Communicated on 13 December 2016

FOURTH SECTION

Application no. 4936/11 Piotr CHMIELEWSKI against Poland lodged on 21 December 2010

STATEMENT OF FACTS

The applicant, Mr Piotr Chmielewski , is a Polish national who was born in 1980 and lives in Legionowo .

A. The circumstances of the case

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

On 25 December 2000 the applicant married K. They had two daughters: O., born on 13 January 2001, and E., born on 13 June 2006.

In 2008 the applicant found out that K. had been unfaithful and that he was not O. or E. ’ s father. On an unknown date K. instituted divorce proceedings.

On 29 April 2008 K. made a request to the Legionowo District Prosecutor to bring an action in her name to deny the applicant ’ s paternity of E. She stated that the applicant was not the father of her daughters. She submitted that E. ’ s father was a certain P.H. She did not know who O. ’ s father was as she had become pregnant after being raped during a stay in the Netherlands.

DNA tests carried out during the proceedings showed that the applicant was not the biological father of either girl.

On 24 June 2008 the Legionowo District Prosecutor filed a statement of claim with the Legionowo District Court to deny the applicant ’ s paternity of the younger girl - E.

On 10 March 2009 the Legionowo District Court gave judgment and declared that the applicant was not E. ’ s father.

On the same date the applicant requested that the Legionowo District Prosecutor bring an action in his name to deny his paternity of O.

On 11 March 2009 the Legionowo District Prosecutor refused his request, basing his decision on the best interests of the child. The prosecutor noted that although the DNA test had indeed confirmed that the applicant was not O. ’ s father, the fact that it had not been possible to establish who the real father was meant that bringing such an action was not in the child ’ s best interests.

On 22 June 2009 the applicant sent a letter to the Legionowo District Prosecutor informing him that a certain K.M. was O. ’ s father. However, K.M. denied being O. ’ s father when questioned by the prosecutor.

On 31 August 2009 the Legionowo District Prosecutor refused to bring an action in the applicant ’ s name. The prosecutor again noted that DNA evidence excluded the applicant ’ s paternity of O. but that since it was not possible to establish who the child ’ s real father was, such an action was not in the child ’ s best interests.

On 28 October 2009 the applicant requested that the Warsaw Regional Prosecutor bring an action in his name for denial of his paternity of O. He relied on Article 8 of the Convention and referred extensively to the Court ’ s case-law.

On 4 December 2009 the Warsaw Regional Prosecutor replied that there were no grounds to bring proceedings to deny the applicant ’ s paternity. The prosecutor noted in particular that the applicant had married K. when she had been already pregnant with O. and that after the child ’ s birth he had participated in O. ’ s upbringing for at least seven years. In addition, he had known of K. ’ s stay in the Netherlands. Moreover, it appeared from K. ’ s submissions that the applicant had been aware before the marriage that he had not been O. ’ s father.

On 27 January 2010 the applicant lodged an appeal and asked the Warsaw Appellate Prosecutor to reconsider his request to bring proceedings for denial of paternity on his behalf.

On 9 July 2010 the Warsaw Appellate Prosecutor again rejected his request. The prosecutor considered that bearing in mind the best interests of the child there were no grounds to bring proceedings to deny the applicant ’ s paternity. It was also noted that the applicant had failed to demonstrate that the rule of law required the denial of his paternity. Furthermore, the best interests of the child also meant that a denial of paternity was not possible if the child had not been recognised by another man. In the case at hand the applicant had failed to establish beyond any doubt who was O. ’ s real father.

On 22 September 2010 the Warsaw Regional Court ( S ą d Okręgowy ) issued a divorce decree and declared that K. was at fault for the breakdown of the marriage. It further awarded the custody of O. to the mother and deprived the applicant of his parental authority over O. The applicant was also ordered to pay maintenance of 200 Polish zlotys per month to K., in respect of O ’ s upbringing.

B. Relevant domestic law and practice

Article 62 §§ 1 and 3 of the 1964 Family and Custody Code ( Kodeks Rodzinny i Opiekunczy – “the Family Code”) provides, in so far as relevant:

“1. If a child was born during a marriage, or within three hundred days of its termination or annulment, it shall be presumed that he or she is the child of the mother ’ s husband. This presumption shall not apply if the child was born more than three hundred days after a judicial separation.

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3. This presumption may only be rebutted as the result of an action for the denial of paternity.”

In accordance with Article 63 of the Family Code, it is possible to bring an action to deny paternity:

“The mother ’ s husband may bring a legal action for denial of paternity within six months of when he learned of the birth of the child by his wife, but no later than when the child reaches the age of majority.”

Similarly, in accordance with Article 70 § 1 of the Family Code, a child may deny the paternity of a husband of his or her mother within three years of reaching the age of majority.

Finally, under Article 86 of the Family Code, as amended with effect from 13 June 2009, paternity may at any time (as long as the child is alive) be challenged by a prosecutor for reasons of the child ’ s best interests or the protection of the interests of the public.

COMPLAINT

The applicant complains invoking Articles 6 and 8 of the Convention that he has no possible means of challenging his paternity of O.

QUESTIONS TO THE PARTIES

1. Did the prosecutor ’ s refusal to bring an action for denial of paternity amount to a violation of the applicant ’ s rights as guaranteed by Article 8 of the Convention? (Reference is made, mutatis mutandis , to the cases of A.L. v. Poland , no. 28609/08 , 18 February 2014; DarmoÅ„ v. Poland ( dec ), no. 7802/05, 17 November 2009; Mizzi v. Malta , no. 26111/02, §§ 108-115, ECHR 2006 ‑ I (extracts) and Paulík v. Slovakia , no. 10699/05, §§ 41-47, ECHR 2006 ‑ XI (extracts))

2. Do the circumstances of the applicant ’ s case also disclose a failure by the authorities to secure a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was his right of “access to a court” respected as regards his action for denial of paternity ?