Published on 25 September 2023

FIRST SECTION

Application no. 1307/21 A.W. against Poland lodged on 13 December 2020 communicated on 5 September 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s access to court and the length of proceedings regarding establishing his paternity of two children born in 2005 and 2007, respectively, from an informal relationship with a married woman.

The applicant lived with the children and their mother until 2009 when the relationship ended. The children have been residing with the mother and her husband ever since.

The proceedings aimed at challenging the paternity of the mother’s husband, instituted by the prosecutor at the applicant’s request (lodged on 27 September 2010), have been pending at first instance since 4 January 2013. The applicant’s third-party intervention was ultimately dismissed on 19 May 2020. The applicant submits that, as he is not party to the proceedings, he cannot lodge a complaint under the Law of 17 June 2004 on complaint about a breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ).

The applicant’s contacts with the children have been regulated by a final court order of 3 March 2016 which the mother and her husband have refused to execute. The applicant claims that the same court’s decision of 23 July 2018 to warn the spouses that each of them will be fined (1,000 Polish Zlotys – approximately 225 euros) for every violation of the contact order did not result in the execution of contact.

The applicant complains under Articles 6 and 8 of the Convention that the domestic authorities infringed his right to respect for private and family life by failing to provide him with effective access to court as regards his paternity and contact with his children. He adds that, under the relevant legislation, even a successful challenge of the husband’s paternity will not automatically entail the confirmation of the applicant’s paternity but will open for the applicant the possibility to institute, himself, a new set of proceedings to that end. However, an action for the confirmation of paternity cannot be brought in respect of an adult child and the older child reached adulthood in 2023. Lastly, the applicant complains that this right was violated by the overall length of the proceedings.

QUESTION TO THE PARTIES

Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention (see Różański v. Poland , no. 55339/00, §§ 75-79, 18 May 2006; Kautzor v. Germany , no. 23338/09, § 63, 22 March 2012; Süß v. Germany , no. 40324/98, § 100, 10 November 2005; and Ribić v. Croatia , no. 27148/12, § 92, 2 April 2015)?

In particular, having regard to:

(i) the impossibility for the applicant to participate in the proceedings aimed at challenging the paternity of the mother’s husband;

(ii) the overall length of those proceedings and the impossibility for the applicant to challenge it;

(iii) the impact that the length of those proceedings has on the applicant’s effective right to have his paternity confirmed; and

(iv) the difficulty for the applicant to have the contact with the children enforced and the length of the proceedings in that regard.