

Paid on 07/02/2008

b) Individual measures

Following the legislative reform (see general measures below) the applicant is able to bring new proceedings to establish paternity. The Court awarded the applicant just satisfaction in respect of the non-pecuniary damage suffered.

II. General measures

1) Legislative changes : Following the judgment of the European Court, sections 22(3) and 25(1) of the Children (Relatives and Legal Status) Law 1991 have been amended by Law 69(I)/08, which came into force on 25/07/2008. The Law as amended now provides a three-year time-limit starting from the date on which the person concerned can establish that they first became aware of information enabling him or her to identify their putative father. It is for the claimant to satisfy the domestic court that, despite efforts to inquire into his or her paternity, which were reasonable in the circumstances, it had not been possible to discover such information earlier. Where the person concerned first became aware of such facts before the 2008 amendments, the time-limit commences from the date on which the amendments came into force. Furthermore, the dismissal or withdrawal of previous paternity proceedings as time-barred cannot be a ground for the dismissal of any new paternity proceedings brought after the 2008 amendments.

2) Publication and dissemination : Under cover of an explanatory letter from the Human Rights Sector of the Attorney Generals ’ Office, copies of the judgment were sent to the Supreme Court, the Ministry of Justice and Public Order, the Presidents of the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. The judgment has been published in English and Greek on the human rights section of the government legal service website. The Greek translation has also been published online by the Cyprus Bar Association and in the Cyprus Law Journal [third issue of 2008].

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Cyprus have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies