Communicated on 13 October 2014

FOURTH SECTION

Application no. 15005/11 Marian KOCH against Poland lodged on 1 March 2011

STATEMENT OF FACTS

The applicant, Mr Marian Koch, is a P olish national, who was born in 1961 and lives in Tuchola .

A. The circumstances of the case

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

On 27 August 1983 the applicant married B.

On 12 August 1992 the applicant ’ s wife gave birth to a girl K.

The applicant submits that in 2004 he began having doubts as regards his paternity of K and requested the Tuchola District Prosecutor ( Prokurator Rejonowy ) to institute civil proceedings by which he could deny it.

On 25 August 2004 the District Prosecutor replied stating briefly that she had not found any grounds to bring proceedings denying the applicant ’ s paternity in particular as the mother refused to consent to K undergoing a blood test.

On 8 November 2004 the Bydgoszcz Regional Prosecutor confirmed that there had been not enough grounds to file a claim for denial of paternity on the applicant ’ s behalf.

On 7 January 2005 the Bydgoszcz Regional Court ( Sad Okr Ä™ gowy ) gave a divorce decree.

In August 2009 the applicant obtained hair samples from B and K without their consent. Subsequently, a DNA test done by a private laboratory confirmed that the applicant was not K. ’ s father.

On 16 October 2009 the applicant again requested the Olsztyn District Prosecutor to institute civil proceedings by which he could deny his paternity of K.

On 3 March 2010 the District Prosecutor informed the applicant that she had not found any grounds to bring proceedings denying the applicant ’ s paternity. The prosecutor referred to the fact that the applicant obtained hair samples from B and K without their consent. In addition, K testified that she had been raised by the applicant and had always treated him as her father. Consequently, the prosecutor considered that lodging a claim for denial of paternity was not in K ’ s best interest. Lastly, the prosecutor stressed that K might herself bring proceedings for denial of paternity of the applicant within three years of reaching the age of majority (12 August 2010).

The applicant asked for explanation.

On 29 November 2010 the Olsztyn District Prosecutor informed the applicant that he had failed to indicate any new circumstances to justify institution of civil proceedings for denial of paternity.

B. Relevant domestic law and practice

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

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

(...)

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

In accordance with Article 63 it is possible to bring an action denying paternity:

“The mother ’ s husband may bring a legal action for the denial of paternity within six months from 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, according to Article 70 § 1 of the Code a child may deny paternity of a husband of his/her mother within three years of reaching the age of majority.

Finally, under Article 86 of the 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 interest or protection of the public interest.

COMPLAINTS

The applicant complains under Article 6 of the Convention about lack of access to a court to challenge his paternity. He further alleges a breach of Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the prosecutor ’ s refusal to lodge an application for disavowal of paternity, despite the existence of DNA evidence to the contrary, amount to a violation of the applicant ’ s rights as guaranteed by Article 8 of the Convention? (Reference is made to the cases of Paulik v. Slovakia , no. 10699/05, 10 October 2006; Darmon v. Poland ( dec ), no. 7802/05, 17 November 2009.)

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”, as secured by Article 6 § 1, respected?