European Court of Human Rights

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34441/05
by Esterella REMMERSWAAL and Others
against the Netherlands

The European Court of Human Rights (Third Section), sitting on

9 September 2008 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,

Having regard to the above application lodged on 22 September 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Esterella Remmerswaal, Ms Esther Anna Remmerswaal-Berg, Mr Andreas Johannes Remmerswaal, Mr Johannes Petrus Maria Remmerswaal, Mr Bernardus Johannes Remmerswaal, Ms Johanna Margaretha Maria Remmerswaal, Mr Cornelis Petrus Maria Remmerswaal and Ms Margaretha Johanna Cornelia Remmerswaal, are Netherlands nationals who live in Den Haag, Pijnacker, Pijnacker, Maassluis, Bleiswijk, Berkel en Rodenrijs, Pijnacker and Nootdorp respectively. They were represented before the Court by Mr J.H. van Gelderen, a lawyer practising in Den Haag.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are all close relatives of Mr Remmerswaal. Until 1998 he was married to Mrs A, and a daughter – the first applicant – was born out of this marriage in 1986.

Since 1991, Remmerswaal had an extramarital relationship with Ms Z. who fell pregnant in 1995. She decided to keep the child and informed Remmerswaal accordingly. On 11 October 1995, she gave birth to a boy, Y.

In May 1997, Remmerswaal informed A. of the existence of Y. and told her that he was the father. Remmerswaal and A. divorced shortly after. Their daughter stayed with A.

On 6 April 2000, Remmerswaal died.

On 9 October 2000, Z. filed a request on behalf of Y. with the Zutphen Regional Court (rechtbank) for a declaration of paternity in application of section 1:207 of the Netherlands Civil Code (Burgerlijk Wetboek, “BW”). She claimed that, every Mother’s Day since Y.’s birth, Remmerswaal had sent her flowers and that he had sent them postcards occasionally. He had visited them several times and had supported Z. financially up to an amount of about 8,000 Netherlands guilders (“NLG”)¹ per year. In support of her claims, Z. submitted, inter alia, bank statements, correspondence from Remmerswaal mentioning payments to Z. and twenty photographs showing Remmerswaal with Y. (as well as Z.).

The applicants opposed the request, arguing that granting the requested declaration of paternity would constitute an unjustified interference with their rights under Article 8 of the Convention. In their opinion, such interference would be justified only if there had been family life within the meaning of Article 8 of the Convention between Remmerswaal and Y., which was not the case.

After a DNA test had indicated that Remmerswaal was indeed the father of Y., the Regional Court issued on 3 October 2002 the requested declaration of paternity. It considered that section 1:207 BW did not require the existence of family life within the meaning of Article 8 of the Convention between the begetter and his child. Furthermore, the applicants had not substantiated their claim that the declaration sought interfered with their rights under Article 8, let alone that it would constitute an unjustified interference.

The applicants lodged an appeal with the Arnhem Court of Appeal (gerechtshof). In these proceedings on appeal, Z. submitted further photographs, letters and postcards from Remmerswaal addressed to Y. and/or herself, as well as written statements from herself and her mother explaining the nature of the relationship between Remmerswaal, Y. and Z.

On 26 August 2003 the Court of Appeal confirmed the impugned decision. With regard to the applicants’ claim that the declaration violated their rights under Article 8, the Court of Appeal held that Y.’s interest in obtaining the declaration of paternity outweighed the applicants’ interests.

The applicants’ subsequent appeal in cassation was dismissed by the Supreme Court (Hoge Raad) on 25 March 2005. The Supreme Court found that, contrary to the applicants’ assertions, section 1:207 BW was in conformity with Article 8 of the Convention. It further held that, even if this domestic statutory provision offered more protection to the child than required by Article 8, the legislator was free to do so. According to the Supreme Court, the unwelcome “imposition” of a new family member born out of wedlock could not be regarded as an unjustified interference prohibited by Article 8. As in any event the interest of the child should always prevail over those of the begetter where it concerns establishment of paternity, this applied a fortiori to the begetter’s relatives.

No further appeal lay against this ruling.

B.  Relevant domestic law

Section 1:207 § 1 BW reads as follows:

“The paternity of a man – including when he has died – can be established by the court when the man is the begetter of the child or when the man as partner of the mother has consented to an activity which may have resulted in the child’s conception. A request to establish paternity can be filed by:

a. the mother, unless the child has reached the age of sixteen;

b. the child.”

The Explanatory Memorandum (Memorie van Toelichting) to this provision states that a declaration of paternity can be seen as the last resort to obtain the establishment of a legal family tie between a child and its father; not only in a situation where the begetter does not want to recognise the child, but also in a situation where the begetter has died and is thus no longer capable of recognising paternity. A failure to provide in such cases for the possibility of obtaining a judicial declaration of paternity (which exists in neighbouring legal systems) in domestic law would be contrary to Article 8 (in conjunction with Article 14) of the Convention in that it would allow the paternity of a child to remain undetermined (Kamerstukken (Parliamentary Documents) II, 1995-1996 session, 24, 649 no. 3, p. 8).

COMPLAINT

The applicants complained that the issuance of the declaration of paternity violated their right to respect for their private and family life as guaranteed by Article 8 § 1 of the Convention, in that they were forced to accept a new legal family tie with Y, whereas no family life had ever existed between Remmerswaal and Y. In this context they considered that the legislator in the wording of Section 1:207 BW had unjustly omitted to take into account the fundamental rights and interests of others, such as themselves.

THE LAW

Relying on Article 8 of the Convention, the applicants complained that the judicial declaration of Remmerswaal’s paternity of Y. unjustly interfered with their family and private life. Article 8 reads, in so far as relevant:

“1. Everyone has the right to respect for his private and family life ....

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 ... for the protection of the rights and freedoms of others.”

The Court does not consider it necessary to determine whether the relationship between Remmerswaal and Y. constituted family life within the meaning of Article 8 of the Convention. It accepts that the discovery of Y.’s existence and Remmerswaal’s paternity of Y., and the latter’s consequent biological kinship with the applicants, may have had a certain impact in the private and family sphere of the applicants. However, it fails to see how the (mere) formal declaration of Remmerswaal’s paternity of Y., which had been objectively established through DNA testing, impinged on the exercise of the applicants’ right to respect for their family and private life within the meaning of Article 8 of the Convention.

As to the applicants’ argument that in section 1:207 BW the fundamental rights of third parties are unjustly ignored, the Court reiterates that it is not its task to assess in abstracto the legal theory underlying a piece of legislation. It must limit its examination to the question as to whether or not the application of the law in the particular circumstances of the case resulted in a violation of the applicants’ rights under the Convention (see Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, § 65, 12 January 2006).

However, as already found above, in the present case there was no interference with the applicants’ rights under Article 8.

It follows that the application must be rejected for being manifestly ill founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Josep Casadevall
Deputy Registrar President