Communicated on 14 September 2016

FOURTH SECTION

Application no. 48493/11 Zenon BÄ„KOWSKI against Poland lodged on 25 July 2011

STATEMENT OF FACTS

The applicant, Mr Zenon Bąkowski , is a Polish national who was born in 1953 and lives in Gliwice. He is represented before the Court by Mr P. Kudełko , a lawyer practising in Ruda Śląska .

A. The circumstances of the case

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

On 20 June 2003 E.B., with whom the applicant was in a relationship but to whom he was not married, gave birth to a daughter, M.

On 3 June 2004 the applicant acknowledged paternity of M. at the Gliwice Registry Office ( Urząd Stanu Cywilnego ). In accordance with Article 77 § 1 of the Family and Custody Code, E.B. gave her consent to the applicant ’ s acknowledgment of paternity.

Subsequently, on an unknown date the couple separated and E.B. informed the applicant that he was not the father of M. In 2008 the applicant conducted a DNA test in a private laboratory on the basis of his and M. ’ s saliva samples. The results of the DNA test, received by the applicant on 21 January 2008, confirmed that he was not M. ’ s father.

As the applicant could not personally initiate civil proceedings for denial of paternity , as a result of the expiry of the time-limit specified in Article 80 § 1 of the Family and Custody Code, on an unknown date in 2008 he asked the Gliwice District Prosecutor to file a claim in his name.

On 6 March 2008 the prosecutor replied, stating briefly that the DNA test results submitted by the applicant were not reliable, and she could not file an application for the annulment of his recognition of paternity on his behalf. She further instructed the applicant that, according to the relevant legal procedures, in order to obtain valid proof, he should undergo a DNA test at the Forensic Medicine Department of Silesia Medical University.

On 15 April 2008 the Gliwice District Prosecutor, in reply to the applicant ’ s request, informed him that there were not enough grounds to file a claim for denial of paternity on his behalf. The prosecutor relied on the fact that E.B. had confirmed that the applicant was M. ’ s father. E.M. had further refused to consent to M. and herself undergoing a blood test. The prosecutor observed that the applicant could make an application to the Family Court under Article 97 § 2 of the Family Code, asking it to order the mother to undergo a blood test. However, she stated that, even if the court allowed the applicant ’ s request, there was no legal mechanism to enforce such a decision. The prosecutor further suggested that the only way for the applicant to obtain a relevant blood test result would be to come to an agreement with E.B. She concluded that the issue of whether or not a claim for denial of paternity could be filed would only be examined again upon receiving the results of a DNA test from a forensic laboratory (from Silesia University or a similar institution).

Subsequently, on 21 May 2009 the applicant lodged an application with the Gliwice District Court under Article 97 § 2 of the Family Code, asking the court to compel E.B. to agree to M. and herself undergoing blood tests in order to determine whether the applicant was M. ’ s father.

On 25 November 2010 the Gliwice District Court dismissed his application. The court held that there was not enough evidence to question the applicant ’ s paternity of M. It further held that the DNA test of 21 January 2010 was not reliable. Since the child ’ s mother had confirmed that the applicant was the child ’ s father, and there was no evidence that another person could be the child ’ s father, the mother ’ s refusal to undergo a blood test could not be considered as against the child ’ s best interests .

On 10 March 2011 the Gliwice Regional Court dismissed an appeal by the applicant. The court relied on the reasons given by the District Court. Lastly, it held that there was no other evidence which would suggest that the applicant was not M. ’ s father.

The applicant has no legal possibility of challenging his paternity of M.

B. Relevant domestic law and practice

1. The 1964 Family and Custody Code

Article 72 of the Family and Custody Code reads:

“If there is no legal presumption in operation that the mother ’ s husband is the father of her child, or if such presumption has been rebutted, the paternity of the child may be established by the recognition of paternity by the father, or by a decision of a court.”

In accordance with Article 77 of the Code, the recognition of paternity in respect of a minor child requires the consent of the mother.

Under Article 80 § 1 of the Code (as applicable at the material time), a man who had recognised his paternity of a child could seek annulment of the recognition of paternity within one year of the date of recognition, on the ground that he had made a defective declaration of will.

Pursuant to Article 81 § 1 of the Code, a child whose paternity has been recognised before his or her reaching the age of majority can seek annulment of the recognition if the man who has recognised him or her is not his or her father. Paragraph 2 of this Article stipulates that a child may lodge such a claim upon reaching the age of majority, and no later than three years after that date.

Under Article 86 of the Code, the recognition of paternity may be challenged by a prosecutor at any time, as long as the child is alive.

2. Amendments of 13 June 2009

The Family and Custody Code was a mended with effect from 13 June 2009. The new Article 78 provides that a man who has recognised his paternity of a child may challenge this recognition within six months of learning that he is not the biological father of the child. The rationale behind this amendment was that biological reality should be given a more prominent place in establishing who a child ’ s parents were.

COMPLAINT

The applicant complains under Article 8 of the Convention that he has no possibility of challenging his paternity of M., particularly as the prosecutor requires him to obtain relevant DNA evidence from a forensic laboratory, and the mother refuses to consent to M. undergoing a blood test.

QUESTION TO THE PARTIES

Did the prosecutor ’ s refusal to lodge an application for denial of paternity amount to a violation of the applicant ’ s rights as guaranteed by Article 8 of the Convention? (Reference is made to the cases of A.L. v. Poland , no. 28609/08 , 18 February 2014, and Darmoń v. Poland ( dec ), no. 7802/05, 17 November 2009.)