Communicated on 15 September 2014

FOURTH SECTION

Application no. 28124/10 Dariusz DÄ„BROWSKI against Poland lodged on 17 May 2010

STATEMENT OF FACTS

The applicant, Mr Dariusz Dąbrowski, is a Polish national, who was born in 1973 and lives in Jastrzębie Zdrój.

A. The circumstances of the case

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

On an unknown date the applicant married P.

On 21 June 2003 the applicant ’ s wife gave birth to a girl W.

The applicant submits that in 2005 his wife informed him that he was not W. ’ s father.

On 29 January 2006 a DNA test confirmed that the applicant was not W. ’ s father.

On 8 January 2008 the Gliwice Regional Court ( Sad Okregowy ) gave a divorce decree and ordered the applicant to pay maintenance to W.

On 23 July 2009 the applicant requested the Jastrzębie District Prosecutor ( Prokurator Rejonowy ) to institute civil proceedings by which he could deny his paternity of W.

On 25 August 2009 the District Prosecutor sent him a letter stating briefly that she had not found any grounds to bring proceedings denying the applicant ’ s paternity. That refusal did not contain any reasoning.

The applicant contested this decision and asked for explanation.

On 8 February 2010 the Jastrzębie District Prosecutor informed the applicant that despite obtaining evidence, in particular witness testimonies and the case file of the applicant ’ s divorce proceedings, and in view of the child ’ s best interest, she had not found sufficient grounds to initiate civil proceedings by which the applicant could deny his 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 Articl e 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 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.

COMPLAINT

The applicant complains without invoking any provisions of the Convention that he did not have a possibility to challenge his paternity, in particular, as the prosecutor ’ s refusal to institute proceedings for denial of paternity did not contain any reasons.

QUESTIONS

1. Did the prosecutor ’ s refusal to lodge an application for disavowal of paternity, despite the existence of DNA eviden ce 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?