Information Note on the Court’s case-law 241

June 2020

Boljević v. Serbia - 47443/14

Judgment 16.6.2020 [Section IV]

Article 8

Positive obligations

Article 8-1

Respect for private life

Time-bar precluding DNA test of deceased man and review of final judgment approving his disavowal of paternity, without applicant’s knowledge, before such tests became available: violation

Facts – The applicant thought that Mr A, h is mother’s ex-husband, was his biological father until Mr A died. In 2011-2012 the applicant discovered that Mr A had in fact successfully brought proceedings, which concluded in 1972, to disavow paternity of the applicant, who was 3 years old at the time . The applicant unsuccessfully sought to re-open those proceedings in order to establish the identity of his biological father on the basis of DNA testing, which was unavailable in 1972. The domestic courts ruled against the applicant, mainly on the ground s that the five-year time-limit for re-opening had expired (in 1977) and that the applicant had been represented in the impugned proceedings by an appointed legal guardian.

Law – Article 8:

The Court examined the present case from the standpoint of the res pondent State’s positive obligations.

(a) Whether the refusal to re-open the earlier civil proceedings was in accordance with the law and pursued a legitimate aim :

There was no evidence of arbitrariness in the reasoning of the national courts. Furthermore, when it came to the re-opening of proceedings already concluded by means of a final court judgment, in the paternity context or otherwise, there were, in the nature of things, serious implications for legal certainty, among other consideratio ns. Time-limits in paternity-related proceedings, in particular, had a legitimate aim: they were intended to protect purported fathers from stale claims, thus preventing the injustice that might arise if courts were required to make findings in respect of facts dating back many years. In addition, it was of course possible that domestic courts might legitimately refuse to re-open proceedings on other grounds, unrelated to time-limits, if those grounds were properly deemed as unsubstantiated.

In view of the foregoing, the refusal to re-open the civil proceedings concluded in the 1970s had been in accordance with the law and had pursued the legitimate aims of ensuring legal certainty and protecting the rights of others.

(b) Whether a fair balance has been stru ck :

Firstly, the applicant had attempted to establish the identity of his biological father, which has been recognised as a vital interest protected by the Convention that does not disappear with age. Secondly, there had been no legal way for the applicant to have the deadline for the submission of his request for re-opening extended. Domestic law did not allow for the relevant elements of the applicant’s specific situation to be taken into account or for a balancing of the relevant interests to be carried out. Thirdly, the private life of a deceased person, from whom a DNA sample would have had to be taken, could not have been adversely affected by a request to that effect. Fourthly, there was no indication in the case file as to what the position of the de ceased’s family would have been in respect of a DNA test. In any event, the applicant’s complaint had concerned the denial of an opportunity to prove that Mr A was indeed his biological father. After all, as far as he had known, that fact had not been in d oubt until 2011 or 2012. Even in birth certificates issued much later, in 2014 and 2019, Mr A had still been identified as the applicant’s father. Finally, the Court was unable to accept the Government’s argument that the applicant should have lodged a new civil claim.

In light of the foregoing, the preservation of legal certainty could not suffice in itself as a ground for depriving the applicant of the right to ascertain his parentage. Indeed, the Government themselves had acknowledged that the domestic c ourts had been unable to deal with the substantive issue of whether Mr A had indeed been the applicant’s biological father given the existing temporal limitations on the re-opening of proceedings. Having regard to the circumstances of the case and the over riding interest at stake for the applicant, and despite the margin of appreciation afforded to them in the present context, the authorities had not secured to him respect for his private life (compare and contrast, mutatis mutandis , A.L. v. Poland and R.L. and Others v. Denmark , where the findings of no violation of Article 8 was largely based on an analysis of what was in the best interests of children who were not the applicants in those cases).

In respect of applications involving sensitive and impor tant issues, such as the ones raised by the applicant in this case, various competing interests would be involved and a balancing exercise would have to be carried out. This in turn might, depending on the specific circumstances, lead the Court to adopt di fferent conclusions in those cases, provided that they were consistent with the general principles.

Conclusion : violation (unanimously).

Article 41: finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage.

(S ee also Mikulić v. Croatia , 53176/99, 7 February 2002, Information Note 39 ; Odièvre v. France [GC], 42326/98, 13 February 2003, Information No te 50 ; Jäggi v. Switzerland , 58757/00, 13 July 2006, Information Note 88 ; Backlund v. Finland , 36498/05 , 6 July 2010; A.L. v. Poland , 28609/08 , 18 February 2014; R.L. and Others v. Denmark , 52629/11, 7 March 2017, Information Note 205 ; Silva and Mondim Correia v. Portugal , 72105/14 and 20415/15 , 3 October 2017; Mifsud v. Malta , 62257/15, 29 January 2019, Information Note 225 ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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