European Court of Human Rights

Information Note on the Court’s case-law No. 117

Anakomba Yula v. Belgium - 45413/07

Judgment 10.3.2009 [Section II] See: [2009] ECHR 2282 (French Text)

Article 14

Discrimination

Unlawfully resident alien refused legal aid for contesting paternity of her child: violation

Facts: The applicant was unlawfully resident in Belgium. She applied for regularisation of her residence status, partly because she and her husband, a Congolese national, had separated, and partly because the couple’s children, who were legal residents, lived with her. Her application was also based on the fact that the biological father of her youngest child was a Belgian national, but could not acknowledge paternity because the applicant had been married when the child was born. The only solution was for her to bring an action against her husband, within a year of the child’s birth, to contest his paternity of the child. With the aid of secondary legal assistance she lodged an application with the court of first instance, in conformity with the Judicial Code, requesting legal aid so that she would not have to pay various costs amounting to approximately EUR 1,360. Her application was rejected because she was not lawfully resident in Belgium, and the purpose of the proceedings concerned was not to regularise her situation, so she did not meet the conditions of entitlement to legal aid. She appealed. The court of appeal upheld the lower court’s decision, noting that the difference in treatment provided for in the Judicial Code was based in this case on an objective criterion, namely lawful residence in Belgium, that it was reasonable, proportionate to the aim pursued in so far as it applied only where there were no agreements with non-member States of the Council of Europe providing for their nationals to receive legal aid, and fell outside the provisions of the Judicial Code. The applicant therefore needed to regularise her situation before claiming any legal aid she might be entitled to in proceedings to contest paternity. She asked the public prosecutor’s office to appeal on points of law but it did not consider it necessary. To prevent the action to contest paternity from being time-barred, the applicant and her husband jointly filed an application to appear voluntarily before the court of first instance. The registration fee was EUR 82. The court found in the applicant’s favour, considering that she had adduced the proof of non-paternity required under Congolese law. However, without giving any specific reason, it ordered her to pay the costs. The judgment was served on the applicant’s husband by a bailiff, whose fees amounted to EUR 206.17.

Law: The court of first instance rejected the applicant’s request for legal aid to cover the cost of proceedings in her action to contest paternity. It found that the applicant was not lawfully resident in Belgium, and the purpose of the proceedings concerned was not to regularise her situation, so she did not meet the conditions of entitlement to legal aid under Article 668 of the Judicial Code. That Article provided for legal aid to be granted to nationals of States which had concluded treaties with Belgium, nationals of Council of Europe member States, persons lawfully resident in Belgium or a European Union member State and those requesting aid in connection with proceedings concerning their entry, residence or settlement in, or expulsion from, Belgium. When the applicant appealed, the court of appeal upheld the

first-instance decision, noting that the difference in treatment provided for in the Judicial Code was based on an objective criterion, namely, lawful residence in Belgium, and was reasonable in that it required a minimal tangible connection with Belgium, in conformity with the law on the entry, residence, settlement and expulsion of aliens. The applicant had been ordered to pay EUR 288.17, to cover the registration of her action and service of the judgment, although she was without means.

The case before the domestic courts had concerned serious issues related to family law that were decisive not only for the applicant but also for other individuals. There ought to have been particularly compelling reasons to justify the difference in treatment between individuals with a residence permit and those without, like the applicant. Particularly as the Judicial Code did not make entitlement to free legal advice – which the applicant had received – conditional on lawful residence. Furthermore, the applicant’s residence permit had expired a month and a half after her daughter’s birth and, before it expired, she had already taken steps to regularise her situation in line with her family life in Belgium, the father of her child being a Belgian national. Lastly, it had been essential to act quickly, since actions to contest paternity had to be lodged before the child’s first birthday. In the light of the above, the Court considered that the State had failed in its obligation to regulate the right of access to a court in a manner that was compatible with the requirements of Article 6 § 1, taken together with Article 14.

Conclusion: violation (unanimously).

Article 41 – EUR 288.17 in respect of pecuniary damage.

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This summary by the Registry does not bind the Court.

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