Communicated on 22 June 2017

FIRST SECTION

Applicati on no. 58370/13 Jerzy HYCKI against Poland lodged on 22 August 2013

STATEMENT OF FACTS

The applicant, Mr Jerzy Hycki , is a Polish national who was born in 1943 and lives in Zamość.

A. The circumstances of the case

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

1. Before 1 May 1993

In 1973 Ms M.S. had sexual contact with the applicant. They were not married. On 18 December she gave birth to a son, A.

As the applicant denied being A. ’ s father, Ms M.S. initiated proceedings before the Zamo ść District Court for a judicial determinati on of his paternity.

On 3 December 1974 the Zamo ść District Court declared that the applicant was A. ’ s father and ordered him to pay monthly maintenance. The court took its decisi on after hearing several witnesses and analysing the results of a blood test and a report by an expert in gynaecology . It was established that the applicant had had sexual intercourse with Ms M.S. in March 1973, that is to say, between 180 and 300 days before A. ’ s birth. In such cases, pursuant to Article 85 § 1 of the Family and Custody Code, a man ’ s paternity was presumed, unless there were important reasons excluding it. No such reasons were provided by the applicant or otherwise.

The applicant appealed. On 16 October 1975 the Lublin Regional Court dismissed his appeal and the judgment became final and binding. The applicant complied with the order requiring him to pay maintenance.

2. After 1 May 1993

In 2011 the applicant obtained a private expert report concerning his paternity. On the basis of a DN A test, the report concluded that the applicant could not be A. ’ s father.

(a) Proceedings for reopening

On 19 September 2012 the applicant sought to challenge his paternity by applying to reopen the proceedings on the basis of the DN A test results. He maintained that he was not A. ’ s biological father. His paternity had been determined in a final court judgment on the basis of expert evidence corresponding to the state of science at the time.

On 5 October 2012 the Zamo ść Regional Court rejected his application. It held that, pursuant to Article 408 of the Code of Civil Procedure, an applicati on to reopen proceedings had to be lodged within five years of the date of a final judgment, unless the party could not act in the proceedings or had not been properly represented. In the applicant ’ s case, that time-limit had expired in 1980.

The applicant lodged an interlocutory appeal, which was dismissed on 7 March 2013 by the Supreme Court.

(b) Request for instituti on of proceedings by the prosecuti on services

On 27 June 2017 the applicant requested the Zamo ść District Prosecutor to file a claim for denial of paternity on his behalf. He based his request on Article 189 of the Code of Civil Procedure together with Article 86 of the Family and Custody Code.

In a letter of 12 September 2014 the Zamo ść District Prosecutor informed the applicant that his paternity had already been determined by a court and was therefore considered to be res iudicata . Consequently, even the prosecuti on services were unable to have the matter reviewed by a court.

On 17 February 2015 the Zamo ść Regional Prosecutor agreed with the District Prosecutor ’ s findings, holding that Article 189 of the Code of Civil Procedure defined the situations in which a pers on could seek a declarati on of rights or the existence of a legal relationship. In the present case the applicant had no legal interest in obtaining a judgment as the final judgment had already been given in his case and was binding.

B. Relevant domestic law

1. Family and Custody Code

Under Article 72 of the Family and Custody Code, if there is no legal presumpti on indicating that the mother ’ s husband is the father of her child, or if that presumpti on has been rebutted, the paternity of the child may be established by an applicati on for recogniti on of paternity by the father, or by the decisi on of a court.

Under Article 80, once a child reaches the age of majority, no applicati on to annul recogniti on of paternity may be brought by the mother of the child or the man whose paternity has been recognised .

Under Article 86, a prosecutor may also initiate proceedings to establish or deny paternity or annul recogniti on of paternity if this is necessary for the child ’ s welfare or the protecti on of the public. Proceedings to establish paternity or to annul recogniti on of paternity cannot be brought after the death of a child.

2. Code of Civil Procedure

Pursuant to Article 408 of the Code of Civil Procedure, an applicati on to reopen proceedings must be lodged within five years of the date of the final judgment, unless the party could not act in the proceedings or was not properly represented.

Under Article 189, a plaintiff may request a declaratory judgment ( pow ó dztwo o ustalenie ) proving his capacity to pursue a particular claim and his legal interest in obtaining a judgment declaring a particular right.

COMPLAINTS

The applicant complains, under Article 6 § 1 of the Convention, that he had no access to a court for his claim that he is not A ’ s father. He also complains, under Article 8 of the Convention, that the respondent State failed to discharge its positive obligati on to secure him effective respect for his private and family life, in particular by not providing him any legal means for challenging his paternity.

QUESTIONS TO THE PARTIES

1. Does the applicant have access to a court enabling him to challenge his paternity in respect of A., as envisaged by Article 6 § 1 of the Convention?

2. Has there been a violati on of the applicant ’ s right to respect for his private and family life, contrary to Article 8 of the Conventi on (see Paulik v. Slovakia , no. 10699/05, §§ 41-41, 10 October 2006) ?