-> RESOLUTION DH (98) 148

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 27 OCTOBER 1994 IN THE CASE OF KROON AND OTHERS AGAINST THE NETHERLANDS

(Adopted by the Committee of Ministers on 11 June 1998 at the 633rd meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human Rights in the case of Kroon and others case delivered on 27 October 1994 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 18535/91) against the Netherlands, lodged with the European Commission of Human Rights on 15 May 1991, under Article 25 of the Convention by Ms Catharina Kroon, Mr Ali Zerrouk and Mr Samir M'Hallem-Driss, Dutch nationals, and that the Commission declared admissible the complaint according to which the two first applicants, the mother and the biological father of the third applicant, were unable under Dutch legislation to obtain recognition of the second applicant's paternity of the third applicant as regards the presomption of paternity existing under Dutch legislation in favour of the husband of the mother at the time of registration of the birth; and the complaint according to which a married man might deny the paternity of a child born in wedlock while it was not open to a married woman to do so;

Recalling that the case was brought before the Court by the Commission on 3 July 1993;

Whereas in its judgment of 27 October 1994, the Court

- held, by eight votes to one, that Article 8 of the Convention was applicable;

- - held, by seven votes to two, that there had been a violation of Article 8 of the Convention;

- - held, unanimously, that no separate issue arose under Article 14 of the Convention in conjunction with Article 8 of the Convention;

- - held, unanimously, that the finding of the violation constituted, in itself, sufficient just satisfaction as regards non-pecuniary damage;

- - held, by eight votes to one, that the Government of the Netherlands was to pay to the applicants, within three months, in respect of costs and expenses, 20 000 Netherlands guilders less 13 855,85 French francs to be converted into Netherlands guilders in accordance with the rate of exchange applicable on the date of delivery of the judgment, plus any value-added tax that may be payable on the resulting figure;

- - dismissed, unanimously, the remainder of the claim for just satisfaction;

Having regard to the rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 27 October 1994, having regard to the Netherlands's obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 27 November 1994, within the time-limit set, the government of the respondent State paid the applicants the sum provided for in the judgment of 27 October 1994,

Declares, after having taken note of the information supplied by the Government of the Netherlands, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 148

Information provided by the Government of the Netherlands

during the examination of the Kroon and others case

by the Committee of Ministers

Following the judgment of the European Court of Human Rights in the present case, the 11th title of the first book of the Dutch Civil Code concerning the right of parentage was modified through the Law of 24 December 1997 which entered into force on 1 April 1998.

The presumption of paternity remains in favour of the husband of the mother under the 24 December 1997 Law. However, under Article 200 of the Law the "father", the mother and the child can institute proceedings in order to contest the "father's" paternity on the ground that he is not the biological father of the child. This can be done by the "father": within one year he becomes aware that he is not the biological father; by the mother: within one year from the child's birth, and by the child: within three years he/she becomes aware that the "father" is not the biological father or, if he/she became aware of this while he/she was not of legal age, within three years after he/she came of legal age.

The biological father's paternity can then either be established with his acknowledgement (Section 2 of the new law) or by instituting judicial proceedings (Sections 3 of the new law).

A biological father who wishes to acknowledge a child must have the mother's consent if the child is younger than 16 or the consent of the child who is 12 years or older. The mother's and the child's consent can though be replaced by a court's consent, in proceedings instituted by the biological father, provided that this will not disturb the relationship between the mother and the child and will not be against their interests.

A biological father's paternity can be established through the courts on application by the child if it is 16 years or older or by the mother if the child is younger.