Communicated on 20 March 2017

FOURTH SECTION

Application no. 950/17 M.T . against Ukraine lodged on 20 December 2016

STATEMENT OF FACTS

The applicant is a US national.

A. The circumstances of the case

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

In 2005 the applicant lived in Kyiv . At that time he entered into relations with a married woman living in the same city . In 2006 the woman gave birth to a child. Her husband was indicated as the father in the child ’ s birth certificate. In 2007 a DNA test was performed proving that the applicant was in fact the father of the child. The applicant was not prevented from having access to the child by the mother, who accepted financial support from him on a monthly basis. In 2011 the applicant wrote a will bequeathing all his property to the child.

The applicant had regular contact with the child until 2015 when the mother decided to marry a German national and move with the child to Germany. As the applicant opposed this move, the mother denied him access to the child and prevented him from exercising his parental rights.

In June 2015 the applicant initiated proceedings before the Darnytskyy District Court of Kyiv (“the District Court”) seeking recognition of his paternity and to have the child ’ s birth certificate amended accordingly.

During the hearing the mother of the child admitted that the applicant had provided regular financial support and had taken part in the upbringing and education of the child. However, she submitted that the applicant ’ s claims had to be dismissed as time-barred under Article 129 § 2 of the Family Code, which provided a one-year time-limit for such claims.

On 17 November 2015 the District Court allowed the applicant ’ s claims, declaring him the father of the child and ordering the relevant authority to amend the child ’ s birth certificate. The District Court considered that the applicant had missed the time-limit for valid reasons. It took into account the applicant ’ s argument that he had not wished to disturb the mother and her family and cause any harm to the child by his lawsuit during the long period when the mother had in fact assisted him in having access to the child.

On 3 February 2016 the Kyiv Court of Appeal overturned the District Court ’ s decision and dismissed the applicant ’ s claim as time-barred. The appellate court stated that Article 129 § 2 of the Family Code provided a one-year time-limit, which had started to run from the moment when the applicant had found out or should have found out about his paternity. The applicant had become aware of his paternity in 2007 when the DNA test had been performed; however he had applied to the court in 2015, which had been too late.

On 13 July 2016 the Higher Specialised Civil and Criminal Court dismissed the applicant ’ s appeal on points of law.

B. Relevant domestic law

1. Family Code of 10 January 2002

According to Article 129 § 1 of the Family Code, an individual, who considers that he has fathered a child with a woman who is married to another man, is entitled to submit a claim against the woman ’ s husband to have his paternity recognised, provided that the latter has been registered as the child ’ s father.

Article 129 § 2 of the Family Code provides that the limitation period of one year applies to the claims for establishing paternity of a child and starts to run from the day when the claimant found out or should have found out about his paternity.

2. Civil Code of 16 January 2003

Article 267 § 5 of the Civil Code provides that if a court finds that the limitation period has been missed for a valid reason, the right violated should be subject to protection.

COMPLAINT

The applicant complains under Articles 6 and 8 of the Convention that he could not establish his paternity of the child owing to the dismissal of his claim as time-barred.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

2. Was the applicant ’ s right of access to a court respected in the present case? Did he have a fair hearing in the domestic proceedings as required by Article 6 § 1 of the Convention?