THIRD SECTION

Application no. 27773/08 X and O thers against Latvia lodged on 6 June 2008

STATEMENT OF FACTS

The applicants are three Latvian nationals , born in 1974, 1963 and 2004 . They were represented before the Court by Ms A. Rektiņa , a lawyer practising in Rīga .

A. The circumstances of the case

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

The first applicant is the third applicant ’ s biological mother. The child was born out of wedlock in 2004. The second applicant does not reside together with the child and his mother, since he has another family with three children. According to the applicants, the child nevertheless recognises the second applicant as his father and considers his three other children to be his sisters.

On 1 June 2006 S.G. lodged an action with the Rīga City Vidzeme District Court to establish his paternity of the third applicant, submitting that he was the biological father, since he had had “carnal relations” with the first applicant from March 2003 to May 2004. S.G. also asked the court to order genetic testing in order to establish the child ’ s descent, to officially record him as the child ’ s father, to change the child ’ s family name and to grant him access to the child three days a week. He referred to, inter alia , sections 154 and 158 of the Civil Law (see below).

On the following day – 2 June 2006 – the second applicant officially acknowledged his paternity of the third applicant. On the same day the Rīga City Kurzeme District civil registry office ( dzimtsarakstu nodaļa ) issued a birth certificate which listed the first two applicants as the child ’ s parents. According to the applicants, it had become necessary to officially register the second applicant as the child ’ s father because the child was about to be enrolled in a kindergarten. The applicants submit that S.G. lodged the action to establish his paternity only because he had learned of the second applicant ’ s plan to acknowledge his paternity.

Pursuant to a request from the Vidzeme District Court, on 27 March 2007 the Rīga Orphans ’ Court ( Bāriņtiesa ) issued its opinion concerning the child ’ s paternity. The Orphans ’ Court found that it lacked jurisdiction to pronounce on S.G. ’ s request to order DNA testing. As concerns his request to be recognised as the child ’ s father, the Orphan ’ s Court considered that, since the second applicant had voluntarily acknowledged his paternity, the interests of a child to grow up in a stable family outweighed S.G. ’ s interests.

On 9 May 2007 the Vidzeme District Court adopted a judgment, in which it dismissed S.G. ’ s claims in full. The judgment indicated the first applicant as the respondent and the second applicant as a third party. The court held that according to the overall spirit of the national legislation applicable to the determination of paternity priority was to be given to a voluntary acknowledgement of paternity. Court-ordered paternity was an exception rather than a rule, only applicable in cases where there had been no voluntary acknowledgement of paternity. Section 156 of the Civil Law (see below) and the corresponding provision of the Law of Civil Procedure did not give S.G. the standing to dispute a voluntary acknowledgement of paternity in court. The court went on to dismiss S.G. ’ s argument that it was relevant that he had lodged his claim one day before the second applicant had acknowledged his paternity. The court pointed out that it had to take into account the factual situation that prevailed on the day when it adopted its decision, rather than on the day when the action was lodged. S.G. ’ s request to order genetic testing in order to establish the biological truth was characterised by the court as “a manifest disregard of the right to private life guaranteed by Article 96 of the Constitution”.

S.G. appealed and later (on 10 October 2007) invited the RÄ«ga Regional Court to order genetic (DNA) testing, in order to establish whether the second applicant or S.G. was the biological father of the child.

On the same day, 10 October 2007, the Rīga Regional Court held a hearing, which was attended by the applicants ’ legal representative, and adopted a decision to order genetic testing of S.G., the second applicant and the third applicant in order to verify the child ’ s biological descent. The court relied on section 121 (1) of the Law of Civil Procedure, which provides as follows: “an expert report shall be ordered upon a request from a party to the case in situations when, in order to establish facts relevant to the case, it is necessary to possess specialised knowledge in science ...”. According to the court it was necessary to order genetic testing essentially because the second applicant had acknowledged the paternity only after S.G. had already lodged an action with the court. For that reason it was held that S.G. had standing to bring a claim to determine paternity. The decision to order genetic testing was not subject to appeal. It was initially pronounced orally and the applicant ’ s representative was only able to receive a written copy after repeated requests.

On 20 December 2007 the chairman of the Department of Civil Cases of the Senate of the Supreme Court (on the basis of sections 483 and 484 of the Law of Civil Procedure, which bestow upon him such a right) complied with a request of the applicant ’ s representative to lodge a third-party appeal ( protests ) against the order of the Regional Court. The appeal pointed out several significant violations of the procedural and substantive law. In particular it was pointed out that, considering that at the time of the examination of the case the second applicant had voluntarily acknowledged his paternity, S.G. no longer had a right to dispute the paternity.

The Senate of the Supreme Court dismissed the extraordinary appeal by a decision that was adopted on 5 March 2008. The Senate considered that the claim submitted by S.G. was not intended to challenge the paternity of the second applicant (in which case section 156 of the Law of Civil Procedure would be applicable and S.G. would not have standing) but instead to determine paternity (and hence section 158 was applicable). The second applicant has recognised his paternity only after S.G. had lodged his action and therefore the question of S.G. ’ s standing only fell to be examined when the case would be examined on the merits. The Senate also disagreed that the procedural violations alleged in the protest were decisive to the outcome of the case.

Subsequently S.G. requested the RÄ«ga Regional Court to order a compulsory enforcement of its order concerning genetic testing. On 28 April 2010 the court upheld his request and ordered the Municipal police to deliver the applicants under constraint for genetic testing.

B. Relevant domestic law

If a child is born out of wedlock or if the birth has occurred more than 306 days after dissolution of marriage through annulment, divorce, or death of the father, 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 (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 249(2) of that law proves 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”. Section 249(4) allows to join in one proceedings a challenge to paternity established by presumption (that is, paternity of a child born to married parents or to parents whose marriage has dissolved less than 306 days prior to the birth of the child) and a claim for determining paternity.

Section 249 1 of the Law of Civil Procedure provides as follows:

Section 249 1 Ordering forensic tests

“ (1) Upon a request of a party to the case the court shall order tests to establish the biological descent of a child.

(2) If one of the parties to the case evades the testing, the court shall adopt a decision to deliver that person for forensic testing under constraint.”

COMPLAINTS

The applicants complain under Article 6 of the Convention that the decision to order genetic testing was adopted by the Rīga Regional Court with violations of procedural law. Namely, the judges did not depart to deliberate in a separate room before adopting the decision, the verbatim record of the hearing and the court ’ s decision was issued to the applicants ’ representative later than it should have been pursuant to the law, and the court ’ s decision was not adequately motivated and did not correspond to the facts of the case. In particular, the court had not explained its decision to order the texting of the second applicant who did not even have the procedural status of a party to the case.

The applicants complain under Article 8 (right to respect for private and family life) about the order of genetic testing. According to them, S.G. had never disputed the second applicant ’ s paternity and in any case had no standing to do so. Therefore the Rīga Regional Court had no reason to order the genetic testing. If S.G. were to have a right to request genetic testing in order to obtain the verification of a biological fact about the descent of the second applicant, it would lead to an absurd situation in which any person could request DNA testing of any child living in another family.

QUESTIONS TO THE PARTIES

1. Does the Rīga Regional Court ’ s decision to order genetic testing of the second and third applicant s constitute an interference with the applicants ’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention?

2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?