Communicated on 29 May 2020 Published on 15 June 2020

FOURTH SECTION

Application no. 9525/19 István VAGDALT against Hungary lodged on 6 February 2019

STATEMENT OF FACTS

The applicant, Mr István Vagdalt , is a Hungarian national, who was born in 1961 and lives in Répcelak .

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

2 . Between 2000 and 2005 the applicant had an extramarital relationship with E.R. During that time E.R. was married to Cs.H . On 27 September 2002 E.R. gave birth to a girl, C.

3 . C. was entered in the birth register as the daughter of E.R. and her husband, Cs.H ., pursuant to section 36 of Act no. IV of 1952 on Marriage, Family and Guardianship as in force at the material time (hereinafter “the old Family Act”). This provision laid down the legal presumption that a child born in wedlock is presumed to be fathered by the mother ’ s husband .

4 . The applicant had contact with C. until 2005, when the relationship between E.R. and the applicant terminated.

5 . Since under the law the applicant was not entitled to initiate proceedings in his own name, on 8 May 2006 he requested the Guardianship Authority to appoint a guardian ad litem for C. so that the guardian could file an action with a view to rebutting Cs.H. ’ s paternity.

6 . The applicant ’ s request was dismissed by the administrative authorities on the ground that C. ’ s family status was settled and it was not in the child ’ s best interest to rebut Cs.H. ’ s paternity.

7 . In the course of the judicial review proceedings, the Supreme Court reversed this decision and remitted the case to the Guardianship Authority.

8 . On 12 August 2008, in the resumed administrative proceedings, the second-instance Guardianship Authority appointed a guardian ad litem for C. with a view to initiating proceedings for the clarification of the child ’ s family status.

9 . Both Cs.H . and E.R. requested the judicial review of this decision. The applicant was allowed to join the proceedings as intervener on the side of the Guardianship Authority. The Supreme Court upheld the administrative decision on 26 January 2010.

10 . In parallel, on 2 December 2008 the guardian ad litem appointed by the Guardianship Authority lodged an action with the Sopron District Court seeking the rebuttal of Cs.H. ’ s paternity. The applicant participated in the proceedings as witness.

11 . On the basis of a DNA test proving that the applicant was the biological father of C., the Sopron District Court annulled Cs.H. ’ s paternity and ordered his deletion from the registry as C. ’ s father. The decision was upheld on appeal by the Győr - Moson -Sopron County Regional Court on 13 April 2011. Prompted by this judgment, the Sopron authority responsible for civil status matters deleted Cs.H . from the register of civil status as C. ’ s father.

12 . On 23 May 2011 the applicant made a declaration of paternity in respect of C. before the Sopron public notary. In the absence of the mother ’ s consent, the applicant was not registered as C. ’ s father in the register of civil status. Following the exclusion of the Sopron authorities for bias from the proceedings, the applicant reiterated his declaration before the Fertőd public notary, appointed for the proceedings, on 1 June 2011.

13 . On 3 June 2011 Cs.H . also made a declaration of paternity in respect of C. with the consent of E.R. Based on this document, on 7 July 2011 the registrar entered Cs.H . as C. ’ s father in the register again. Since none of these measures constituted an administrative decision, the applicant had no legal avenue to challenge them, and his complaints in this respect were dismissed. The applicant ’ s subsequent request to the Public Prosecutor ’ s Office to challenge the declaration of paternity was dismissed for lack of any appearance of abuse by the Győr - Moson -Sopron County Regional Public Prosecutor ’ s Office on 9 March 2016. On 9 May 2016 the applicant was informed by the Chief Prosecutor ’ s Office that there was no legal avenue to review this decision.

14 . On 13 May 2011 the applicant initiated administrative proceedings for the settlement of the child ’ s family status ( gyermek családi jogállásának rendezése iránti eljárás ).

15 . On 27 July 2011 the Zalaegerszeg Guardianship Authority discontinued the proceedings since the paternal position in respect of C. had already been clarified. The decision was upheld by the second-instance administr ative authority on 23 September 2011 and by the Zalaeg erszeg High Court on 13 January 2012. The applicant ’ s petition for review was dismissed by the Kúria without examination on the merits on the ground that no review lay against decisions concerning discontinuation.

16 . On 13 July 2011 the applicant lodged a criminal complaint with the Sopron Police Department alleging that Cs.H. ’ s declaration of paternity of 3 June 2011 (see paragraph 13 above) constituted forgery of public documents.

17 . The police discontinued the investigation finding that the impugned conduct did not constitute a criminal offence. It held that, according to the case-law, the registry had been not obliged to examine the facts surrounding the child ’ s origin. Consequently, the acknowledgement was valid even if it was obvious that the child had not originated from the declarant. On 9 March 2012 the Sopron District Public Prosecutor ’ s Office upheld the decision.

18 . On 8 May 2012 the Sopron District Public Prosecutor ’ s Office dismissed the applicant ’ s complaint concerning the alleged abuse of office by the registrar.

19 . On 4 November 2011 the applicant requested the Sopron County Guardianship Authority to enquire as to whether the modification of C. ’ family status was in the child ’ s best interest. The Zalaegerszeg Guardianship Authority, appointed for the proceedings, dismissed the request on 31 January 2012 stating that the child lived in a stable family environment and changing her family status would not be in her best interest; consequently, no proceedings were to be conducted in that regard. This decision was overturned by the second-instance authority, and the case was remitted to the first-instance.

20 . The Nagykanizsa Guardianship Authority, appointed for the resumed first-instance proceedings, found on 21 November 2012 that the proceedings would be in the child ’ s interest and appointed a guardian ad litem for C. The decision was upheld on appeal by the Zala County Guardianship Authority. The decision of the second-instance authority was quashed in the course of the judicial review proceedings on 18 September 2013 by the Zalaegerszeg Administrative and Labour Court, and the case was again remitted to the first-instance administrative authority.

21 . The applicant requested the review of the court decision before the Kúria . On 28 May 2014 the Kúria found for the applicant and upheld the second-instance administrative decision, finding that it was in the child ’ s best interest to clarify her origins and conduct proceedings in this regard.

22 . Based on the decision of the Kúria , on 18 August 2014 the Nagykanizsa Guardianship Authority appointed a guardian ad litem with a view to instituting proceedings for the annulment of Cs.H. ’ s paternity and the establishment of the applicant ’ s paternity.

23 . On 28 May 2015 the guardian ad litem instituted proceedings against the applicant with a view to establishing his paternity. The guardian did not institute proceedings against Cs. H. for challenging his paternity.

24 . On 24 July 2015 the Sárvár District Court declared the applicant as C. ’ s father. Following the appeal brought by E.R. in the quality of intervener, the Szombathely High Court overturned the first-instance decision. It dismissed the action and discontinued the proceedings finding that the paternal status had been filled on the basis of the declaration of pat ernity given by Cs.H . on 3 June 2011 (see paragraph 13 above). In response to the applicant ’ s arguments, the second instance court pointed out that – despite the clear mandate from the Guardianship Authority on 18 August 2014 (see paragraph 22 above) – the guardian ad litem had failed to initiate proceedings against Cs. H. for the annulment of his paternity, thus the question could not be examined in the proceedings before it. The Kúria upheld the decision on 27 January 2017. The Constitutional Court dismissed the applicant ’ s constitutional complaint on 25 September 2018.

25 . On 31 March 2017 the guardian ad litem instituted proceedings against Cs.H . for the annulment of the latter ’ s paternity. The applicant was not a party to these proceedings.

26 . On 14 February 2018 the Veszprém District Court dismissed the action as time-barred. It held that following the entry into force on 15 March 2014 of Act no. V of 2013 on the Civil Code (hereinafter “the new Civil Code”), repealing the old Family Act, the proceedings for the annulment of paternity could be lodged by a minor child either before the child reached the age of three years, or if the child gained knowledge of the reasons for challenging paternity subsequently, within one year following the date when the child learned about those facts. In the court ’ s view, the starting point of the one-year time-limit had been 18 August 2014 when the Guardianship Authority appointed the guardian ad litem (see paragraph 22 above) . T herefore the action of 31 March 2017 was time-barred. The court noted that the proceedings regarding the establishment of the applicant ’ s paternity had not interrupted the running of the one-year time-limit since they had had a different subject matter. The Veszprém High Court upheld this decision on 26 June 2018.

27 . In 2018 the applicant initiated civil proceedings against C. and E.R. for the establishment of his paternity status. At the date of the latest information available to the Court (6 February 2019), these proceedings were still pending.

28 . The relevant provisions of the old Family Act, as in force until 15 March 2014, provided as follows:

Chapter V

Family status – Relationship

Section 35

“(1) The man with whom the mother lived in wedlock from the time of conception of the child until the birth of the child, or at least during a part of this period, shall be considered the father of that child.

...”

Section 36

“If the mother was not married nor lived in a registered civil union between the beginning of the time of conception and the date when the child was born, the man shall be considered to be the father of the child

a) who made a declaration of paternity,

b) whom the court declared as a father by its final decision,

...”

Section 37

“...

(2) The man from whom the child originated may, from the date of the conception, acknowledge the child as his own by a declaration of full legal effect, if

a) no other man is to be regarded to be the father under the law and

b) the child is at least sixteen years younger than the person making the declaration who must have attained sixteen years of age.

...

(4) A declaration of paternity shall be construed fully enforceable with the consent of the mother and the child ’ s legal representative, and with the consent of the child if over the age of fourteen years.

...”

Section 38

“(1) If a child ’ s father cannot be identified based on the mother ’ s marriage or subsequent marriage, reproduction procedure or fully enforceable declaration of paternity, paternity may be established by way of judicial process.

...

(4) An action for establishing paternity by way of judicial process may be brought by the father, the child or by the child ’ s descendant after his/her death.”

Section 43

“...

(5) An action for rebutting the presumption of paternity may be brought by the child within a period of one year from the date when the child reached the age of majority. Other entitled parties may rebut the presumption of paternity within a one-year time-limit from the date when that person becomes aware of the birth. Where an entitled party gained knowledge of any fact justifying a challenge, he/she may challenge the presumption of paternity within a period of one year from the date when he/she learned of such fact.

...”

29 . The relevant provisions of the new Civil Code, entered into force on 15 March 2014, provide as follows:

Chapter X

Contested presumption of paternity

Section 4:111

“(1) An action for challenging the presumption of paternity may be brought by the minor child and the mother subject to the guardian authority ’ s consent, before the child reaches the age of three years. Other entitled parties may challenge the presumption of paternity within a period of one year from the date when presumption of paternity is established.

...

(4) Where an entitled party gained knowledge of any fact justifying a challenge only later, he/she may challenge the presumption of paternity within a period of one year from the date when he/she learned such fact.”

COMPLAINTS

The applicant complains under Articles 6 and 8 of the Convention that the domestic authorities infringed his right to respect for family life by failing to register him as the father of his daughter. He also complains that this right was violated by the overall length of the proceedings and the manner in which the decisions were taken.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his private and/or family life, contrary to Article 8 of the Convention, having regard, in particular, to the alleged lack of diligence of the domestic authorities in handling the proceedings concerning the paternity of C. (see Macready v. the Czech Republic , nos. 4824/06 and 15512/08 , § 41, 22 April 2010, and L.D. and P.K. v. Bulgaria , nos. 7949/11 and 45522/13, 8 December 2016 )?