CASE OF LAAKSO v. FINLAND
(Application no. 7361/05)
15 January 2013
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 Laakso v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional and other provisions
“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. ...”
“Everyone’s private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act.”
“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 ...”
“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.”
“A minor who has attained fifteen years of age shall have an independent right of action and right to be heard in a matter concerning his or her person, parallel to that of the person responsible for his or her care and custody or his or her other legal representative.”
B. Provisions and practice regulating paternity
“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 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.”
“27. As described above in points 11 and 12, according to the interpretation of the European Court of Human Rights an application of restrictions of right to institute paternity proceedings may lead to a violation of the right to respect for private life protected by Article 8 if such restrictions in practice prevent the fact of clarifying a person’s biological father and the confirmation of the paternity. This may have been the case in situations in which a person has not had a real opportunity, due to reasons beyond his or her control, to clarify the identity of his or her biological father and to have the paternity confirmed by a court within the time-limit.
28. According to the case-law of the European Court of Human Rights the assessment whether reasons favouring the granting of the right of appeal weigh heavier than the reasons speaking against it, must be made in casu and with an intent to reach a fair balance between the competing interests. The case-law does not give a direct guidance on what issues the assessment needs to be based from the point of view of the putative father’s and his family’s interests and general legal certainty. The scope of the domestic margin of appreciation, as it appears from the current case-law of the Court, remains in practice narrow. The Supreme Court considers that the in casu assessment applied by the European Court of Human Rights means that the aims of legal security and the protection of the prevailing circumstances, which normally relate to the restricting of the time allowed to institute an action, remain to a large extent unattained.
29. A paternity can currently be clarified with the help of DNA tests with considerable certainty and without significance being given to the passage of time in gathering evidence on the paternity. This ground, which led to the imposition of the time-limit in section 7, subsection 2, of the Implementing Act [of the Paternity Act], has thus lost its significance. Knowing one’s biological origin and its judicial confirmation and pronouncement are, according to the current knowledge, important parts of a person’s identity and therefore fall to the core areas of protection of private life, guaranteed by Article 10 of the Constitution and Article 8 of the Convention. The passage of time does not mean either that a child’s need to know his or her both parents and to have the paternity confirmed would disappear but it may even grow. Legal security and the long prevailed legal state of affairs, which has not been the result of a child’s conscious and free choice, are not as such sufficient grounds to support that a child should not be able to institute paternity proceedings after the time-limit has expired. In such situation the non-confirmation of the paternity requires that in that particular case there are very strong factual counter reasons relating to the putative father’s or to other persons’ rights.
30. On the above grounds the Supreme Court considers that a principle emerges from the case-law of the European Court of Human Rights that a child has, except in special circumstances, a right to know who his or her biological father is and to have a case concerning confirmation of a such legal status examined by a court, at least once. Such principle cannot currently be regarded as unclear or subject to interpretation. At the same time these rights concerning a person’s origin and identity clearly fall within the scope of protection of private life guaranteed by Article 10 of the Constitution.
31. The Supreme Court considers that the application of the time-limit in section 7, subsection 2, of the Implementing Act in cases in which legal or factual reasons have prevented the institution of paternity proceedings in due time, can therefore lead to an evident conflict with the Constitution. In such situation a court must, in accordance with Article 106 of the Constitution, give primacy to the constitutional provision.
32. In Finland a legal relationship to a father can be confirmed only, according to the Paternity Act, by acknowledgement or by a court decision. Any legal effects which are based on other legislation cannot be restricted in the context of the confirmation of the paternity but they are to be decided, if need be, separately. Nor is imposing restrictions justified in the present case as the expressly mentioned main aim of the Paternity Act is the realisation of the legal equality of children. One has to take into account also the principles of Article 6 of the Constitution, according to which everyone is equal before the law and no one shall, without an acceptable reason, be treated differently from other persons on grounds of origin or other reason that concerns his or her person.”
In the case at hand the provision concerning the five-year time-limit was therefore left inapplicable on the strength of Article 106 of the Constitution and paternity was confirmed.
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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.”
1. The parties’ submissions
2. The Court’s assessment
a. Applicability of Article 8 of the Convention
b. Whether the case involves a positive obligation or an interference
c. Whether the impossibility to bring an action was “in accordance with the law” and pursued a legitimate aim
d. Whether a fair balance was struck
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
“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.”
III. REMAINDER OF THE APPLICATION
IV. 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
1. Declares unanimously the complaints under Articles 8 and 14 of the Convention admissible and the remainder of the application inadmissible;
2. Holds by five votes to two that there has been a violation of Article 8 of the Convention;
3. Holds unanimously that it is not necessary to examine separately the complaint under Article 14 of the Convention taken in conjunction with Article 8;
4. Holds by five votes to two
(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 5,000 (five 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;
5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Ineta Ziemele
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Judge De Gaetano;
(b) partly dissenting opinion of Judge Wojtyczek.
PARTLY DISSENTING OPINION OF JUDGE DE GAETANO
1. I regret that I cannot agree with the majority that in this case there was a violation of Article 8. In my view the facts disclose at best only ignorance of the law on the part of the applicant, and at worst carelessness on his part which, given the publicity leading up to and subsequent to the enactment of the Paternity Act, can only be described as carelessness of a very high degree.
2. This was not the typical case where up to the time of the expiry of the period within which the action for filiation could be brought, the applicant was unaware of who was his or her biological father; or merely suspected that a particular person was or could be his or her biological father; or was otherwise impeded from bringing the action by an “unavoidable” obstacle, physical or otherwise. In the instant case the applicant positively knew that K.R. was his father, and this well before the law came into force. The only argument brought by the applicant is that he was not aware that, in spite of K.R. paying child support as ordered by a court, the said K.R. had not been legally registered as his father. In other words he was under the mistaken belief that as the domestic court had confirmed K.R.’s liability for the payment of child support, paternity had been legally established. This, to my mind, is a mistake of law, that is a mistake as to the legal consequences of the court’s decision on child support. This mistake was in any case easily avoidable if only the applicant had bothered to consult a lawyer. As the Helsinki Court of Appeal held (§ 12) no legal impediment had prevented the applicant from initiating proceedings within the five-year time-limit. In other words the applicant had only himself to blame - imputet sibi - for the situation in which he found himself after the expiry of the five-year transitional period.
3. As this Court has had occasion to state, “...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” (Phinikaridou v. Cyprus, no. 23890/02, § 52, 20 December 2007). The instant case is certainly not one where a legal presumption has been allowed to prevail in unreasonable circumstances over biological and social reality - the period of limitation was reasonable in length and pursued a legitimate aim, and the applicant was aware of the biological and social reality. Time-limits, which in themselves are designed to secure the proper administration of justice in compliance with the principle of legal certainty (Mizzi v. Malta, no. 26111/02, § 83, ECHR 2006-I (extracts)), cannot be circumvented by the spurious argument that one was not aware of what the law said or provided, or was not aware of the legal effects or consequences of certain decisions (like the “incorrect perception” - see § 52 - as to the court order to pay child support). Even in Backlund v. Finland (no. 36498/05, 6 July 2010) the Court was quick to dismiss “the applicant’s alleged ignorance of the statutory time-limit” (see § 53 of that judgment), although it then went on (wrongly, in my view) to find a violation of Article 8.
4. In the instant case, while I am prepared to subscribe to the judgment (on the Article 8 issue) as far as § 49, I am unable to agree with the reasoning and conclusion in §§ 50 to 56. In particular neither the fact that many States do not set a time-limit for an action for filiation (§ 52), nor the fact that the Finnish courts did not have the possibility to “balance the competing interests” (§§ 53 and 55), are relevant to the issue at hand. Had the Finnish courts carried out this balancing exercise, they should nonetheless have dismissed the applicant’s request because a “fair balance was struck” in this case - the applicant had only himself to blame for ignoring the law.
5. This judgment could be read as not only condoning ignorance of the law and carelessness, but also rewarding it with EUR 6,000.
PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK
1. I respectfully disagree with the majority view that there has been a violation of Article 8 of the Convention in the present case. At the same time, I fully share the concerns expressed by Judge De Gaetano and support the principal arguments developed in his partly dissenting opinion.
2. In the present case, the applicant knew the identity of his biological father. The Helsinki Court of Appeal has established that no legal impediment prevented the applicant from initiating proceedings within the statutory time-limit imposed by Finnish legislation. This time-limit, as applied in the circumstances of the present case, did not deprive the applicant of the possibility of fully exercising his rights protected under the Convention. In this context, I agree with Judge De Gaetano’s view that the applicant has only himself to blame for the situation in which he found himself after the expiry of the five-year transitional period to bring an action for filiation. However, I am not certain whether we can qualify the situation of the applicant as a mistake of law (a mistake as to the content of legislation) or rather as a mistake as to the content of the official registers. This doubt is, nonetheless, irrelevant for the solution of the case.
3. The European legal culture widely recognises the principle vigilantibus leges sunt scriptae. Any legal system is based on the assumption that its addressees should show due diligence as to the official registration or recognition of the existing social and legal realities. This pertains also to family law. The requirement of due diligence is the necessary correlate of the legal recognition of individual freedom and personal autonomy. In other words, freedom and diligence are two sides of the same coin.
Legal certainty in family relationships is a prerequisite for the protection of the right to respect for private and family life enshrined in Article 8 of the Convention. The assumption that every adult is responsible for ensuring that the official registers reflect his family status may not be seen, in principle, as an interference with the rights protected by Article 8 of the Convention.
4. I have doubts about the method of interpretation of the Convention underlying the present judgment. I am neither convinced by the argument referring to the content of legislation in the majority of the High Contracting Parties nor by the reference to an existing tendency among the High Contracting Parties (paragraph 52). Firstly, these arguments indirectly confirm that there is no unanimity among the High Contracting Parties on the issue. Secondly, it has not been ascertained that the tendencies referred to really constitute a practice in the application of the Convention which would be relevant for the purposes of its interpretation under the applicable principles of international law pertaining to treaty interpretation.