FIFTH SECTION

Application no. 1154/07 Romano PETEK against Slovenia lodged on 29 December 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Romano Petek , is a Slovenian national who was born in 1966 and lives in Ptuj . He was represented before the Court by Ms R. Krivograd , a lawyer practising in Maribor .

A. The circumstances of the case

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

On 10 September 1988 D. gave birth to a boy , G.

On 17 May 1989 the applicant submitted a declaration of paternity of G. and asked the Maribor Basic Court to summon D. in order to testify on the issue.

Since D. refused to confirm that the applicant was the father of G., the applicant sought determination of his paternity rights in court proceedings against D., which he instituted on 4 October 1989.

Subsequently, on 3 November 1989, another person, V., submitted a declaration of paternity of G. to the local welfare authority , supported by D. ’ s testimony. Seventeen days later, with V. and D. ’ s consent, G. was put up for adoption.

In the course of the proceedings, the court held eight hearings, obtained a report from a gynaecologist and ordered a blood test, which was not carried out owing to D. and G. ’ s non-cooperation. On 7 October 1991 the Maribor Ba s ic Court allowed the applicant ’ s claim .

Appeals by D. and V. were rejected. They subsequently lodged appeals on points of law.

On 14 October 1992 the Supreme Court allowed the appeals on points of law , quashed the judgments of the lower courts and remitted the case for re ‑ examination. The Supreme Court found that the proceedings should have involved V. who by law was considered to be G. ’ s natural father. The Supreme Court further remarked on the fact that the adoption proceedings had been carried out despite the fact that the court proceedings had been pending and that it appear ed that V. had declared his paternity in order to make the adoption possible. It also noted that the determination of paternity in the present proceedings, which were initiated before the adoption of G., should be decisive for the validity of the adoption decision.

On 30 December 1992 the applicant instituted proceedings against D. and V. in which he challenged the validity of V. ’ s declaration of paternity.

In April 1994 the Maribor Basic Court joined the proceedings concerning the validity of V. ’ s declaration of paternity and the proceedings concerning the applicant ’ s claim for determination of his paternity rights. Further to the reorganisation of the Slovenian judiciary in 1995, the proceedings continued before the Ptuj District Court.

Between 9 May 1995 and 21 January 2002 the court held eight hearings and heard several witnesses, in particular the welfare workers involved in the adoption proceedings. On the latter date, the court delivered a judgment rejecting both of the applicant ’ s claims on the grounds that there was no indication that V. had declared his paternity only to make the adoption possible.

Further to the applicant ’ s appeal, the Maribor Higher Court quashed the judgment and remitted the case for re-examination on 11 February 2003. It found that several circumstances following the birth of G had not been sufficiently investigated. In particular, it referred to D. ’ s statement denying that V. was G . ’ s father , given immediately after G. ’ s birth , and the rush with the adoption proceedings . The Maribor Higher Court instructed the first-instance court to examine V. as well as to put further questions to the applicant and D.

Subsequently, the Ptuj District C ourt held hearings on 27 October, 10 November and 15 December 2003. On the latter date the Ptuj District Court delivered a judgment finding that V. ’ s declaration of paternity was invalid. On the same day it also decided to discontinue the proceedings in which the applicant sought determination of his paternity rights. The court explained that declaring the applicant a father of G. would lead to unacceptable consequences of G. having two legally recognised fathers. The court found that welfare authorities should first decide on the validity of the adoption in the view of the above judgment annulling V. ’ s declaration of paternity .

The applicant ap pealed. V. also appealed .

On 18 October 2005 the Maribor Higher Court allowed both appeals. It found that the issues in the two proceedings were interrelated and had to be resolved simultaneously. The court further explained that if the relevant test s showed that the applicant was not the biological father of G. he would los e legal standing in the proceedings challenging the validity of V. ’ s paternity declaration .

At the hearing of 20 January 2006 the Ptuj District Court allowed the applicant ’ s request for a DNA test to be carried out. In a decision of 28 March 2006 the court appointed the Ljubljana Institute for Forensic Medicine to prepare a report within the next sixty days. On 3 July 2006 the Ptuj District Court cancelled the order concerning the DNA test on the basis of a letter from G. ’ s legal guardian inform ing the court that the adoptive parents opposed any interference with G . ’ s physical integrity.

On 14 December 2006 the court asked the applicant to supply the correct name and address of G. On 3 January 2007 the applicant requested an extension of the time - limit and assistance from the court in obtaining the requested information which was confidential and therefore not directly accessible to him. On 17 January 2007 the applicant supplied the requested information.

On 12 February 2007 the court set a date for G., who was now an adult, D. and the applicant to give blood samples. G. and D. refused to give samples.

On 11 May 2007 a hearing was held at which G. ’ s representative submitted that G . did not wish his family situation to be changed in any way, that he considered his adoptive parents as his only parents and did not want to be introduced to any of the parties to the proceedings.

On 11 May 2007 the Ptuj District Court delivered a partial judgment in which it found that V. ’ s declaration of paternity of G. was invalid . It noted that all evidence assessed in the proceedings showed that the applicant was the father of G., but a decision to that effect could be issued only after the adoption was annulled.

D. and V. appealed against the partial judgment annulling V. ’ s declaration of paternity. Their appeals were rejected by the Maribor Higher Court on 7 December 2007.

On 13 February 2008, the applicant requested that a hearing be held in the pending proceedings concerning his paternity claim in respect of G.

Further to the Maribor Higher Court ’ s judgment of 7 December 2007, D. and V. lodged appeals on point of law, which were, on 27 August 2008, declared inadmissible by the Supreme Court on the grounds that the amount at stake did not reach the required threshold. The parties challenged this decision before the Constitutional Court . O n 19 February 2009 the Constitutional Court quashed the Supreme Court ’ s decision finding that the issue at stake in the proceedings had not been of a pecuniary nature and that the appeal on points of law should thus have been admissible.

On 26 August 2009 the Supreme Court delivered a judgment in which it reversed the lower court ’ s findings and concluded that , as things stood, the applicant ’ s claim for annulment of V. ’ s paternity declaration was unfounded.

On 24 February 2010 the Ptuj District Court discontinued the proceedings concerning the applicant ’ s paternity rights as the applicant had not come to a hearing and it was therefore assumed that he had lost interest in continu ing the proceedings.

B. Relevant domestic law

Relevant provisions of the Marriage and Family Relations Act (Official Gazette no. 69/2004 – official consolidated version, hereinafter referred to as “the Family Act”).

Section 87

“ The father of a child who was born outside marriage is the person who acknowledges paternity of the child or the person whose paternity is established by a court decision. ”

Section 90

“...

(2) If the mother does not agree with the declaration of paternity . . . the person who made such a declaration can lodge a claim with the court with a view to establishing that he is the father of the child. The claim can be lodged within one year after the mother refused to accept the declaration ... ”

Section 99

“(1) The person who believes himself to be the father of a child can challenge the paternity of the person who is considered as the father by law.

(2) He must lodge a claim with a court within a year of the registration of the paternity of that person.”

Section 141

“(1) A child can be put up for adoption only if his parents are unknown or ... if they have agreed to adoption before the competent authority.

... ”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the proceedings concerning the determination of his paternity have lasted an unreasonably long time .

He further complains under Article 13 of the Convention that the remedies available to him in respect of his complaint under Article 6 § 1 were entirely ineffective.

Lastly, the applicant complains that owing to the length of the proceedings , in which he sought determination of his paternity rights in respect of G. , he has been unable to form a relationship with his son. He alleges to have suffered emotional distress during the proceedings on account of the loss of the child who was adopted despite the uncertainties as to his paternity.

QUESTIONS TO THE PARTIES

1. Having regard to the Ptuj District Court ’ s decision of 24 February 2010, can the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34?

2. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention, on account of the alleged delay in the proceedings in which the applicant sought determination of his paternity rights in respect of G.?