Information Note on the Court’s case-law 11

October 1999

Yildirim v. Austria (dec.) - 34308/96

Decision 19.10.1999 [Section III]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Absence of right for father to have proceedings to contest paternity instituted by public prosecutor: inadmissible

Article 8

Article 8-1

Respect for private life

Refusal to contest presumption of paternity: inadmiss ible

The applicant, a Turkish national, married an Austrian national already expecting a baby who he knew was not his. The applicant and the mother being married at the time of birth, the legal presumption of paternity provided for in the Austrian Civil Code ap plied to him. He allegedly realised this only when he and his wife started divorce proceedings more than a year later, by which time the time-limit within which he could contest the child’s legitimacy had expired. The applicant made use of the possibility offered by law of requesting the public prosecutor after expiry of the time-limit to institute proceedings to contest the paternity of the child. His request, however, was rejected on the ground that the denunciation of his paternity would threaten the chi ld’s interests, the natural father being unknown and the mother relying on her maintenance claim against the applicant to bring up the child. The applicant's further appeals were to no avail.

Inadmissible under Article 6 § 1: A public prosecutor may contes t a child’s legitimacy following the expiry of the one-year time-limit when he considers that either the public interest or the interests of the child or its descendants justify such action. However, according to the wording of the provision and the domest ic courts' decisions, the applicant did not have a right to have such proceedings instituted by the public prosecutor once his own action was time-barred: incompatible ratione materiae .

Inadmissible under Article 8: In a similar case (Rasmussen v. Denmark judgment of 28.11.84), in which a husband wished to institute proceedings to contest the paternity of a child born in wedlock, the question was left open whether there was “family life” in such instances because of the finding that the matter in any case u ndoubtedly concerned “private life”. As regards the issue raised by the instant case, there are legitimate reasons relating both to a need for legal certainty and to the security of family relationships to apply a general presumption of paternity to a marr ied man with regard to his wife’s children. It appears reasonable for the public prosecutor to give more weight to the child’s interests than to those of the applicant when deciding whether to institute proceedings to contest the child’s legitimacy. Conseq uently, the public prosecutor’s refusal did not disclose a lack of respect for the applicant’s private life: manifestly ill-founded.

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

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