FOURTH SECTION

Application no. 15152/12 Ints VEISS against Latvia lodged on 2 October 2012

STATEMENT OF FACTS

The applicant, Mr Ints Veiss , is a Latvian national, who was born in 1965 and lives in RÄ«ga .

A. The circumstances of the case

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

Since the summer of 2005 the applicant lived together with A.Z. They were not married. In the course of that year A.Z. became pregnant. On 24 May 2006 A.E.Z. was born. After his birth the applicant continued to care for the child and to support A.Z. and the child financially, including paying the rent and utility fees for the apartment where they were residing.

On an unspecified date the applicant suggested to A.Z. that they officially register the birth of A.E.Z. and record the applicant ’ s paternity in the registry of births. A.Z. refused and explained that she was planning to record an Estonian citizen by the name H. as the child ’ s father, expecting that H. would die soon and the child would become the sole heir of his investment firm. It was then that the applicant found out that before the child had been born A.Z. had indicated to their family doctor that H. was the father.

The applicant objected and informed A.Z. that he would try to have his paternity established by a court.

Starting from 13 January 2007 A.Z. no longer permitted the applicant to meet the child.

On 15 January 2007 the applicant consulted a lawyer and on the same day requested a copy of a report of the registration of the child ’ s birth ( izziņa par bērna dzimšanas reģistrāciju ) from a civil registry office ( dzimtsarakstu nodaļa ). He received the requested report on 18 January 2007 and found out that a day before, on 17 January 2007, a certain A.L. had acknowledged his paternity and had been registered as the child ’ s father. According to the applicant, he did not know who A.L. was.

On 8 February 2007 the applicant submitted a claim to the Rīga City Zemgale District Court. In the claim the applicant indicated that “when childbirth was approaching, [A.Z.] started to avoid me and I found out about the birth of the child by asking around in hospitals”. The applicant submitted that he had financially supported the child after his birth and he, together with A.Z. and the child, had travelled, including outside Latvia . The claim went on to say that “for approximately one month, until 17 January 2007, I lived together with [A.Z.] at her residence, so that I could take care of the child at night time”. The applicant submitted that he was acquainted with A.L. but did not know his address, which he asked the court to find out from public records. The applicant also asked the court to order forensic biological testing in order to establish the child ’ s descent, to strike the record of A.L. as the father of the child and to record him, the applicant, as the child ’ s father.

On 4 April 2007 A.Z. and A.L. submitted a response, arguing that the fact that civil proceedings had been instituted had infringed their rights guaranteed by, inter alia , Article 8 of the Convention. The respondents also argued that the applicant lacked standing to contest paternity and denied that the applicant had ever co-habited with A.Z.

The Zemgale District Court held hearings on 28 June, 31 August and 12 September 2007. On 13 September 2007 it decided to discontinue the proceedings. The court agreed with the respondents that the applicant lacked standing to contest a voluntary acknowledgement of paternity. To reach that conclusion the court interpreted the Civil Law in conjunction with the Convention on the Legal Status of Children Born out of Wedlock (“the Legal Status Convention”) and the 11 October 2004 judgment of the Latvian Constitutional Law and found that the restrictions in section 156 of the Civil Law (see below) were not contrary to the Legal Status Convention.

After the applicant submitted an ancillary complaint, the Rīga Regional Court held hearings on 17 January and 22 September 2008 and quashed the lower court ’ s decision by a decision adopted on the latter date. It was found that the lower court had erred in not ordering forensic biological testing. The case was remitted to the Zemgale District Court.

The first hearing in the Zemgale District Court was held on 12 November 2008 and was attended only by the applicant ’ s lawyer. The hearing was adjourned. The verbatim record of the hearing reflects that the court decided to invite a representative of the Custody Court ( bāriņtiesa ) to the subsequent hearing.

According to the applicant ’ s lawyer the question of involving the Custody Court had not in fact been discussed in court and therefore she requested the removal of the judge in charge of the case.

During the hearing of 26 November 2008 the judge withdrew from the case. The proceedings were accordingly adjourned.

The next hearing was held on 26 January 2009 and was attended by the applicant ’ s lawyer, the two respondents and their lawyer as well as by a representative of the Custody Court . The representative of the Custody Court told the Zemgale District Court that the Custody Court had no objections to the proposal to order forensic biological testing.

On 4 February 2009 the Zemgale District Court ordered forensic genetic testing and ordered the applicant, A.Z., A.L. and the child to submit the necessary samples of genetic material before 31 March 2009.

On 1 April 2009 the court was informed that the applicant had submitted a tissue sample on 6 February 2009, while A.Z., A.L. and the child had not appeared at the testing laboratory.

On 8 April 2009 the applicant requested the court to order that the respondents and the child be delivered for genetic testing under constraint. The hearing organised on 26 May 2009 to decide that question was adjourned because the respondents and their lawyer had not appeared in court. During the hearing of 15 June 2009 the court rejected the applicant ’ s request on the grounds that the child was not a party to the case and therefore his delivery under constraint could not be ordered. No appeal lay against that decision.

On 26 June 2009 the applicant asked the Prosecutor General to lodge an extraordinary complaint ( protests ) about the decision of the Zemgale District Court. On 16 July 2009 the Prosecutor General granted the applicant ’ s request and asked the Senate of the Supreme Court to quash the 15 June 2009 decision.

On 13 January 2010 the Senate decided to uphold the Prosecutor General ’ s complaint, to quash the Zemgale District Court ’ s decision and to remit the case to another judge of that court.

After adjourning the hearing of 15 March 2010 due to the respondents ’ failure to appear at the court, on 16 March 2010 the Zemgale District Court decided to grant the applicant ’ s request and to order the Municipal police to deliver the respondents and the child for genetic testing under constraint.

On 10 May 2010 the applicant informed the court that it appeared that the decision of 16 March had not been sent to the Municipal police.

That omission was admitted by the court in a decision of 14 May 2010, by which the court decided to order the State police to deliver the respondents and the child for testing under constraint.

On 22 June 2010 the director of the testing laboratory informed the Zemgale District Court that a tissue sample had been taken from A.L. on 18 June 2010 but that A.Z. and the child had not appeared at the laboratory for testing.

According to a letter sent by the police to the court on 17 June 2010, on several occasions police officers had not found A.Z. and the child at their stated address and a neighbour had informed the police that a woman with a small child was not residing there.

On 5 July 2010 the applicant requested the Zemgale District Court to order a search ( izsludināt meklēšanā ) for A.Z. and the child.

By a decision of 20 July 2010 the court granted the applicant ’ s request.

On 17 September 2010 the applicant requested the Custody Court to find out the child ’ s place of residence and to check his health condition and living conditions.

On 14 October 2010 the Custody Court responded to the applicant, explaining that following a conversation with A.L. as well as a visit to A.Z. and the child ’ s residence (at the same address where the police had previously been unable to find them), which apparently had taken place on 12 October 2010, it had been established that the child was receiving everything that was necessary for adequate growth and development. The letter of the Custody Court also noted that on 8 October 2010 the child ’ s genetic sample had been taken at the testing laboratory.

On 13 October 2010 the testing laboratory issued a report, finding that the probability that the applicant was the father of A.E.Z. was 99.9999141 % and that it was impossible that the father was A.L.

The next hearing of the Zemgale District Court was held on 11 November 2010. In the course of the hearing a representative of the Custody Court , referring to the visit at the residence of A.Z. on 12 October 2010, informed the court that the child was “living in a family with [A.L.], whom he consider[ ed ] to be his father”. The Custody Court ’ s representative ’ s opinion was that upholding the applicant ’ s claim could result in an emotional trauma to the child.

On 25 November 2010 the Zemgale District Court adopted a judgment, by which it rejected the applicant ’ s claim. The court held that, even though the applicant was the child ’ s biological father, the Civil Law did not give him the right to contest a voluntary acknowledgement of paternity.

The applicant appealed on 15 December 2010 and the RÄ«ga Regional Court held a hearing on 16 May 2011. During the hearing a representative of the Custody Court reiterated that the child was living together with A.L. whom he considered to be his father. When asked to produce a written report on the visit of 12 October 2010, the representative said that she did not have it with her.

On 26 May 2011 the Regional Court adopted a judgment, by which it upheld the judgment of the lower court. It essentially reiterated the motivation used by the lower court. In response to the applicant ’ s complaint that the overall length of the proceedings was excessive within the meaning of Article 6 § 1 of the Convention the appeal court held that such questions were outside its competence.

On 11 July 2011 the applicant submitted an appeal on points of law. In it he inter alia complained that the time taken to examine his claim in the first-instance court had been excessive.

On 26 October 2011 the applicant asked the Senate to expedite the examination of the case, referring to Article 6 § 1 of the Convention and the urgent nature of cases relating to the interests of children.

The Senate of the Supreme Court held the first hearing on 7 March 2012. On 21 March 2012 the Senate decided to examine the case in an extended composition ( paplašinātā tiesas sastāvā ) of seven judges instead of the usual three-judge composition. The final decision was adopted by the Senate on 16 May 2012.

The Senate relied on Article 4 of the Legal Status Convention in conjunction with Article 8 of the Convention, in particular taking into account the interpretation of the latter provision by the European Court (in Anayo v. Germany , no. 20578/07 , 21 December 2010, and Schneider v. Germany , no. 17080/07 , 15 September 2011 ). The Senate did not doubt that the dispute before it concerned the applicant ’ s private and family life, and it had to decide therefore whether the interference with his rights had been necessary in a democratic society. The Senate disagreed with the lower level courts ’ interpretation of section 156 of the Law of Civil Procedure – it held that that section could not be interpreted so as to deny the standing of a biological father to contest a voluntary acknowledgement of paternity if the legal father has acknowledged paternity with the knowledge that he was not in fact the father of a child. On the other hand, having the standing to contest a voluntary acknowledgement of paternity did not mean that the claim should be automatically upheld, since courts had an obligation to balance the rights of the child and the rights of the biological father.

Turning to the facts of the specific case, the Senate noted that during the 16 May 2011 hearing of the appeal court the representative of the Custody Court had explained that during a visit to the child ’ s residence on 12 October 2010 it had been found that the child was living in a “united family” ( apvienotā ģimenē ) and that upholding the applicant ’ s claim would be contrary to the interests of the child. The Senate found no reason to doubt the professional competence of the staff of the Custody Court and agreed with its assessment of the interests of the child.

In conclusion, while the Senate held that the appeal court had erred in deciding that the applicant lacked standing to contest the acknowledgment of paternity, the Senate, “taking into account the unreasonable length of the proceedings”, found it possible not to remit the case to the appeal court. The judgment of the appeal court was thus upheld.

The applicant submits that after the decision in the civil case became final he learned of certain facts previously unknown to him. In particular, he found out that when the child was born and throughout the proceedings A.L. had been married to J.Z. and had five children in that marriage. In addition, from 2003 until March of 2012 A.L. had been living together with yet another woman (D.B.) and several of his children from his marriage to J.Z. The applicant submitted to the Court a written statement from D.B. to that effect.

On 27 June 2012 the applicant submitted a complaint about the actions of representatives of the Custody Court to the Children ’ s Rights Inspectorate ( Valsts bērnu tiesību aizsardzības inspekcija ). Among other things he complained that the visit that a representative of the Custody Court had carried out on 12 October 2010 had been superficial and the Custody Court had come to the unsubstantiated conclusion that A.L. was living together with A.Z. and the child, while in fact he had been living with another woman in a different town.

On 23 July 2012 the Inspectorate replied to the applicant, informing him that the Custody Court was responsible for omissions ( pieļāvusi trūkumus ), which could have had a negative effect on the performance of its duty to protect the rights and legal interests of children. In particular, the Inspectorate considered that the Custody Court had not used its mandate in order to establish objective and fact-based information about the family environment of the child. The Custody Court had been reminded of its duties and prompted to improve the quality of its work in the future. As for the applicant, the Inspectorate informed him of its opinion that it was possible for him to challenge the actions of a public authority (in this case the Custody Court ) before administrative courts.

B. Relevant domestic law

If a child is born out of wedlock, the paternity can be established by a voluntary acknowledgment of paternity by the father or by a decision of a court (section 154 of the Civil Law). The paternity can be acknowledged before or after the birth by submitting a joint request of both parents of the child (section 155). Legal paternity established by acknowledgment may only be contested in court if the legal father could not objectively be the child ’ s father and if the acknowledgment has been made as a result of mistake, deception or coercion. The standing to contest paternity established by a voluntary acknowledgement is granted, with certain restrictions, which are not relevant to the present case, to the child, the mother of the child and the legal father (section 156).

A court can establish paternity only in the absence of a valid voluntary acknowledgment of paternity (section 157). An action to establish paternity in court can be lodged by the child ’ s mother or guardian, the child himself after reaching the age of majority, as well as the person who considers himself to be the father of the child (section 158).

The procedure for determining paternity is set out in Chapter 30 of the Law of Civil Procedure. Section 247 of that law echoes the rules on standing to contest a voluntarily acknowledged paternity set down in section 156 of the Civil Law. Section 249 (2) of the Law of Civil Procedure provides that “a person from whom the child has descended may direct an action [to establish paternity] against the child ’ s mother if the mother does not agree to have the paternity determined or if there are other legal obstacles to record the paternity in the birth registry”.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that:

1) the courts did not adequately take into account the link between him and the child that had been created prior to the birth of the child as well as during the first months of the child ’ s life;

2) the Custody Court was negligent in fulfilling its duties, as a result of which it reached the incorrect conclusion that the child was living in a family with A.L. and A.Z., as the result of which conclusion the applicant ’ s claim was rejected;

3) the overall length of the proceedings was excessive, especially considering that the proceedings were protracted due to the fault of State authorities and taking into account that what interests of the child were at stake.

The applicant complains under Articles 6 § 1 and 8 § 1 of the Convention that the outcome of the proceedings violated the right to respect for his family life, since he had been excluded from the life of his biological child due to incorrect and false reasons (the presumed existence of a family life between the child and A.L.).

QUESTIONS TO THE PARTIES