Published on 5 December 2022

FIFTH SECTION

Applications nos. 55736/14 and 62020/14 Olena Yuriyivna SHVEDOVA against Ukraine and Oleksandr Volodymyrovych MOLDOVAN against Ukraine lodged on 31 July 2014 and 4 September 2014 respectively communicated on 16 November 2022

SUBJECT MATTER OF THE CASES

The applications mainly concern the applicants’ complaints that the authorities breached their right to respect for their private and family life, under Article 8 of the Convention.

Application no. 55736/14 ( Shvedova v. Ukraine )

The applicant is a mother of then-minor daughter born in 2000. The civil status register and the birth certificate indicated Mr Sh. (the applicant’s then-husband) as the father. In 2001 a domestic court established, with Sh.’s consent, that the father was Mr L. In 2013 the applicant sought to institute court proceedings seeking to amend the name of the father in the relevant civil status register. L. did not object. Sh. was repeatedly summoned but failed to appear before the courts. Child protection authorities refused to intervene in the proceedings.

The courts dismissed the applicant’s claim relying on a one-year limitation period for such actions. Final decision: the Higher Specialised Civil and Criminal Court on 30 April 2014.

The applicant complained, notably, that the courts’ application of the rules governing the statute of limitation was not foreseeable, notably because under domestic rules such a dismissal required the defendant to invoke the statute of limitations which had not been done.

Application no. 62020/14 ( Moldovan v. Ukraine )

The applicant was born in 1993 out of wedlock. A fictitious name was noted as the name of the father in the birth records, on the mother’s declaration. On 25 September 2012 the person the applicant considered his father, Mr Ch., died. In November 2012 the applicant lodged a claim against Ch.’s mother and sister, Ch.’s heirs by law, seeking acknowledgment of paternity. The defendants opposed the claim, disputing Ch.’s paternity of the applicant. A DNA examination ordered by the court revealed that the probability of paternity was 99.9999 percent.

Based on the Supreme Court’s case-law dating from 2006, the courts pointed out that the matters of establishing paternity of children born prior to 1 January 2004 (that is before the 2002 Family Code came into force) were governed by the provisions of the old 1969 Family Code under which “in establishing paternity the court shall take into account cohabitation and living as one household between the mother and the defendant prior to the child’s birth or common education or maintenance of the child, or evidence that reliably corroborates that the defendant recognised his paternity.” By contrast, the 2002 Code provides that paternity, in a court dispute, can be established by any evidence.

The courts found, based on witness and other evidence, that none of the circumstances required by the 1969 Code for judicial establishment of paternity were proven (notably there had been no cohabitation and the putative father had never recognised his paternity).

The Court of Appeal added that the reliability of the expert results was open to doubt since the putative father’s blood sample used for analysis had been transmitted from the establishment where it had been collected (apparently a morgue) to the DNA expert by the applicant’s family. Therefore, it could not be ruled out that the sample had been switched for the mother’s blood.

In his appeal in cassation the applicant objected, on the question of integrity of the material used for expert analysis, that the material had indeed been transmitted by his family but it had been transported under seal.

On 27 February 2014 the Higher Specialised Civil and Criminal Court refused to institute review in cassation proceedings, stating that there was no indication of illegality in the lower courts’ decisions.

QUESTIONS TO THE PARTIES

1. In both applications, has there been a breach of the applicants’ right to respect for their private and family life, within the meaning of Article 8 § 1 of the Convention (see, for example and mutatis mutandis , Jäggi v. Switzerland , no. 58757/00, ECHR 2006-X; Tavli v. Turkey , no. 11449/02, 9 November 2006; Roman v. Finland , no. 13072/05, 29 January 2013; A.L. v. Poland , no. 28609/08, 18 February 2014)?

2. In application no. 55736/14 ( Shvedova v. Ukraine ), was the applicant’s right of access to a court respected? Did she have a fair hearing in the domestic proceedings as required by Article 6 § 1 of the Convention (seem for example and mutatis mutandis , Petko Petrov v. Bulgaria , no. 2834/06, 19 February 2013; Dumitru Gheorghe , no. 33883/06, 12 April 2016)?