AS TO THE ADMISSIBILITY OF
by Orde MIRCESKI
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 10 March 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 18 April 2006,
Having deliberated, decides as follows:
The applicant, Mr Orde Mirceski, is a Macedonian national who was born in 1970 and lives in Skopje. He was represented before the Court by Mr Z. Gavriloski, a lawyer practising in Skopje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Divorce proceedings
On 5 February 2004 the applicant applied to the Skopje Court of First Instance seeking dissolution of his marriage to Ms N. due to marital problems.
On 29 September 2004 Ms N. gave birth to a daughter. That fact was brought to the applicant's attention on 1 October 2004. At the meeting of 1 November 2004 scheduled before the Social Care Centre for reconciliation of the spouses, the applicant denied that the child was his. He claimed to have been separated from his wife since she left the house (7 January 2004) and not to have been intimate for some months before that date. He confirmed that statement at the next meeting dated 15 November 2004. In the meantime, the applicant was recorded in the birth register as the child's father. In his submissions of 24 February 2005, the applicant reiterated his doubts that he was the child's biological father. In support, he stated that he had not been intimate with Ms N. for over 300 days before the child was born.
On 29 March 2005 the Skopje Court of First Instance accepted the applicant's action and declared the marriage dissolved. It also ordered the applicant to pay 25% of his monthly salary as child maintenance. The court addressed the applicant's denial of being the child's biological father and confirmed that he had not still brought an action contesting the paternity, but that he had applied to the Supreme Court requesting a new time-limit to do so. It concluded accordingly that money paid in child maintenance might be recovered by the applicant if he successfully challenged his paternity in separate proceedings, if any.
On 7 September 2005 the Skopje Court of Appeal upheld that decision.
On 6 December 2005 the public prosecutor informed the applicant that there were no grounds for lodging with the Supreme Court a request for the protection of legality.
2. Proceedings concerning the applicant's request to contest the paternity of the child within a new time-limit
On 4 February 2005 the applicant requested, under section 68 of the Family Act (see “Relevant domestic law”, below), the Supreme Court to determine a new time-limit to disavow the paternity of the child. He reiterated his earlier observations made in the divorce proceedings and added that on 12 and 17 January 2005 he had undergone two sperm tests, which indicated that it was of poor quality. He further stated that that evidence had not existed within the time-limit set forth in section 67 § 2 of the Family Act (see “Relevant domestic law”, below). That request was communicated to Ms N. for comments.
On 23 March 2005 the Supreme Court dismissed the applicant's request as having been based on the sperm tests only. It stated that no diagnosis had been provided that would attest the applicant's infertility. It therefore concluded that there was no indication that the applicant was not the child's father.
On 27 May 2005 the applicant made a fresh request to the Supreme Court. He referred to the reconciliation proceedings before the Social Care Centre in which he had contested his paternity. In addition to the earlier sperm tests, the applicant provided three fresh sperm tests made between 22 March and 22 April 2005 and two analyses. The diagnosis indicated in the medical reports of 25 and 26 April 2005 issued by two different medical institutions was “asthenozoospermia” and “sterilitas”. In vitro fertilisation was suggested to the applicant. Ms N. was invited to present her arguments in reply.
On 14 September 2005 the Supreme Court dismissed the applicant's request, finding that it was based on the same evidence as his earlier request. It ruled that the medical reports and diagnosis did not sufficiently support the applicant's request. The applicant stated that he was served with this decision on 20 October 2005.
B. Relevant domestic law
According to section 53 of the Family Act (“the Act”, consolidated version of 12 November 2004) a husband is regarded as the father of a child born to his wife during wedlock or within 300 days of a divorce.
Under section 67 §§ 1 and 2 of the Act, the husband can contest the paternity of a child born to his wife during wedlock or within 300 days of a divorce. In this connection, an action can be submitted within three months of the day when the husband learned of the child's birth.
Section 68 § 1 of the Act provides that the husband can request the Supreme Court to specify a new time-limit for disclaiming of the paternity if new facts or evidence are discovered after the expiration of the time-limit specified in section 67 § 2 of the Act which cast doubts that he is the father of a child born to his wife.
The applicant complained under Article 6 of the Convention that the Supreme Court had not been impartial and that he had not been given an opportunity to comment on Ms N.'s submissions. He also complained under this head about the work of the Social Care Centre. He further alleged that the Supreme Court's decision had affected his rights under Article 8 of the Convention. Relying on Article 13, he alleged lack of an effective remedy. Lastly, he complained under Article 5 of Protocol No. 7.
“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.”
The Court reiterates that, according to its established case-law, the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see, mutatis mutandis, Merger and Cros v. France (dec.), no. 68864/01, 11 March 2004; Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-52; and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65-67).
The Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned, but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, cited above, § 69, and Aksoy, cited above, §§ 53 and 54).
Turning to the present case, it is clear from the statements made by the applicant in the reconciliation proceedings as early as 1 November 2004, that is, one month after he was informed of the birth of the child, that he had doubts as to whether he was the biological father. However, he failed to bring an action for rejection of paternity within three months of the day when he learned of the child's birth, that is within the time-limit provided by section 67 § 2 of the Act. He has therefore failed to exhaust the remedies available to him under domestic law.
It is true that the applicant later, under section 68 of the Act and by reference to purportedly new evidence, requested the Supreme Court to determine a new time-limit to disavow the paternity of the child. However, in the context of the present case, where the applicant had been aware of the doubts as to his paternity and could have brought an ordinary action (and unlike the cases of Shofman v. Russia (no. 74826/01, § 45, 24 November 2005 and Mizzi v. Malta (no. 26111/02, § 114, ECHR 2006, in which the respective applicants had no real opportunity to claim that they were not the fathers), those proceedings were no more than attempts to bring proceedings out of time, and do not give rise to fresh “final decisions” within the meaning of Article 35 § 1 of the Convention. Even if the applicant's first application to the Supreme Court were to be considered as giving rise to his complaint under Article 8 of the Convention, the Supreme Court finally disposed of it on 23 March 2005, which is more than six months before the present application was introduced with the Court.
In these circumstances, the Court concludes that the applicant has not exhausted domestic remedies. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 5 of Protocol No. 7
“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”
In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that these complaints did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Rait Maruste