Communicated on 15 September 2014

FOURTH SECTION

Application no. 6497/11 Eugeniusz SYPNIEWSKI against Poland lodged on 13 January 2011

STATEMENT OF FACTS

The applicant, Mr Eugeniusz Sypniewski , is a Polish national, who lives in Bydgoszcz . He is represented before the Court by Mrs E. G Å‚uszek - Manikowska , a lawyer practising in Bydgoszcz .

A. The circumstances of the case

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

On 27 January 1996 the applicant married J.

On 17 September 1996 the applicant ’ s wife gave birth to a boy J.D.

On 21 May 2004 the Regional Court ( Sąd Okre gowy ) dissolved the applicant ’ s marriage. It further held that J.D. ’ s place of residence was to be with the applicant.

Subsequently, the applicant learned that he was not J.D. ’ s father.

On 9 September 2009 the child moved to the mother.

On 10 September 2009 a DNA test confirmed that the applicant was not J.D. ’ s father.

On 20 October 2009 the applicant requested the Bydgoszcz District Prosecutor ( Prokurator Rejonowy ) to institute civil proceedings by which he could deny his paternity of J.D.

On 24 March 2010 the District Prosecutor replied that she had not found any grounds to bring proceedings denying the applicant ’ s paternity. The prosecutor stressed that the DNA examination was not carried out by a court appointed expert. In addition, the applicant himself had provided samples of material for testing. Lastly, the applicant ’ s former wife J. – denied having had sexual contact with other men and refused to agree to new DNA tests.

Meanwhile, the applicant ’ s former wife lodged a claim against the applicant for maintenance with the Bydgoszcz District Court.

The applicant contested the prosecutor ’ s decision and asked for explanation.

In reply, on 13 May 2010, the Bydgoszcz Regional Prosecutor repeated the reasons given by the District Prosecutor. She further referred to the child ’ s best interest.

On 24 August 2010 the applicant again asked the District Prosecutor to institute civil proceedings. He stressed that he had found a letter written by his former wife ’ s colleague, who had confirmed that J. had worked in an escort agency before she had met the applicant and that she had continued working there for some time after they had married. In addition, he referred to J. ’ s statement that she was responsible for the breakdown of their marriage due to her infidelity.

On 2 September 2010 the Bydgoszcz District Prosecutor briefly informed the applicant that she had not found any grounds to bring proceedings denying the applicant ’ s paternity

B. Relevant domestic law and practice

Article 62 of the 1964 Family and Custody Code ( Kodeks Rodzinny i Opiekuń czy – “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”

Finally, under Article 86 of the Code, as amended with the 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 the protection of the public interest.

COMPLAINT

The applicant complains under Article 6 of the Convention that he does not have a possibility to challenge his paternity. He further alleges in substance 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?