CASE OF KALACHEVA v. RUSSIA
(Application no. 3451/05)
7 May 2009
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 Kalacheva v. Russia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 14 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“...Blood sampling for the expert report was entrusted to the Bureau of forensic-medical examinations in the Astrakhan Region...
According to the Instruction on organisation and production of expert examinations in Bureaus of forensic medical examinations, blood samples must be packed individually... An envelope must be supplied, with identifying information (on the basis of an identity document) and signatures of a medical worker who took the blood samples and two medical workers who were present during this procedure...
On the envelopes with the blood samples of Mr A., Ms Kalacheva and Ms K.D. [the applicant’s daughter] there are no data based on the identity documents of the above persons. Moreover, there are only two signatures on the envelopes, one of which belongs to a person who took the blood samples...
Taking into account that the blood samples were collected with serious violations of the Instruction..., the court is critical of the expert conclusion, since it cannot exclude the possibility that the blood samples received by the experts were not those collected from the parties.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
15. An expert conclusion is not binding upon the court, and shall be evaluated by the court according to the rules stated in Article 67 of this Code. If the court disagrees with the expert conclusion, it shall explain its reasons in its decision (Article 86 § 3 of CCP). In case of doubt as to the accuracy or reasonableness of the expert conclusion, a court may order a second expert opinion to be prepared by other experts (Article 87 § 2 of CCP).
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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 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.”
1. Parties’ submissions
(a) The applicant
23. The applicant stressed that the Kirovskiy Court had had clear and convincing evidence of A.’s paternity, but had failed to give due consideration to all the circumstances of her case and had shown a lack of respect for her private life. It is unclear what other evidence she could present, also given that she and A. had concealed their relationship.
(b) The Government
2. The Court’s assessment
(a) Applicability of Article 8 of the Convention
(b) Compliance with the requirements of Article 8 of the Convention
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable on that amount; and
(ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on that amount;
(b) 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;
Done in English, and notified in writing on 7 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.