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BACKLUND v. FINLAND - 36498/05 [2010] ECHR 1061 (6 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1061.html
Cite as:
[2010] ECHR 1061
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FOURTH
SECTION
CASE OF BACKLUND v. FINLAND
(Application
no. 36498/05)
JUDGMENT
(merits)
STRASBOURG
6 July 2010
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 Backlund v.
Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 36498/05) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Finnish national, Mr Sven Backlund (“the
applicant”), on 11 October 2005.
The
applicant was represented by Mr Kenneth Peth, a lawyer practising in
Närpes. The Finnish Government (“the Government”)
were represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
The
applicant alleged, in particular, that the time-limit for
establishing the paternity of children born before the entry into
force of the new Paternity Act on 1 October 1976 gave rise to a
violation of his rights under Articles 8 and 14 as he could not have
paternity established, despite conclusive DNA tests, while children
born after 1 October 1976 did not face any such restrictions.
On
28 April 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1937 and lives in Norrnäs.
The
applicant was born out of wedlock. His mother, grandmother and
everyone around him always considered N.S. as his father. N.S. never
married or had other children.
On
1 October 1976 the Paternity Act came into force.
The transitional provisions in the Implementing Act of the Paternity
Act state that paternity proceedings with regard to a child born
before the entry into force of the law had to be initiated within
five years, that is, before 1 October 1981. Moreover, no claim could
be examined after the death of the father. No such restrictions exist
for children born after the entry into force of the Paternity Act.
N.S.
was placed under guardianship in 2000.
In
May 2002 the applicant requested the Korsholm District Court
(käräjäoikeus, tingsrätten) to establish
paternity. The court ordered DNA tests, which established with 99.4 %
certainty that N.S. was the applicant's biological father.
On
7 April 2003 the District Court dismissed the applicant's claim. It
found that as the applicant was born before the entry into force of
the Paternity Act, he should have lodged his claim within the
time-limit of five years, that is, before 1 October 1981. As he had
lodged his claim only in May 2002, his claim was time-barred.
The
applicant appealed to the Vasa Appeal Court (hovioikeus,
hovrätten) claiming, inter alia, that the paternity
of N.S. could not be established otherwise as, due to his state of
health, he could no longer make a legally valid acknowledgement of
paternity with respect to the applicant. This fact would place the
applicant in a worse position vis-à-vis the children
who were born after the entry into force of the Paternity Act. N.S's
guardian supported the claim to have paternity established.
N.S.
died in March 2004 while the case was pending before the Appeal
Court. The inventory of his estate was made in June 2004. The estate,
worth some 140,500 euros, was divided among N.S.'s siblings and their
heirs.
On
8 July 2004 the Appeal Court dismissed the applicant's appeal.
The
applicant appealed to the Supreme Court (korkein oikeus, högsta
domstolen), reiterating his grounds of appeal already presented
before the Appeal Court.
On
14 April 2005 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions
The
Constitution of Finland (perustuslaki, grundlagen, Act
no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to
everyone equality before the law and forbids discrimination of any
kind:
“Everyone is equal before the law.
No
one shall, without an acceptable reason, be treated differently from
other persons on grounds of sex, age, origin, language, religion,
conviction, opinion, health, disability or other reason that concerns
his or her person. ...”
Article
21, paragraph 1, of the Constitution guarantees to everyone the right
to have one's case dealt with by a court of law:
“Everyone has the right to have his or her case
dealt with appropriately and without undue delay by a legally
competent court of law or other authority ...”
Article
106 of the Constitution gives a court of law the right to give
primacy to the Constitution when the application of an Act would
conflict with the Constitution:
“If, in a matter being tried by a court of law,
the application of an Act would be in evident conflict with the
Constitution, the court shall give primacy to the provision in the
Constitution.”
B. Provisions and practice regulating paternity
According
to section 20 of the Act on Children Born out of Wedlock (laki
avioliiton ulkopuolella syntyneistä lapsista,
lagen om barn utom äktenskap, Act no. 173/1922), a child
born out of wedlock had a father, if a man acknowledged paternity,
but paternity could not be established against a man's will.
According to section 24 of the same Act, such defendant was deemed to
be the person liable to provide child support to the child if he had
had sexual intercourse with the child's mother at the time when the
child was possibly conceived. However, such an action was to be
dismissed if it was manifestly improbable that the child was
conceived as a result of that sexual intercourse.
As
the children born out of wedlock were put in a substantially worse
position than the children born in wedlock, there was a need to
guarantee equal treatment of all children before the law (see
government proposal HE 90/1974). This became the main aim of the
new Paternity Act of 1975 (isyyslaki, lagen om faderskap, Act
no. 700/1975) which repealed the Act of 1922.
Section
3 of the Paternity Act provides that paternity is established either
by acknowledgement or by a court decision. According to section 22,
subsection 1, the child has a right to institute proceedings with a
view to having paternity established.
Section
4 of the Implementing Act of the Paternity Act (laki isyyslain
toimeenpanosta, lagen angående införande av lagen om
faderskap, Act no. 701/1975) provides that the provisions of the
Paternity Act shall also apply if the child was born before the entry
into force of the Act, unless otherwise provided below. Section 5
provides that if a man, pursuant to the Act
on Children Born out of Wedlock, enacted before the entry
into force of the Paternity Act, has committed or been obliged by a
final judgment to pay child support to a child born out of wedlock
who has not the status of an acknowledged child, the provisions in
sections 6 and 7 of this Act shall apply to the investigation of
paternity, actions for the establishment of paternity and the
exercise of the child's right to be heard.
Sections
6 and 7 of the Implementing Act of the Paternity Act provide as
follows:
“The child welfare supervisor shall attend to the
investigation of paternity as provided in the Paternity Act, if a
child born before the entry into force of this Act has not reached
fifteen years of age and the mother or the legal guardian of the
child has expressed a wish that the child welfare supervisor attend
to the investigation of paternity. After a man has acknowledged his
paternity, the provisions in section 5, subsection 2; section 20,
subsection 1; and section 21 of the Paternity Act shall apply to the
obligation of the child welfare supervisor to attend to the
investigation of paternity, and to the enforcement of
acknowledgement.”
“A child or his or her legal guardian shall have
the right of action for the establishment of paternity as provided in
the Paternity Act. The child welfare supervisor shall not be entitled
to exercise the child's right to be heard without a separate
authorisation. Proceedings for the establishment of paternity must be
initiated within five years from the entry into force of the
Paternity Act. However, no proceedings may be instituted if the man
is deceased.”
It
appears from the drafting history of the Paternity Act (see Report of
the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that
considerations of legal certainty underlay the decision to restrict
the right of action. The entry into force of the Act opened up an
opportunity to initiate proceedings that did not exist at the time
when the children in question were conceived. The legislator
considered that putative fathers' legal security required rapid
elimination of uncertainty about possible claims being brought
against them on the basis of the Paternity Act. The restriction that
a man's death prevented the initiation of proceedings was justified
by the argument that in such cases it was usually no longer possible
to obtain sufficient evidence of the man's paternity.
The
Supreme Court has held on several occasions that the five-year
time-limit in question is to be strictly applied (see for example
KKO 2003:107). An exception has been made in a case where
the paternity of the mother's husband had to be annulled first and,
as a result of that, the child would have become fatherless if the
time-limit had been strictly respected (see KKO 1993:58).
In
its precedent case KKO 1982-II-165 the Supreme Court
considered that the five-year time-limit in section 7, subsection 2,
of the Implementing Act of the Paternity Act was not such a
time-limit that could be restored by seeking extraordinary remedies
(menetetyn määräajan palauttaminen, återställandet
av försutten fatalietid).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the time-limit for establishing the
paternity of children born before the entry into force of the new
Paternity Act on 1 October 1976 gave rise to a violation of his
rights under Article 8 as he could not have the paternity
established, despite the conclusive DNA tests. Article 8 of the
Convention reads as follows:
“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
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
A. The parties' submissions
The
applicant maintained that his only possibility to have the paternity
of N.S. established had been by a court decision as his father had
lacked legal capacity and, according to Finnish law, his guardian had
no capacity to do it for him. It had been confirmed by DNA tests
ordered by the District Court that N.S. had been his biological
father. The applicant had not been aware of the five-year time-limit
nor had the Government provided information about it. Moreover, as
the time-limit had been tied to the entry into force of the Paternity
Act, it had been running regardless of a child's circumstances
without any possibility for extensions or exceptions.
The
applicant pointed out that he did not have real opportunity to
initiate paternity proceedings between 1976 and 1981 as his mother
had already passed away in 1967 and blood tests were thus no longer
possible. DNA testing, in which only the father and the child needed
to be tested, had become available only in the 1980s. N.S. had no
other children, and thus there were no siblings whose economic or
other interests would have been at risk.
The
Government accepted that the impossibility for the applicant to have
his father's paternity established after the expiry of the five-year
time-limit had constituted an interference with his private life
under Article 8 of the Convention. The impugned measures had had a
basis in Finnish legislation, namely in section 7, subsection 2, of
the Implementing Act of the Paternity Act.
As
to whether the interference had been “necessary in a democratic
society”, the Government pointed out that the applicant had
been 39 years old when the Paternity Act entered into force in 1976.
The Act was retroactive in order to guarantee equality in law between
children, irrespective of their descent. The time-limit of five years
only concerned cases where the paternity was to be established by a
court decision while it was still possible today for a father to
acknowledge such a child. The aim of the time-limit had been to
ensure a rapid examination of possible claims made against putative
fathers in order to protect their rights and freedoms, and to ensure
legal certainty and finality in family relations. The restriction
concerning a man's death was justified, as in such cases it was
usually no longer possible to obtain sufficient evidence of
paternity.
The
Government pointed out that the applicant had not given any reasons
for not having instituted paternity proceedings during the statutory
time-limit but only twenty years later. The applicant had known, or
at least had had grounds for assuming, who his father was and that
paternity had not been established. Even though the applicant's
father had not been capable of acknowledging him, paternity
proceedings against him could have been initiated within the
statutory time-limit. Moreover, the sufficiency or insufficiency of
blood testing as evidence could only have been established by
initiating paternity proceedings. The reform of family legislation
including the paternity laws had been one of the main legal reforms
in the 1970s and it had been widely publicised. The applicant, being
already an adult at the time, must have been aware of the law reform
and the new possibility to have his alleged father's paternity
established by a court decision. The five-year time limit was thus
proportionate to the legitimate aim pursued, namely the general
interest in protecting legal certainty of family relationships.
B. The Court's assessment
1. Applicability of Article 8 of the
Convention
The
Court notes that 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 his
legal relationship with the person he claimed was his father, through
the confirmation of the biological truth.
The
Court has held on numerous occasions that paternity proceedings fall
within the scope of Article 8 (see Mikulić v.
Croatia, no. 53176/99, § 51, ECHR 2002-I; and Jäggi
v. Switzerland, no. 58757/00, § 25, ECHR
2006-). In the instant case the Court is not called upon to determine
whether the proceedings to establish parental ties between the
applicant and his biological father concern “family life”
within the meaning of Article 8, since in any event the right to know
one's ascendants falls within the scope of the concept of “private
life”, which encompasses important aspects of one's personal
identity, such as the identity of one's parents (see Odièvre
v. France [GC], no. 42326/98, § 29, ECHR 2003-III,
and Mikulić v. Croatia, cited above, § 53). There
appears, furthermore, to be no reason of principle why the notion of
“private life” should be taken to exclude the
determination of a legal or biological relationship between a child
born out of wedlock and his natural father (see, mutatis mutandis,
Mikulić, ibid.; and Jäggi v. Switzerland,
cited above, § 25).
Accordingly,
the facts of the case fall within the ambit of Article 8 of the
Convention.
2. Whether the case involves a positive
obligation or an interference
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 and Others v. the
Netherlands, 27 October 1994, § 31, Series A no. 297 C;
and Mikulić v. Croatia, 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, 26 May 1994, §
49, Series A no. 290; and Kroon and Others v. the
Netherlands, 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
v. Croatia, cited above, § 59; and Hokkanen v.
Finland, 23 September 1994, § 55, Series A no. 299 A).
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.
3. Whether the impossibility to bring
action was “in accordance with the law” and pursued a
legitimate aim
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, he
complained that the time-limit imposed by the Paternity Act prevented
him from having the possibility of obtaining 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 Paternity Act introduced
the right of a child or his or her legal guardian to institute
proceedings for judicial recognition of paternity in the domestic
legal system in 1976. According to the Implementing Act of the
Paternity Act and concerning children born before the entry into
force of the Paternity Act, this right was subject to a five-year
time-limit which started to run from the entry into force of the Act
in 1976. Thus, in the instant case the applicant had until 1 October
1981 to institute paternity proceedings. The applicant, however,
instituted such proceedings only in May 2002 as he claimed that he
had not been aware of the five-year time-limit. His application was
then found to be time-barred.
Moreover,
the impossibility of bringing an action for judicial recognition of
paternity pursued a legitimate aim. The time-limit imposed by the
Implementing Act of the Paternity Act for actions concerning
recognition of paternity was intended to protect the interests of
putative 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, no. 26111/02, § 83, ECHR
2006 I (extracts); Shofman v. Russia, no. 74826/01,
§ 39, 24 November 2005; and, mutatis mutandis,
Stubbings and Others v. the United Kingdom, 22 October 1996, §
51, Reports of Judgments and Decisions 1996 IV).
What
the Court needs to ascertain next is whether the nature of the
time-limit in question, and/or the manner in which it was applied,
was compatible with the Convention.
4. Whether a fair balance was struck
The
Court recalls that it 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, cited
above, § 88; and Rasmussen v. Denmark, 28 November
1984, § 41, Series A no. 87). 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. 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 putative 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 v. France [GC],
cited above, § 42). A person has a vital interest, protected by
the Convention, in receiving the information necessary to uncover the
truth about an important aspect of his or her personal identity and
eliminate any uncertainty in this respect (see Mikulić
v. Croatia, cited above, §§ 64 and 65). On the other
hand, a putative father's interest in being protected from claims
concerning facts that go back many years cannot be denied. Finally,
in addition to that conflict of interest, other interests may come
into play, such as those of third parties, essentially the putative
father's family, and the general interest of legal certainty.
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. The
Court will therefore 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
v. Russia, cited above, §§ 40 and 43; and
Mizzi v. Malta, cited above, §§ 109-11, concerning
disavowal of paternity claims). Furthermore, the Court will examine
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 re-opening of the time-limit (see, for example, Mizzi v.
Malta, 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
v. Russia, 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 and
Others v. the Netherlands, 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 v. Russia,
cited above, §§ 43-45; see also, mutatis mutandis,
Mizzi v. Malta, cited above, §§ 80 and 111-13;
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 v. France [GC],
cited above, § 46; and X and Y v. the Netherlands, 26
March 1985, § 24, Series A no. 91).
In
connection with the examination of the case Phinikaridou v. Cyprus
(no. 23890/02, ECHR 2007 XIV (extracts)), the Court made a
comparative study of the Contracting States' legislation on the
institution of actions for judicial recognition of paternity. This
study revealed that there was no uniform approach in this field.
Unlike proceedings by fathers for the establishment or denial of
paternity (see Shofman v. Russia, cited above, § 37),
a significant number of States did not set a limitation period for
children to bring an action aimed at having paternity established.
Indeed, a tendency could be observed 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
existed, the length of the applicable period varied significantly,
the time-limit varying between one and thirty years. Furthermore,
although there was a difference in the dies a quo of the
limitation period, in the majority of these States the relevant
period was calculated from the child's majority, 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 seemed to have produced solutions to the problem which arises
when the relevant circumstances become known only 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 of lodging it within that period or
if there were good reasons for the delay.
Turning
to the present case, the Court notes that the provisions of the
Paternity Act adequately secure the interests of a child whose father
acknowledges him or her, or who is born after the entry into force of
the Paternity Act, or who is born before and is able to prove the
paternity of the alleged father within the period provided for by the
Act. They do not, however, make any allowance for children in the
applicant's situation: even though the applicant could have the
alleged paternity biologically confirmed in a scientifically reliable
manner, he could not have it legally confirmed by the courts as the
five-year period had elapsed.
The
Court can accept that, as the applicant was an adult during the
five-year period, he should have brought the paternity proceedings
during that time-limit. Taken into consideration that the new
paternity legislation was one of the most fundamental law reforms in
the 1970s and that it was widely publicised, the Court puts no
emphasis on the applicant's alleged ignorance of the statutory
time-limit. However, the Court has difficulties in accepting the
inflexible limitation period with time running irrespective of a
child's ability to provide reliable evidence, and without providing
any exceptions to the application of that period (see, mutatis
mutandis, Shofman v. Russia, cited above, §
43). In the present case, even though the applicant was able to
present a DNA test indicating with conclusive certainty that N.S. was
his biological father, he was deprived of the possibility of having
this fact legally confirmed (see, mutatis mutandis,
Phinikaridou v. Cyprus, cited above, § 62; and Turnalı
v. Turkey, no. 4914/03, § 44, 7 April 2009). The Court
finds it difficult to accept that the national authorities allowed
the legal reality to contradict the biological reality by relying on
the absolute nature of the time-limit even though the applicant had
put forward new conclusive evidence (see Paulík v.
Slovakia, cited above, § 46).
Moreover,
the Court notes that national legislation did not provide any
alternative means of redress as the time-limit could not as such be
restored by seeking extraordinary remedies. Nor had the Supreme Court
agreed to any exceptions to the application of the time-limit in
question except in one exceptional case.
It
is clear that in the Supreme Court's practice (see for example case
KKO 2003:107) the general interest as well as the competing
rights and interests both of a putative father and his family have
been accorded greater weight than a child's right to have its origins
legally confirmed. In the present case, however, the national courts
did not make any attempt to balance the competing interests but only
concluded that the applicant's claim was time-barred. Thus, the
national courts did not consider at all whether or not the general
interest in protecting legal certainty of family relationships or the
interest of the father and his family outweighed the applicant's
right to have an opportunity to seek a judicial determination of
paternity. The Court considers that such a straightforward
restriction of the applicant's right to institute proceedings for the
judicial determination of paternity is not proportionate to the
legitimate aim pursued. 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, 9 October 1979, §
24, Series A no. 32).
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 obligation
to take action within that time-limit, 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 and the Supreme Court's refusal to
allow any exceptions thereto, the Court finds that a fair balance has
not been struck between the different interests involved and,
therefore, that there has been a failure to secure the applicant's
right to respect for his private life.
Accordingly,
the Court finds that there has been a violation of Article 8.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
The
applicant also complained that the five-year time-limit set in
national legislation amounted to discrimination against him in
comparison with children born after the entry into force of the
Paternity Act. He referred to Article 14 of the Convention which
reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court observes that at the heart of this part of the application is
the impossibility for the applicant to have his biological father's
paternity legally confirmed. The Court has examined this issue above
under Article 8 of the Convention and has found a violation of this
Article. In view of those findings it finds it unnecessary to examine
the facts of the case separately under Article 14 taken in
conjunction with Article 8 of the Convention.
III. 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 claimed 140,500.20 euros (EUR) plus interest in respect of
pecuniary damage (lost share of his father's estate) and EUR 7,000
plus interest in respect of non-pecuniary damage.
The
Government considered that there was no causal link between the
alleged violation of Articles 8 and/or 14 of the Convention and any
pecuniary damage suffered. In any event, this kind of assessment of
the pecuniary damage was speculative and could not be accepted as
such. Were the Court to find a violation, the Government suggested
that the question of pecuniary damage be reserved. As to the
non-pecuniary damage, the Government considered the applicant's claim
too high as to quantum and that, in any event, the
compensation for non-pecuniary damage should not exceed EUR 1,000 in
total.
As
to the pecuniary damage, the Court considers that the question of the
application of Article 41 is not ready for decision. Accordingly, it
shall be reserved and the subsequent procedure fixed having regard to
any agreement which might be reached between the parties (Rule 75
§ 1 of the Rules of Court). As to the non-pecuniary damage, the
Court awards the applicant EUR 6,000.
B. Costs and expenses
The
applicant also claimed EUR 739.35 for the costs and expenses incurred
before the domestic courts and EUR 8,669.57 for those incurred before
the Court.
The
Government had no comments concerning the costs and expenses incurred
before the domestic courts. As to the costs and expenses incurred
before the Court, the Government considered that costs for copying
and faxing were included in counsel's invoice and that the hourly
rate was somewhat high. In any event, the total amount of
compensation for costs and expenses should not exceed EUR 5,500
(inclusive of value-added tax).
According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 6,000 covering costs
under all heads.
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
Declares the application admissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds that it is not necessary to examine
separately the complaint under Article 14 of the Convention taken in
conjunction with Article 8;
Holds that the question of the application of
Article 41 is not ready for decision in so far as the applicant has
claimed pecuniary damage and accordingly,
(a) reserves the said question;
(b) invites the Government and the applicant to
submit, within six months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the
Convention, their written observations on the matter and, in
particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates
to the President of the Chamber the power to fix the same if need be.
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, the following
amounts:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
6,000 (six thousand euros), plus any tax that may be chargeable to
him, in respect of costs and expenses;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
