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PHINIKARIDOU v. CYPRUS - 23890/02 [2007] ECHR 1125 (20 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1125.html
Cite as:
[2007] ECHR 1125
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FIRST
SECTION
CASE OF
PHINIKARIDOU v. CYPRUS
(Application
no. 23890/02)
JUDGMENT
STRASBOURG
20
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Phinikaridou v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mrs N. Vajić,
President,
Mr L. Loucaides,
Mr A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E.
Jebens,
Mr G. Malinverni, judges,
and Mr S.
Nielsen, Section Registrar
Having
deliberated in private on 29 November 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 23890/02) against the Republic
of Cyprus lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mrs Yannoula Phinikaridou
(“the applicant”), on 7 June 2002.
The
applicant, who had been granted legal aid, was represented by Mr C.
Efstathiou, a lawyer practising in Nicosia. The Cypriot Government
(“the Government”) were represented by their Agent, Mr P.
Clerides, Attorney-General of the Republic of Cyprus.
The
applicant alleged a violation of Articles 6 and
8 of the Convention in that the proceedings she had instituted for
judicial recognition of paternity had been held to be time-barred
under the applicable law.
By
a decision of 31 August 2006, the Court declared the application
partly admissible.
Neither
the applicant nor the Government filed further written observations
on the merits of the case (Rule 59 § 1).
The
applicant submitted her claims for just satisfaction and the
Government made their comments on that matter.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1945 and lives in Nicosia.
A. Background to the case
The applicant was born out of
wedlock. Her biological mother abandoned her outside the house of a
lady who gave her to Mrs Maria Phinikaridou. The latter brought her
up. Although estranged from her biological mother, the applicant did
not lose all contact with her. In December 1997, when the applicant
was fifty-two years old, her biological mother, just before dying,
told her the name of her biological father in the presence of the
applicant's son. Her mother died in January 1998.
On 24 June 1999 the applicant
lodged an application with the Nicosia Family Court requesting
judicial recognition of paternity on the basis of section 20 (2) of
the Children (Relatives and Legal Status) Law 1991 (hereinafter
“Children Law”). The respondent, who the applicant
claimed to be her father, objected to the application and denied
paternity. Without going into the merits of the paternity claim, he
maintained that the applicant's claim was time-barred under
section 22 (3) of the above Law. The applicant in reply claimed
that the aforementioned section and, in addition, section 25 (1) of
the same Law setting in motion the period of limitation on the date
of entry into force of the Law rather than on the date when she
acquired knowledge of her father's identity, were unconstitutional.
In particular, she argued that they were contrary to Articles 15
§ 1 (the right to respect for private and family life), 28 (the
principle of equality and non discrimination) and 30 § 1 (the
right of access to a court) of the Constitution. The applicant
contended that she had been prevented from having recourse to court
and from determining through a judicial procedure whether or not she
was the respondent's daughter. She had also been placed in a
disadvantageous position with regard to other litigants who happened
to acquire information concerning their father within the set
time-limit.
On 15 September 1999 the
respondent applied to the court for trial of the preliminary matter
of whether the applicant's claim was statute-barred. On 30 October
2000 the applicant filed an application requesting the court to refer
the question to the Supreme Court.
On 17 May 2001 the Nicosia
Family Court, following the agreement of the parties, decided to
refer the issue of constitutionality of section 22 (3) to the Supreme
Court pursuant to Article 144 of the Constitution.
B. The Supreme Court's judgment
In its judgment of 23 November
2001 the Supreme Court, by majority, (Judges Artemides, Nicolaides,
Kallis, Iliades, Kramvis and Gavrielides), held that sections 22 (3)
and 25 (1) of the Children Law complied with the relevant provisions
of the Constitution and the Convention. In particular, the Supreme
Court noted the following:
“The applicant's lawyer suggests that the
violation of Articles 15 and 30 of the Constitution is caused by the
fact that the applicant learnt the identity of her natural father in
1997. It was, consequently, objectively impossible to file the
application for her recognition within the three-year period from the
date the Law came into force. Therefore, as the suggestion concludes,
Article 30 (1) of the Constitution is also violated because the
applicant is deprived of access to the court to claim the right which
the Law gives her, a right which originates directly from Article 15
of the Constitution, which protects private and family life. Another
suggestion of the applicant's lawyer, concerning unfavourable
discrimination caused by the different time limits for the
proscription of other rights that are provided for by the Law, we
will not deal with because it was not pursued.
...
The matters raised are extremely serious because they
touch on the institution and the function of the family, the most
important nucleus of society, the members of which are bound by the
deepest and purest feelings of love and solidarity. The State
considers self-evident the value of the institution of the family,
which it also protects in its most powerful statute, the
Constitution. It also regulates the whole range of family
relationships, always according to the criterion of their lawful
functioning in society as a whole, in legislative rules which
constitute the basis of law known as Family Law.
The basis of our discussion is Articles 15 and 30 of the
Constitution, corresponding to Articles 8 and 6 of the European
Convention for the protection of Human Rights and Fundamental
Freedoms, which was ratified by our House of Representatives by Law
N. 39/62. The decisions of the ECHR and the Commission, consequently,
on the matters with which we are concerned show the course, which our
jurisprudence also demonstrates.
...
In the recent decision of the Full Court of the Supreme
Court Pantelis Yiorgalla v. Soulla Hadjichristodoulou
(2000) 1 A.A.D. 2060, we dealt with the provisions of Article
11(1)(a) of the same Law, according to which the challenge to
paternity is barred to the husband of the mother after the lapse of
one year from the time he is informed of the birth and the
circumstances from which the conception of the child resulted. The
Family Court had also addressed the same questions with reference
again to Articles 15 (1) and 30 (1) of the Constitution.
We refer to our above decision of which, as we believe,
the reasoning holds in the present case as well without any
differentiation whatsoever. The legal principles, as discussed and
adopted, are applicable here too.
...
The general principle which emerges from the decisions
of the ECHR is that the right of access to the court is subject to
legitimate restrictions, precisely for its rational functioning for
all interested parties in the judicial process. The ECHR judges that
the period of proscription of a right serves fundamental purposes
inseparably interwoven with the certainty about the rights of
individuals and aims at the finality of the dispute.
...
The differentiation from the case of Yiorgalla is
created, as the applicant's lawyer suggests, when the child, who
seeks recognition by its natural father, learns his identity after
the proscription of its right, as this is laid down in the Law. In
this case, the lawyer asserts, the right is proscribed as happens in
the case of the applicant.
We do not agree with this position. In the legislative
provisions for the proscription of civil rights the starting point of
the time-limit is not the litigant's knowledge of the particulars on
the basis of which he will pursue his right but the event which
created the cause of action. And this is determined, in the case of
disagreement, by the Court according to objective criteria. This
principle was applied by the Commission for Human Rights in the case
X. v. Sweden.”
The Supreme Court laid emphasis
on the decision of the European Commission of Human Rights in the
case of X v. Sweden
(decision of 6 October 1982, no. 9707/82, Decisions and Reports
31, p. 223), in particular the following extract:
“In the opinion of the Commission it must
generally be accepted in the interest of good administration of
justice that there are time-limits within which prospective
proceedings must be instituted. It must also be accepted that the
time-limit is final and that there is no possibility to institute
proceedings even when new facts have arisen after the expiry of the
time-limit. This is also true for paternity proceedings. The
Commission is furthermore of the opinion that a time-limit of three
years from the child's birth as in the present case, is not an
unreasonable time-limit for instituting paternity proceedings.
Accordingly, the Commission finds that the fact that the applicant
was not permitted to institute paternity proceedings does not
disclose any appearance of a violation of Article 6 of the Convention
taken alone.”
The
Supreme Court concluded that the provisions of sections 22 (3) and 25
(1) of the Children Law not only did not conflict with the provisions
of Articles 15 and 30 of the Constitution but, on the contrary, were
in line with the jurisprudence and reasoning which the Court has
adopted in the operation and application of the corresponding
Convention articles. In this regard, the Supreme Court held the
following:
“We also note that the entirety of the provisions
of Articles 15 and 30 which have occupied our attention create not
only rights but also obligations. Article 30 does not operate only on
behalf of the person resorting to the court but also on behalf of
those who are being sued. All the interested parties before the Court
have the right to a fair trial according to paragraph 2 of the
article, have the right to present their case, adduce evidence and
examine witnesses, as contained in paragraph 3 of the same article.
The right of protection in private and family life is provided for in
paragraph 1 of Article 15, in accordance however, with paragraph 2
the intervention by law in this right is permitted for the protection
of the rights and freedoms which the Constitution guarantees to any
other person. The principle of proportionality and balance of the
rights is also based on the spirit and on the letter of these
provisions, as is discussed in the passages we have cited above.
In the particular question before us, it should not be
overlooked that in the period which will have elapsed between the
birth of the child born out of wedlock and the submitting of the
application for paternal recognition, the alleged father could have
created his own family. The submitting of an application for paternal
recognition and indeed when the alleged father is advanced in age
will without doubt cause upheaval in his family life. Therefore the
recognition of the right to submit an application without time-limits
may, on the one hand, have as a consequence the creation of a family
for the child but, on the other, lead also to the break-up of another
family, the family of the alleged father. It is for this reason that
the principle of proportionality must play the decisive role. Its
correct and commensurate application dictates that the pursuance of
the relevant right is subject to proscription after the lapse of a
reasonable time after the child's birth.”
Finally,
the Supreme Court did not make an order for costs in view of the
interesting and novel legal matter raised before it.
However,
a minority of the Supreme Court judges dissented (Judges Pikis,
Nikitas, Konstandinides, Nicolaou and Hadjihambis). The
minority found that section 22(3) of the Children Law was contrary to
and incompatible with the provisions of Articles 15 (1) and 30 (1)
and (2) of the Constitution since it suppressed the exercise of the
family right for recognition of paternity.
They therefore considered that the application could not be
considered time-barred.
The
minority, following the Supreme Court's judgment in Yiorgalla
v. Hadjichristodoulou ((2000) 1 A.A.D. 2060), considered
that the setting of a time-limit for the
exercise of the civil right to recognition of paternity was
acceptable provided that it was not oppressive and left a reasonable
margin for the exercise of the right. The creation of institutions,
for the incorporation into the family of a child born out of wedlock,
was an obligation of the State, which was imposed by both Article 15
of the Constitution and Article 8 § 1 of the Convention.
They
further observed that it was indisputable that the right of
recognition of paternity constituted an integral aspect of the family
life of the individual which Article 15 (1) of the Constitution
safeguarded. It was equally certain in their view that the exercise
of this right by the child might be subject to reasonable time
limitations. The crucial question was whether a time-limit for the
exercise of the right could be set irrespective of the knowledge of
the facts that constituted the right or even the possibility, viewed
objectively, of acquiring knowledge about this by acts of the person
who has the right.
The
minority also examined the Law Concerning Proscription, Cap. 15,
and in this context stated the following:
“In Civil Law, the setting of time limits is
related, as a rule, to the moment the cause of action arises. The Law
Concerning Proscription Cap. 15, provides for this. ...
This principle is subject to two categories of
exceptions: those which concern:-
the impossibility of exercise of the right by persons
who face an impediment – minority (under the age of 18), mental
disturbance, prohibition from administering the individual's affairs
or absence from the country; and
the fraudulent concealment of the cause of action or the
relief from the consequences of error.
In both cases, the time for the exercise of the right is
suspended for as long as the ignorance or impediment exists. The
spirit, by which the Law of Proscription is inspired, is that the
ignorance or the impossibility of defending rights suspends, within
the framework we have explained, the time limits.
The subject of paternity belongs to the established
civil rights which touch on the existence of the individual. The
recognition of paternity takes effect against all and marks the
framework of the family of the individual (see Nicolaides v.
Yerolemi ((1984) 1 C.L.R. 742).
The question in the present case is whether the right
which the person concerned is ignorant of and, objectively viewed,
could not ascertain its existence, can be proscribed before it comes
to the knowledge of the person entitled to exercise it. The right
under discussion is protected as a fundamental right of man by the
Constitution. The question is asked whether the proscription of the
right, independently of the knowledge or the possibility of acquiring
knowledge of its existence, is compatible with the respect for the
right to family life, which Article 15 (1) of the Constitution
safeguards and of the right of recourse to the court, which Article
30 (1) and (2) of the Constitution safeguards. Taking the question
further: is the elimination ever possible of a fundamental right, the
existence of which the person concerned does not know and about which
he does not have the means of being informed?”
The
minority considered that the decision of the Commission of Human
Rights in X. v. Sweden (cited above) did not
touch directly on the matter before them, which revolved round the
respect for the right to family life. They found however that
indirectly, it shed some light on the point in issue to the extent
that it maintained that the separate regulation for the claim by the
child for the recognition of paternity was a right of a peculiar
character which was connected to the particularities of the quest for
paternity by the child itself. The Court's judgment in the case of
Kroon and Others v. The Netherlands (judgment of
27 October 1994, Series A no 297 C, p. 43) in which it was
held that the limitations imposed by Dutch law on the recognition of
paternity constituted a violation of the right to family life, was
directly relevant to the facts of the applicant's case.
The
minority finally underlined that:
“The facts which relate to the paternity of a
child relate to the time before its birth, in reality to the time
which relates to its conception. Objectively, the child does not
know, nor has it the means of learning about the facts, which
surround its conception. The only persons who have authentic
knowledge of these facts are the parents, each of them, primarily the
mother. Chance knowledge, to the extent that the possibility of the
paternity of a child is thought likely, may be acquired by third
persons to the extent that the facts concerning the paternity of a
child are rumoured, without it ever being certain that such
possibility will come to the knowledge of the person affected. The
setting of a time-limit for the exercise of the right to recognition
of paternity, regardless and independent of the knowledge of facts
that constitute it, reduces the right to the point of extinction. The
core of the right to family life is violated and the right provided
becomes only a right by law, does not obtain respect.”
Following the Supreme Court's judgment, the applicant
withdrew her application before the Family Court on 3 April 2002.
The applicant's alleged biological father died on an
unspecified date in 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
1. The right to respect for private and family life
Article
15 of the Constitution provides as follows:
“1. Every person has the right to respect for his
private and family life.
2. There shall be no interference with the exercise of
this right except such as is in accordance with the law and is
necessary only in the interests of the security of the Republic or
the constitutional order or the public safety or the public order or
the public health or the public morals or for the protection of the
rights and liberties guaranteed by this Constitution to any person.”
2. The right to equality and prohibition of
discrimination
Article
28 (1) and (2) provides as follows:
“1. All persons are equal before the law, the
administration and justice and are entitled to equal protection
thereof and treatment thereby.
2. Every person shall enjoy all the rights and liberties
provided for in this Constitution without any direct or indirect
discrimination against any person on the ground of his community,
race, religion, language, sex, political or other convictions,
national or social descent, birth, colour, wealth, social class, or
on any ground whatsoever, unless there is express provision to the
contrary in this Constitution.”
3. The right to access to court
Article
30 (1) and (2) provides as follows:
“1. No person shall be denied access to the court
assigned to him by or under this Constitution. The establishment of
judicial committees or exceptional courts under any name whatsoever
is prohibited.
2. In the determination of his civil rights and
obligations or of any criminal charge against him, every person is
entitled to a fair and public hearing within a reasonable time by an
independent, impartial and competent court established by law ... .”
4. Referral of questions of constitutionality to the
Supreme Court
Article 144 reads as follows:
“1. A party to any judicial proceedings, including
proceedings on appeal, may, at any stage thereof, raise the question
of the unconstitutionality of any law or decision or any provision
thereof material for the determination of any matter at issue in such
proceedings and thereupon the Court before which such question is
raised shall reserve the question for the decision of the Supreme
Constitutional Court and stay further proceedings until such question
is determined by the Supreme Constitutional Court.
2. The Supreme Constitutional Court, on a question so
reserved, shall, after hearing the parties, consider and determine
the question so reserved 'and transmit its decision to the court by
which such question has been reserved.
3. Any decision of the Supreme Constitutional Court
under paragraph 2 of this Article shall be binding on the court by
which the question has been reserved and on the parties to the
proceedings and shall, in case such decision is to the effect that
the law or decision or any provision thereof is unconstitutional,
operate as to make such law or decision inapplicable to such
proceedings only.”
B. The Children (Relatives and Legal Status) Law 1991
(Law no. 187/91, as amended)
1. Limitations on challenging paternity
Section 11 (1) (a)
“Challenging paternity is excluded:
(a) for the husband of the mother, when one year has
passed from the date he was informed of the child's birth and the
circumstances from which it emerges that the mother did not conceive
by him, and, in every case five years after the birth... .”
2. Voluntary and judicial recognition of paternity of a
child born out of wedlock
Section 13
(1) “The child that is born out of wedlock
acquires retrospectively after its birth the legal status and the
rights of a child born in wedlock as against its parents and their
relatives, if the parents subsequently marry and the child had been
recognised or after the marriage is recognised voluntarily or by
judicial decision as the child of the husband.
(2) The voluntary recognition as provided in paragraph 1
may be challenged on the grounds that the husband of the mother is
not the father in accordance with the provisions of article 18.”
Section 15
“The paternal recognition of a child who is born
out of wedlock is effected by –
(a) voluntary recognition or
(b) recognition by judicial decision.”
Section 16
(1) “The father can recognise a child born out of
wedlock as his own provided that the mother consents to this.
(2) If the mother has died or does not have the capacity
to enter legal relations, the recognition is effected by the sole
declaration of the father.
(3) If the father has died or does not have the capacity
to enter into legal relations, the recognition may be given by the
paternal grandfather and grandmother.
(4) If the child has died the recognition takes effect
for the benefit of its descendants.”
Section 17 (5)
“If
the consent of the mother is given in accordance with the provisions
of this article, the recognition is considered to have been carried
out and the analogous changes are made in the official registers.”
Section 20
(1) “The mother has the right to ask by her
application to the Court for the recognition of the paternity of her
child that was born out of wedlock with its father”.
(2) The child also has the right referred to in
paragraph (1) above.
(3) When the mother refuses her consent as provided by
paragraph (1) of section 16, the father also has the right to
recognition by judicial decision and in the case of paragraph (3) of
section 16 the paternal grandfather and grandmother.”
Section 21
“(1) The application of the mother for recognition
by judicial decision is brought against the father or his heirs.
(2) The application of the child for recognition by
judicial decision is brought against the parent who has not proceeded
with the necessary declaration for voluntary recognition or his
heirs.
(3) The application of the father or of his parents for
recognition by judicial decision is brought against the mother or her
heirs.”
3. Limitation periods and proscription of the right to
judicial recognition
Section
22 sets maximum time-limits after which it is not legally permissible
for the mother, child or father, as the case maybe, to seek judicial
recognition of paternity. Unless exercised within the periods of
limitation specified in the section, the legal right to seek judicial
recognition is proscribed.
Section 22
“(1) The right of the mother to ask for
recognition by judicial decision of the paternity of her child is
prescribed after five years have lapsed since its birth.
(2) If the mother was married at the crucial period of
the child's conception, her right to ask for the recognition by
judicial decision of the paternity of her child by the biological
father is prescribed when five years have lapsed from the day when
the decision became irrevocable which accepts the challenge to
paternity in accordance with the provisions of section 8.
(3) The right of the child to ask for its recognition by
judicial decision is prescribed three years after it has attained its
majority.
(4) The right of the father or of his parents to ask for
the recognition by judicial decision is prescribed three years after
the mother has refused to give her consent to voluntary recognition.
(5) In the case of section 13 the right to recognition
by judicial decision is not proscribed.”
4. Effects of recognition of paternity
Section 23
“In the case of voluntary recognition or
recognition by judicial decision the child acquires from its birth
the legal status and the rights of a child born in wedlock as against
both its parents and their relatives.”
5. Computation of limitation periods –transitional
provision
By virtue of section 25 (1), in the case of
applications of judicial recognition of paternity where majority was
attained before the law entered into force, the three-year limitation
period is set in motion on the date of entry of the Law, that is 1
November 1991, and not on the earlier date of attaining majority as
referred to in section 22 (3):
Section 25 (1)
“In the cases where in this Law reference is made
to time-limits within which a person may exercise his rights or take
the measures which this Law provides, these time-limits begin to run
from the date when this Law came into effect.”
Therefore, the limitation period provided for in
section 22 (3) is not retroactively applied.
C. The Law on Parent-Child Relations ((Law no. 216/90,
as amended)
The relevant provisions of Law 216/90 on parent-child
relations provide as follows:
Section 5 (1) (a) and (b)
“(a) The care of a child who is a minor (“parental
care”) is the duty and right of the parents who exercise it
jointly.
(b) Parental care includes the determination of a name,
the supervision of the person, the administration of the property and
the representation of the child in each matter or legal transaction
which relate to its person or property.”
Section 33 (1) and (2)
“(1) The parents have the obligation to maintain
jointly their child who is a minor, each according to his
capabilities.
(2) By a decision and relevant arrangement by the Court,
the obligation of the parents by virtue of paragraph (1) may continue
after the child attains its majority in cases where special
circumstances demand this, such as in cases of incapacity or
disability of the child or service in the National Guard or study at
an educational institution or professional training school.”
D. Case-law
In
the case of Yiorgalla v. Hadjichristodoulou (cited above)
the Supreme Court, sitting as a full bench, examined the
constitutionality of the one-year limitation period set by section 11
(1) (a) of the Children Law with respect to applications contesting
paternity. According to this provision the limitation period starts
to run from the time the mother's husband is informed of the birth
and the circumstances from which the conception of the child
resulted. The question whether this time-bar was in line with
Articles 15 and 30 (1) of the Constitution was referred to the
Supreme Court by the Family Court.
The
Supreme Court held that the protection of family life, which was
safeguarded as a fundamental right by Article 15 (1) of the
Constitution and, in parallel, by Article 1 of the Convention,
extended also to the procedural means which were provided for the
constitution of the family and the relations between its members.
Rights interwoven with family life were “civil rights” in
the sense that the term has in Article 30 of the Constitution and in
Article 6 § 1 of the Convention. Article 30 (1) of the
Constitution secured access to the Court for the claiming of civil
rights. The setting of a time-limit for the exercise of civil rights
was acceptable provided that the restriction which was set was not
oppressive and left a reasonable margin for the exercise of the
right. Furthermore, the time-limit had to correlate with the purpose
which it aimed to serve. An objective purpose of time-limits was the
securing of certainty as regards the rights of the individual. The
repudiation of paternity was by nature a civil right the exercise of
which could be subject to time-limits. The creation of institutions,
for the inclusion into the family of a child born out of wedlock was
an obligation imposed by Article 8 § 1 of the Convention on the
State.
The
Supreme Court noted that since the father had had knowledge of the
material facts concerning the presumption of paternity from the day
of the child's birth, the time-limit of one year was sufficiently
long for the purposes of seeking judicial determination of his
rights.
Accordingly,
the Supreme Court held that the time-limit was in conformity with the
Constitution.
THE LAW
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained under Article 8 of the Convention that the
statutory three-year limitation period prevented her from instituting
proceedings for the judicial recognition of paternity. The
aforementioned provision provides as follows, in so far as relevant:
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties' submissions
1. The Government
The
Government first submitted that when the applicant had filed her
application to the Family Court for judicial recognition of
paternity, her claim had been time-barred since 1 November 1994. By
virtue of section 25 (1) of the Children Law the three-year
limitation period had begun to run from 1 November 1991, that is, the
date the above Law entered into force, since the applicant had
attained the age of majority before that date. The Law afforded
claimants, such as the applicant, who had not found out their
father's identity before attaining majority, a three-year period
during which they could take steps for discovering paternal identity
and institute proceedings in this respect. The purpose of the Law was
to ensure that children attaining majority before it entered into
force were on the same footing as children attaining majority after
its entry with regard to the right to seek judicial recognition of
paternity. However, the applicant had claimed in the domestic
proceedings that she had first acquired knowledge of the identity of
her father in December 1997 after her right had been time-barred.
The
Government argued that the setting of the limitation period for the
child to three years from attaining majority was reasonable. They
noted that by virtue of the Parents and Children Relations Law 1990
(Law no. 216/90, as amended), parental care was a right and duty
of both parents. In the case of children born out of wedlock the
mother took on parental care and, in the event that the child was
recognised, it was also taken on by the father. Parental care under
the Law included the administration by the parent of the child's
property, representation of the child by the parent and child
maintenance. Since a child could not institute legal proceedings
before attaining majority, the Children Law provided for the mother
to institute judicial paternity proceedings within five years from
the birth of the child (section 22 (1)-see paragraph 28 above).
If however for any reason the mother did not do so, the child was
afforded its own separate right to seek judicial recognition upon
attaining the age of majority, provided that it did so until becoming
twenty-one. Thus, the child had three years during which it had the
opportunity to make enquiries and take any necessary steps to
ascertain and gain information as to its paternal identity.
The
Government emphasised that the three-year limitation period served
several important purposes. Firstly, it intended to provide finality
and legal certainty and to prevent stale claims from coming to court.
A period of twenty-one years from the date of birth constituted a
substantial amount of time bearing in mind that the courts would have
to examine material events and evidence directly concerning the issue
of paternity, which would go back to the child's birth. The
limitation period thus served to prevent injustice that could arise
if courts had to decide upon events that had taken place in the past
based on evidence that might have become unreliable and incomplete
due to the passage of time (here the Government relied on
Stubbings and Others v. the United Kingdom, judgment
of 22 October 1996, Reports of Judgments and Decisions
1996 IV, pp. 1502-1503, § 51; and X v. Sweden,
cited above). Furthermore, the Government noted that the time-bar
pursued the legitimate aim of protecting defendants from claims that
could be vexatious and unfounded. Amongst other things, it prevented
fabrication of the date on which allegedly knowledge of the father's
identity had been acquired but also as to facts instrumental to the
substance of the case. The Government noted that the time-limit
ensured that the alleged father's rights and obligations and those of
his family and heirs did not remain undetermined ad infinitum
and were protected. At the same time, the existence of the limitation
period encouraged plaintiffs to pursue their rights diligently and
avoid the uncertainty and absence of finality that would ensue as to
the rights and obligations of third parties.
In
the light of the above, the Government maintained that the three-year
limitation period running from the age of majority, or in cases such
as the instant one, from the date of entry into force of the Law, did
not contravene Article 8 of the Convention. They considered that the
time-bar pursued a legitimate aim and, that a balance had been struck
between the aim sought to be achieved and the means employed for
achieving it, in line with the principle of proportionality.
Furthermore, the Government accepted that they had an obligation
under that provision to enable the applicant to determine her
paternity and thus her identity. By granting the applicant the right
to institute judicial proceedings for paternity the State had
fulfilled this obligation. The applicant however was in fact claiming
that the Government should afford her the right to institute
paternity proceedings at any time. In the Government's opinion,
Article 8 imposed no such obligation on States. In conformity with
the principle of proportionality, a fair balance had to be struck
between securing the applicant's right to have her personal identity
determined and ensuring that the freedoms of others were protected.
The time-limit set by the Children Law satisfied the above
requirements and did not violate the applicant's right guaranteed by
this provision.
The
Government stressed that in the instant case, the applicant in
reality had had the opportunity to take steps for the discovery of
her father's identity from 1963 when she had reached the age of
majority. Furthermore, she had been afforded an additional three
years from 1 November 1991 through the transitional provisions of the
Children Law. Accordingly, the fact that she could no longer pursue
her right was not attributable to the provisions of the Law as such
which had given her ample time in this respect but to her own inertia
in failing to take steps that could have led her to discover her
paternal identity before the proscription of her right.
2. The applicant
The
applicant contested the Government's arguments that she had
deliberately acted or omitted to bring paternity proceedings within
the prescribed time-limit. The applicant argued that she could not be
blamed for the fact that she had been given the chance to identify
her father only at the age of fifty-two. She had been deprived of her
right to seek judicial recognition of paternity. In her opinion, the
Law in question was disproportionate since her above right had been
extinguished before it had been created. Hence, she submitted there
had been a violation of her rights under Article 8 of the Convention.
B. The Court's assessment
1. Applicability of Article 8 of the Convention
It
is not disputed between the parties that Article 8 is applicable.
In
this connection, the Court notes that the applicant, a child born out
of wedlock, sought by means of judicial proceedings to determine her
legal relationship with the person she claimed was her father,
through the establishment of the biological truth.
The
Court reiterates that birth, and in particular the circumstances in
which a child is born, forms part of a child's, and subsequently the
adult's, private life guaranteed by Article 8 of the Convention (see
Odièvre v. France [GC], no. 42326/98,
§ 29, ECHR 2003 III). Respect
for private life requires that everyone should be able to establish
details of their identity as individual human beings and that an
individual's entitlement to such information is of importance because
of its formative implications for his or her personality (see, for
example, Mikulić
v. Croatia, no. 53176/99, §§
53-54, ECHR 2002 I; and Gaskin v. the United Kingdom,
judgment of 7 July 1989, Series A no. 160, p. 16, §§
36-37, 39). This includes obtaining information necessary to discover
the truth concerning important aspects of one's personal identity,
such as the identity of one's parents (see Jäggi
v. Switzerland, no. 58757/00, § 25, ECHR
2006 ...; Odièvre, § 29; and Mikulić,
§§ 54 and 64; both cited
above).
Accordingly,
the facts of the case fall within the ambit of Article 8 of the
Convention.
2. Compliance with Article 8
The
Court reiterates that the essential object of Article 8 is to protect
the individual against arbitrary action by public authorities. There
may in addition be positive obligations inherent in ensuring
effective “respect” for private or family life. These
obligations may involve the adoption of measures designed to secure
respect for private life even in the sphere of the relations of
individuals between themselves (see Kroon, cited above,
§ 31; and Mikulić, cited above, § 57).
However, the boundaries between the State's positive and negative
obligations under this provision do not lend themselves to precise
definition. The applicable principles are nonetheless similar. In
both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and of the
community as a whole; and in both contexts the State enjoys a certain
margin of appreciation (see Keegan v. Ireland, judgment
of 26 May 1994, Series A no. 290, p. 19, § 49; and Kroon,
cited above).
The
Court reiterates that its task is not to substitute itself for the
competent domestic authorities in regulating paternity disputes at
the national level, but rather to review under the Convention the
decisions that those authorities have taken in the exercise of their
power of appreciation (see, inter alia, Różański v.
Poland, no. 55339/00, § 62, 18 May 2006; Mikulić,
cited above, § 59; and Hokkanen v. Finland, judgment of
23 September 1994, Series A no. 299-A, p. 20, § 55). The
Court will therefore examine whether the respondent State, in
handling the applicant's action for judicial recognition of
paternity, has complied with its positive obligations under Article 8
of the Convention.
At
the outset, the Court observes that the applicant did not dispute
that the impossibility of bringing an action for judicial recognition
of paternity was “in accordance with the law”. Indeed,
she complained that the time-limit imposed by the Children
Law (see paragraphs 28-30 above) prevented her from having the
possibility of obtaining a judicial recognition of paternity before
the domestic courts in violation of Article 8 of the Convention.
In
this connection it can be observed that the Children
Law introduced the right of a child to institute proceedings for
judicial recognition of paternity in the domestic legal system in
1991. This right is subject to a three-year time-limit which starts
to run from the moment the child reaches the age of majority (see
paragraph 28 above). However, for persons who attained majority
before the date the above Law came into force, that is, 1 November
1991, such as the applicant, the time-limit commenced from that date
(see paragraph 29 above). Thus, in the instant case the applicant had
until 1 November 1994 to institute paternity proceedings. The
applicant, however, instituted such proceedings subsequent to the
expiration of the time-limit as she claimed that she had only found
out her father's identity in December 1997. Her application was then
found to be time-barred (see paragraphs 12-14 above).
The
Court has previously accepted that the introduction of a time-limit
for the institution of paternity proceedings was justified by the
desire to ensure legal certainty and finality in family relations
(see, for example, Mizzi v. Malta (no. 26111/02, § 88,
ECHR 2006 ... (extracts); and Rasmussen v. Denmark,
judgment of 28 November 1984, Series A no. 87, p. 15,
§ 41). Furthermore, as submitted by the Government (see
paragraph 40 above), the time-limit imposed by the Children
Law for actions concerning recognition of paternity intends to
protect the interests of presumed fathers from stale claims and
prevent possible injustice if courts were required to make findings
of fact that went back many years (see, inter alia, Mizzi, cited
above, § 83; Shofman v. Russia, no. 74826/01,
§ 39, 24 November 2005; and, mutatis mutandis,
Stubbings, cited above, § 51).
Accordingly,
the existence of a limitation period per se is not
incompatible with the Convention. What the Court needs to ascertain
in a given case is whether the nature of the time-limit in question
and/or the manner in which it is applied is compatible with the
Convention.
When
deciding whether or not there has been compliance with Article 8 of
the Convention, the Court must determine whether on the facts of the
case a fair balance was struck by the State between the competing
rights and interests at stake (see paragraph 47 above). Apart from
weighing the interests of the individual vis-à-vis the general
interest of the community as a whole, a balancing exercise is also
required with regard to competing private interests. In this
connection, it should be observed that the expression “everyone”
in Article 8 of the Convention applies to both the child and the
presumed father. On the one hand, people have a right to know their
origins, that right being derived from a wide interpretation of the
scope of the notion of private life (see Odièvre, cited
above, § 42). Persons in the applicant's situation have a vital
interest, protected by the Convention, in receiving the information
necessary to uncover the truth about an important aspect of their
personal identity and eliminate any uncertainty in this respect (see
Mikulić, cited above, §§ 64 and 65). On the
other hand, as stated above, a presumed father's interest to be
protected from stale claims concerning facts that go back many years
cannot be denied (see paragraph 51 above). Finally, in addition to
that conflict of interest, other interests may come into play, such
as those of third parties, essentially the presumed father's family.
While
performing the “balancing of interests test” in
the examination of cases concerning limitations on the institution of
paternity claims, the Court has taken a number of factors into
consideration. For instance, the particular point in time when an
applicant becomes aware of the biological reality is pertinent, that
is, the Court will examine whether the circumstances substantiating a
particular paternity claim are met before or after the expiry of the
applicable time-limit (see, for instance, the cases of Shofman,
§§ 40 and 43 and Mizzi, §§
109-111, concerning disavowal of paternity claims; both cited above).
Furthermore, the Court looks into whether or not an alternative means
of redress exists in the event the proceedings in question are
time-barred. This would include for example the availability of
effective domestic remedies to obtain the reopening of the time-limit
(see, for example, Mizzi, cited above, § 111) or
exceptions to the application of a time-limit in situations where a
person becomes aware of the biological reality after the time-limit
has expired (see Shofman, cited above, § 43).
The
yardstick against which the above factors are measured is whether a
legal presumption has been allowed to prevail over biological and
social reality and if so whether, in the circumstances, this is
compatible, having regard to the margin of appreciation left to the
State, with the obligation to secure effective “respect”
for private and family life, taking into account the established
facts and the wishes of those concerned (see Kroon, cited
above, § 40).
For
example, the Court has found that rigid limitation periods or
other obstacles to actions contesting paternity that apply
irrespective of a putative father's awareness of the circumstances
casting doubt on his paternity, without allowing for any exceptions,
violated Article 8 of the Convention (see, Shofman, cited
above, §§ 43-45; see also, mutatis mutandis,
Mizzi, cited above, §§ 80 and 111-113;
Paulík v. Slovakia, no. 10699/05,
§§ 45-47, ECHR 2006 ... (extracts); and Tavlı
v. Turkey, no. 11449/02, §§ 34-38, 9 November
2006).
In
connection with the above, the Court further reiterates that the
choice of the means calculated to secure compliance with Article 8 in
the sphere of the relations of individuals between themselves is in
principle a matter that falls within the Contracting States' margin
of appreciation. In this connection, there are different ways of
ensuring “respect for private life”, and the nature of
the State's obligation will depend on the particular aspect of
private life that is at issue (see Odièvre, cited
above, § 46; and X and Y v. the Netherlands,
judgment of 26 March 1985, Series A no. 91, p. 12, § 24).
A
comparative examination of the Contracting States' legislation on the
institution of actions for judicial recognition of paternity reveals
that there is no uniform approach in this field. Unlike, however,
proceedings by fathers for the establishment or denial of paternity
(see Shofman, cited above, §§ 37), a significant
number of States do not set a limitation period for children to bring
an action aiming to have paternity established. Indeed, a tendency
can be ascertained towards a greater protection of the right of the
child to have its paternal affiliation established.
In
the States in which a limitation period for bringing such proceedings
exists, the length of the applicable periods vary significantly, the
time-limit running from one up to thirty years. Furthermore, although
there is a difference in the dies a quo of the limitations
periods, in the majority of these States the relevant period is
calculated from either the majority of the child, the birth, or the
existence of a final judgment denying paternity irrespective of the
child's awareness of the facts surrounding its paternal affiliation
and without providing any exceptions. Only a small number of legal
systems seem to have produced solutions to the problem which arises
when the relevant circumstances only become known after the expiry of
the time-limit, for instance, by providing for the possibility of
bringing an action after the time-limit has expired if there was a
material or moral impossibility to lodge it within that period or if
there were good reasons for the delay.
In
the present case the applicant claimed before the domestic courts
that she did not know who her biological father was until her
mother's death in 1997 by which time the statutory time-limit had
already expired. This has not been disputed by the Government who
maintained that the applicant failed to take steps that could have
led her to discover her paternal identity within the time afforded to
her before the proscription of her right (see paragraph 41 above).
The
Court notes that the provisions of the Children Law adequately secure
the interests of a child who learns about his father's identity
within the period provided for by the Law. They do not however make
any allowance for children in the applicant's situation who did not
acquire knowledge of the material facts pertaining to paternity until
after the passing of the three-year period.
The
Court has difficulties in accepting the inflexible limitation period
with time running irrespective of a child's awareness of the
circumstances surrounding its father's identity and without providing
any exceptions to the application of that period (see, mutatis
mutandis, Shofman, cited above, § 43). The main
problem therefore is the absolute nature of the time-limit rather
than its dies a quo as such. In view of the fact that in the
present case the presumed father denied paternity, judicial
proceedings before the Family Court were the only avenue by which the
applicant could establish whether or not he was her biological
father. As a result of this rigid time-limit, as upheld by the
Supreme Court, the applicant was deprived of the possibility of
obtaining judicial determination of paternity. She was deprived of
this right even though she was in a situation where she did not have
any realistic opportunity to go to court at any earlier stage.
In
the Court's view, a distinction should be made between cases in which
an applicant has no opportunity to obtain knowledge of the facts and,
cases where an applicant knows with certainty or has grounds for
assuming who his or her father is but for reasons unconnected with
the law takes no steps to institute proceedings within the statutory
time-limit (see, mutatis mutandis, Yildirim v.
Austria (dec.), no. 34308/96, 19 October 1999 and Rasmussen v.
Denmark, cited above, p. 7, §§ 8 and 10). Furthermore,
the case of Stubbings (cited above) relied on by the
Government can be distinguished from the present case in view of the
nature of the claim in that case and the availability of an
alternative procedure (§§ 65-66). Moreover, although the
present case differs from the situation examined by the Court in
Kroon (cited above) given that in the latter case the parents
were in agreement about the paternity, while in the present case the
presumed father contested the applicant's paternity claim, as in
Kroon, the family relationship at stake in the instant case is
regulated by an irrefutable presumption in the form of a time-limit
with no consideration of the material facts and the social reality
surrounding such situations, in particular the difficulties faced by
a child in acquiring knowledge of the facts surrounding its
conception. Finally, in reply to the Government's argument concerning
the prevention of fabricated claims (see paragraph 39 above), the
Court considers that the genuineness of a paternity claim in any
given case is a matter to be decided by the trial court when
examining the claim.
It
is clear from the Supreme Court's judgment that the general interest
as well as the competing rights and interests both of the presumed
father and his family, were accorded greater weight than the
applicant's right to find out her origins (see paragraph 14 above).
The Court, however, does not consider that such a radical restriction
of the applicant's right to institute proceedings for the judicial
determination of paternity was proportionate to the legitimate aim
pursued. In particular, it has not been shown how the general
interest of the protection of legal certainty of family relationships
or the interest of the presumed father and his family outweighed the
applicant's right of having at least one occasion to seek judicial
determination of paternity. In this connection the Court reiterates
that the Convention is intended to guarantee not rights that are
theoretical or illusory
but rights that are practical and
effective (see Airey v. Ireland, judgment of 9 October
1979, Series A no. 32, p. 12-13, § 24).
Hence,
even having regard to the margin of appreciation left to the State,
the Court considers that the application of a rigid time-limit for
the exercise of paternity proceedings, regardless of the
circumstances of an individual case, and in particular, the knowledge
of the facts concerning paternity, impairs the very essence of the
right to respect for one's private life under Article 8 of the
Convention.
In view of the above, and in particular having regard
to the absolute nature of the limitation period, the Court considers
that a fair balance has not been struck between the different
interests involved and, therefore, that the interference with the
applicant's right to respect for her private life was not
proportionate
to the legitimate aims
pursued.
Accordingly,
the Court finds that there has been a violation of Article 8.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 Convention that she had been
barred from instituting paternity proceedings due to the statutory
three-year limitation period. The aforementioned provision provides
as follows, in so far as relevant:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ... by [a] ...
tribunal...”
A. The parties' submissions
1. The Government
The
Government repeated the same arguments as advanced with regard to
Article 8 of the Convention (see paragraphs 37-41 above). In
addition, the Government relied on the Commission's decision in the
case of X. v. Sweden (cited above) and the Court's judgment in
the case of Stubbings (cited above). They contended that the
three-year limitation period commencing from the date of entry into
force of the Law, rather than the date of acquiring knowledge of the
father's identity following majority, did not restrict or reduce the
applicant's access to court in such a way or to such an extent as to
impair the essence of her right.
2. The applicant
The
applicant submitted the same arguments as advanced with regard to
Article 8 of the Convention (see paragraph 42 above).
B. The Court's assessment
In
view of the grounds on which it has found a violation of Article 8
of the Convention (see paragraphs 61-67 above), the Court considers
that no separate issue arises under this provision.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant submitted that she had suffered both pecuniary and
non-pecuniary damage but did not claim a specific sum in this
respect. With regard to pecuniary damage she submitted that as a
result of the violation of her Convention rights she had been
deprived of her inheritance rights to her father's estate. In this
connection, she noted that she could submit evidence concerning her
father's estate. Furthermore, she argued that the denial of her
rights to seek judicial recognition of paternity had caused her
suffering and distress.
The
Government contested these claims. In particular, they submitted that
the applicant's claims as to pecuniary damage were speculative since
it could not be said that she would have been able to prove her
paternity claim. As regards to the applicant's
claim for non-pecuniary damage, the Government were of the opinion
that the finding of a violation would constitute in itself sufficient
just satisfaction.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It notes in this respect that her
claim under this head is purely speculative as it is based on the
assumption that she would have been successful in the paternity
proceedings if they had not been time-barred. The Court therefore
rejects this claim. However, it considers that the applicant must
have suffered feelings of frustration and distress which cannot be
compensated solely by the finding of a violation. Making an
assessment of an equitable basis, as required by Article 41, the
Court awards the applicant EUR 6,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
The
applicant claimed CYP 1,437.50 for the costs and expenses incurred
before the domestic courts. This sum included CYP 500 for the
procedure before the Family Court, CYP 750 for that before the
Supreme Court and CYP 187.50 as VAT at a rate of 15 % on the above
amounts. She provided the Court with an invoice in this respect. The
applicant, who received legal aid from the Council of Europe for her
representation in the present case for the proceedings before the
Court, did not seek reimbursement of the relevant costs.
The
Government contested the applicant's claim for costs and expenses
incurred before the domestic courts. In this respect, they submitted
that the applicant had not furnished evidence of the legal costs
actually incurred and of their amount. They considered that the
invoice was not sufficient in this respect.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum (see Iatridis v. Greece (just satisfaction) [GC], no.
31107/96, § 54, ECHR 2000-XI). This may include domestic legal
costs actually and necessarily incurred to prevent or redress the
breach of the Convention (see, for example, I.J.L. and Others v.
the United Kingdom (just satisfaction), nos. 29522/95, 30056/96
and 30574/96, § 18, 25 September 2001).
In
the present case, the Court observes that the invoice refers to a
lump sum for each set of domestic proceedings, with no indication of
the rate charged and the time spent by the lawyer or any details
concerning in and out-of-court expenses. Notwithstanding this, it is
clear that the applicant did incur costs concerning the domestic
proceedings. The Court considers, having regard to the nature of
these proceedings that the amount claimed is reasonable as to
quantum. Accordingly, it awards the sum claimed in full.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of
Article 8 of the Convention;
Holds that it is not necessary to examine
separately the applicant's complaint under Article 6 § 1 of
the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable on this amount;
(b) EUR
2,496.41(two thousand four hundred and ninety-six euros and forty-one
cents) in regard of costs and expenses;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Nina Vajić
Registrar President
