European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF TSVETELIN PETKOV v. BULGARIA

 

(Application no. 2641/06)

 

 

 

 

 

 

 

 

 

 

JUDGMENT



 

 

STRASBOURG

 

15 July 2014

 

 

 

 

 

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 Tsvetelin Petkov v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          Ledi Bianku,
          Nona Tsotsoria,
          Zdravka Kalaydjieva,
          Paul Mahoney,
          Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 17 June 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 2641/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Tsvetelin Veselinov Petkov (“the applicant”), on 23 December 2005. The applicant subsequently informed the Court that he changed his family name to Murlasits, following a marriage.

2.  The applicant was represented initially by Ms S. Ivanova and Mr A. Lukanov, lawyers practising in Sofia. After the death of Mr A. Lukanov, he was represented by Ms S. Ivanova. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimova and Ms M. Kotseva, of the Ministry of Justice.

3.  The applicant complained, in particular, that he had been declared the father of a child in proceedings conducted in his absence and that his subsequent request for reopening had been refused.

4.  On 6 December 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1974 and lives in Sofia.

6.  On 15 October 1993 the applicant got married. At the time of the marriage, the applicant’s wife had an almost three-year old son, who had been born on 20 September 1990 and whose father had been registered as “unknown”. On 21 September 1993 the applicant was registered as having recognised paternity in respect of that child.

7.  The spouses apparently stopped living together about two years after their marriage and divorced in 1997.

8.  In 1999 the applicant brought a claim in court to declare his recognition of paternity null and void. In particular, he asserted that the declaration, with which the child had been recognised and which had been enclosed in the case file, bore a signature that was not his. The Sofia City Court examined his case and found that the legal requirements for recognition of the child had not been met. More specifically, the applicant had not personally expressed his will to recognise the child before the State agent authorised to receive such declarations; in addition, it had been established on the basis of an expert report during the proceedings that the signature on the documents with which the child had been recognised in 1993 was not that of the applicant. The court declared the recognition of the child by the applicant null and void in a final decision of June 2001, which entered into force the following month.

9.  In March 2002 the applicant’s former wife brought a claim on behalf of her child to establish the applicant’s paternity. She asked the court to order gynecological and blood tests in the context of the proceedings. She indicated in the claim the applicant’s “permanent address” as the address where he could be reached.

10.  The applicant was not found at his “permanent address” when the authorities visited it once in April 2002. According to a note by the summons officer, a neighbour had indicated that the applicant no longer lived there. The authorities proceeded by summoning the applicant with a publication in the State Gazette in July 2002. As he did not appear in court, a lawyer was appointed ex officio to represent him. The lawyer attended the court hearing before the Sofia City Court which took place on 2 December 2002; it appears that she had no contact with the applicant at any point in time, either before or after the hearing.

11.  In a judgment of 16 December 2002 the Sofia City Court allowed the claim, declaring the applicant the biological father of the child. The court also held that the child was to carry the applicant’s names (as a patronymic and family name) and determined a monthly amount of child maintenance which the applicant had to pay. The court remained silent on the request for blood tests made by the applicant’s former wife. Instead, it based its findings on the date of the child’s birth and on testimony submitted by the applicant’s former wife’s cousin and aunt. The latter stated that, at the time of the child’s conception, the mother had been in an intimate relationship only with him. The court held that this was sufficient to conclude that the applicant was the child’s father. The applicant was also ordered to pay about 50 euros (EUR) in legal fees to each of the ex officio lawyers appointed by the court to represent him and the child respectively.

12.  On 19 December 2002 the Sofia City Court prepared two notifications of the judgment, one for the attention of the applicant and another for the attention of the child. The notification to the child was handed in person to the child’s lawyer on 8 January 2003. As for the notification to the applicant, on 13 January 2003 a court officer indicated on the court papers for notification that according to information from the applicant’s neighbours he no longer lived at his “permanent address” and no new address was known for him. On 16 January 2003 the court ordered that the notification be sent to the applicant’s ex officio lawyer; the latter was personally served a notice of the judgment on 18 January 2003. The notice indicated that an appeal against the judgment could be filed within 14 days from the moment of notification. The applicant’s ex officio lawyer did not appeal against the judgment and it became final.

13.  The applicant found out about the judgment on 26 April 2004 when he was informed, at his “permanent address”, of his obligation to pay child maintenance in accordance with a writ of execution following the 2002 Sofia City Court judgment. A later certificate, issued on 25 May 2011 by the bailiff service and enclosed in the case file, indicated that no payments had been received in connection with the writ.

14.  On 26 July 2004, the applicant filed a request for reopening, relying on Article 231 (e) and Article 231 (ж) of the Code of Civil Procedure 1952 in force at the time (see paragraph 28 below). He claimed in particular that he had been deprived of the opportunity personally to participate in the court proceedings in which he had been declared the father of the child.

15.  The Supreme Court of Cassation (SCC) examined his request for reopening. It observed that the applicant had only learned about the Sofia City Court 2002 decision on 26 April 2004. It found his request for reopening procedurally admissible as lodged within the statutory time-limit. Nevertheless, the SCC rejected the request on the ground that the procedure for summoning him to the hearing had been observed, namely, attempted service at the applicant’s last known address and publication in the State Gazette. The Court also noted that a legal representative had been appointed ex officio and had represented the applicant during the proceedings. The court concluded, in a final judgment of 11 November 2005, that the applicant’s right to take part in those proceedings and to exercise his defence had not been infringed.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Paternity claims

16.  Article 41 of the Family Code, as in force at the time, stipulated that a claim for establishing paternity could be brought by the child’s mother within three years of the birth and by the child itself not later than three years after reaching majority.

B.  Registration of address (адресна регистрация)

17.  According to section 90 of the Civil Registration Act 1999, every individual who is subject to civil registration has to inform the relevant local authorities in writing of his or her “permanent address” and, where applicable, “temporary address”. People also have to signal any change in their “temporary address” within 30 days of the change (section 99 of the same Act).

C.  Summoning

18.  Article 50 (1) of the CCP, in its wording at the material time, stated that in cases in which, at the time of bringing the claim, the defendant’s domicile or address were unknown, he or she was to be summoned by a publication in the State Gazette made not less than a month before the court hearing. The fact that the defendant’s domicile was unknown was to be established by an inquiry with the address registry office or by other means. That provision was amended in November 2002 by introducing a requirement according to which the person informing the summons officer of the absence of the summons addressee from his or her address had to provide their full names and sign under that statement.

19.  The party who, either temporarily or permanently, changed the address which it had given in a court case, or at which it had been summoned once, had to inform the court of that change.

D.  Legal representation

20.  A party’s legal representative could carry out all procedural acts in the name of the person represented apart from those for which the law required explicit authorisation (Article 22 of the CCP). According to the Supreme Court of Cassation, the procedural acts which the legal representative could carry out included the bringing of appeals against court decisions at first instance (pеш. № 16 от 14 февруари 2011 г. на ВКС по гр. д. № 236/2010 г., I г. о., ГК).

21.  According to Article 22 (2) of the CCP, an explicit power of attorney was required for the conclusion of an agreement; for the reduction, withdrawal or abandoning of a claim; for the acceptance of the claims of the other party; for receiving money or other valuables; as well as for all other actions constituting disposal of the object of a case.

22.  Article 21 (2) of the CCP provided that an explicit power of attorney was required for the bringing of proceedings related to an individual’s civil status. Such proceedings covered claims for establishing or revoking filiation, as well as claims for quashing adoption (Article 271 (1) of the CCP).

E.  Legal representative appointed ex officio by the court

23.  Article 16 (5) of the CCP provided that, in cases in which the domicile of a party was unknown, the court had to appoint ex officio a legal representative for that party. Article 50 (2) of the CCP stated that, in cases in which the party failed to appear before the court, despite having been summoned with a publication in the State Gazette, the court had to appoint a legal representative ex officio. According to section 21 of the Bar Act 1991, in force at the relevant time, once the Bar was apprised of the court’s decision for appointing ex officio a legal representative, the Bar had to select a lawyer for that purpose. The selected ex officio representative was obliged to provide legal defence to the person to whom she or he had been assigned.

24.  According to legal commentators (see Живко Сталев, Българско Гражданско Процесуално Право, осмо издание, София, 2006 г., p. 172) the appointment ex officio of a legal representative to a party in cases covered by Articles 16 (5) and 50 (2) of the CCP is a condition for the validity of the procedural actions undertaken against the party or on his or her behalf. If the party was not represented ex officio in the situations falling under Articles 16 (5) and 50 (2) of the CCP, the decision of the court would be subject to reopening (see paragraph 29 below). The Supreme Court of Cassation held in a judgment of 2011 that, if a party in the situations under Articles 16 (5) and 50 (2) of the CCP was appointed with a lawyer ex officio, that party was considered to have been legally represented and there were no grounds for reopening (реш. № 804 от 5.01.2011 г. на ВКС по гр. д. № 1953/2009 г., IV г. о., ГК).

25.  According to Article 17 of the CCP, ex officio legal representatives appointed to a party with unknown address could carry out the acts, which under Article 22 (2) of the CCP required explicit authorisation, only with the approval of the court hearing the case.

F.  Oral hearings

26.  According to Article 107 (1) of the CCP, if a party did not appear at a hearing after it had been duly notified thereof, the court could proceed with the examination of the case. If a party or its representative failed to appear because of a sudden illness or other impediment, the court had to adjourn the case (Article 107 (2)).

G.  Reopening of court proceedings

27.  Article 231 of the CCP provided that an interested party could request the reopening of civil proceedings, which had ended with a decision which has acquired res judicata, on specific grounds exhaustively listed in the CCP. Article 231 (1) (e) of the CCP stipulated in particular that the parties could seek reopening when, in breach of the relevant provisions, the party had not taken part in the proceedings, had not been adequately represented or could not appear before the court for reasons out of that party’s control. Article 231 (1) (ж) of the CCP provided that a party could seek reopening when, despite having had a known address, he or she had been summoned in accordance with Article 16 (5) of the CCP. Reopening could be requested within three months from learning about the grounds giving rise to it. The request for reopening was examined by the Supreme Court of Cassation (SCC) (Article 234).

28.  Article 231 (1)(з) of the CCP 1952 provided that civil proceedings may be reopened when a judgment of the European Court of Human Rights established that the Convention had been violated. The content of this provision was reproduced in Article 303 (1) (7) of the CCP 2007, where the text “and when a fresh examination of the case is necessary in order to eliminate the consequences of the violation” was added at the end of it. The interested party may make the request no later than six months after the judgment has become final (Article 305 (2) of the CCP 2007). The request is examined by the SCC (Article 307 of the CCP 2007).

H.  Renewal (възстановяване) of limitation periods

29.  Article 37 (1) of the CCP as in force at the time of the events provided that a party which had missed a limitation period, either defined by statute or by a court, could seek its renewal if it proved that it had missed the time-limit due to special unforeseen circumstances. The party could apply to have the period start running anew within seven days from the notification of the missed deadline (Article 37 (2)). In a decision of 1979 (see реш. № 3565 от 21.12.1979 г. по гр. д. № 2925б79 г., II г. о.) the Supreme Court at the time held that “special unforeseen circumstances” could be a natural disaster, such as a flooding which made travel impossible, or a sudden illness, loss of the case-file etc., which objectively deprived the party of the possibility to act within the statutory time-limit.

30.  In a number of subsequent decisions (определения) the highest civil and administrative Bulgarian courts refused requests for renewal of time-limits (in most of those cases the time-limits concerned appeal), considering that no “special unforeseen circumstances” were present as the party’s omission to act within the statutory time-period was not due to objective reasons beyond the party’s control (see, among others, опр. № 294 от 12.03.2004 г. на ВКС по д. № 59/2004 г., IV г. о.; опр. № 80 от 8.01.2002 г. на ВАС по адм. д. № 8703/2001 г., II о.; oпр. № 10467 от 29.12.2001 г. на ВАС по адм. д. № 7377/2001 г., I о.; oпр. № 3957 от 20.06.2000 г. на ВАС по адм. д. № 1416/2000 г., III о.; oпр. № 369 от 15.06.2000 г. на ВАС по адм. д. № 2178/2000 г., III о.; oпр. № 3630 от 7.06.2000 г. на ВАС по адм. д. № 3575/2000 г., III о.; oпр. № 2175 от 10.04.2000 г. на ВАС по адм. д. № 839/99 г., III о.; oпр. № 4880 от 24.09.1999 г. на ВАС по адм. д. № 5260/99 г., III о.; oпр. № 5022 от 04.10.1999 г. на ВАС по адм. д. № 3571/99 г.; oпр. № 4431 от 30.07.1999 г. на ВАС по адм. д. № 2939/99 г., II о.; oпр. № 4063 от 19.07.1999 г. на ВАС по адм. д. № 3296/99 г., III о.; oпр. № 106 от 17.12.1984 г. на ВС по ч. гр. д. № 1141/84 г., II г. о.).

31.  In six other decisions, the national courts allowed requests for renewal of time-limits as they found that the facts, preventing the individuals from appealing, constituted “special unforeseen circumstances”. Two of those decisions were taken in 1976 by the then Supreme Court (oпр. № 947 от 23.03.1976 г. на ВС по гр. д. № 1997/75 г., II г. о.; oпр. № 98 от 04.05.1976 г. на ВС по гр. д. № 1183/76 г., II г. о.); another two were taken in 1999 by the Supreme Administrative Court (oпр. № 5162 от 08.12.1999 г. на ВАС по адм. д. № 4955/99 г., 5-членен с-в; oпр. № 5443 от 19.10.1999 г. на ВАС по адм. д. № 4885/99 г., IV o.); one was taken by a civil appellate court in 2000 (oпр. от 20.04.2000 г. на CАС по ч. гр. д. № 733/2000 г., гражданска колегия, 2-ри с-в), and one by the Supreme Administrative Court in 2003 (опр. № 12155 от 22.12.2003 г. на ВАС по адм. д. № 3699/2003 г., V о.). In the two 1976 decisions the omission by a party to act in proceedings was due to the failure of a neighbour to transmit a notification to that party. In the two 1999 decisions the omission was due to: first, the delivery of a notification, intended for a refugee applicant, not to the latter but to the national authorities responsible for deciding on refugee claims, when those national authorities were a respondent in the same case (and the court concluded that it was in the respondent’s interest to delay handing the notification to the refugee with a view to his missing the time-limit for appeal); and secondly, the inability of a party to appeal because of his being sent temporarily to serve his military duties outside the usual military station. In the 2000 case, the reason for allowing renewal of a time-limit was that a neighbor who had received the notification only handed it to the claimant after expiry of the statutory time-limit for appeal. In the 2003 decision the omission to appeal was due to a sudden serious illness of the party who had been taken to hospital during the time-limit.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

32.  The applicant complained, in particular, about his inability to take part in the proceedings in which he had been declared the father of a child, as well as about the rejection of his request for the reopening of those proceedings. He relied on several different provisions of the Convention. The Court considers that the applicant’s complaints are best examined under Article 8, which reads as follows:

Article 8

“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.”

A.  Admissibility

33.  The Government contended that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention because he had failed to lodge an application for renewal of the limitation period for appeal under Article 37 (1) of the CCP (see paragraph 29 above).

34.  The applicant contested that argument. He pointed out in particular that the failure of his ex officio appointed lawyer to appeal against the decision of the Sofia City Court could not be considered a “special unforeseen circumstance” or an “objective inability” to do so. Therefore, resorting to the possibility under Article 37 (1) CCP was not feasible.

35.  The Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The availability of any such remedy must be sufficiently certain in law and in practice (see Vernillo v. France, 20 February 1991, § 27, Series A no. 198), and the Government’s arguments would clearly carry more weight if examples from national case-law had been supplied (see Doran v. Ireland, no. 50389/99, § 68, ECHR 2003-X (extracts)). In addition, where one remedy has been attempted, use of another remedy which has essentially the same purpose is not required (Kozacıoğlu v. Turkey [GC], no. 2334/03, §§ 40 et seq., 19 February 2009; Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009).

36.  In the present case, the Court takes note of the national courts’ practice under Article 37 (1) of the CCP (see paragraphs 30 and 31 above) which shows that the courts granted requests for renewal of time-limits only where special unforeseen circumstances had prevented a party from acting within the statutory time-limit. The national courts have interpreted “special unforeseen circumstances” to cover only objective reasons beyond the party’s control, for example a natural disaster, sudden illness or a loss of the file, or failure of a neighbour to deliver a notification (see paragraphs 29 and 30 above).

37.  The Court notes that the applicant does not claim that similar or comparable circumstances had prevented him from appealing against the Sofia City Court judgment of December 2002. Indeed, the applicant was not aware of the proceedings for establishing his paternity brought in 2002; he only learned about the Sofia City Court judgment in April 2004 (see paragraph 15 above). In the meantime a lawyer appointed ex officio to represent him had taken part in the hearing in December 2002 before the Sofia City Court and had then failed to appeal against the judgment. The failure to appeal could be said to have been the lawyer’s choice. Consequently, the Court does not consider that the applicant could claim that “special unforeseen circumstances”, within the meaning given to that term by the national courts, had prevented him from appealing. He could not therefore reasonably expect the courts to grant his request for renewal of the time-limit.

38.  Furthermore, the Government have not provided any examples of domestic courts’ practice in support of their submission that an application for renewal of the time-limit under Article 37 (1) of CCP was an effective remedy in cases with circumstances similar to those of the applicant.

39.  Finally, the Court notes that, after learning about the 2002 judgment, the applicant applied within the statutory time-limit to have the case reopened, but his request was rejected. The Court recalls that a request for re-opening a case cannot usually be taken into account for the purposes of applying Article 35 § 1 of the Convention (see, R. v. Denmark, no. 10326/83, Commission decision of 6 September 1983, Decisions and Reports (DR) 35, p. 218; Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007). However, the Code of Civil Procedure 1952 in force at the relevant time contained specific provisions allowing, under certain conditions, for a reopening of cases where a party had not taken part in the initial proceedings (see paragraph 27 above). The Court notes that reopening could have made possible the applicant’s participation in person in the proceedings concerning his paternity, and thus remedied his inability to do so in the 2002 proceedings. It does not seem unreasonable that, in the particular circumstances of this case, the applicant chose to pursue this option. He was, therefore, not required also to have attempted other remedies.

40.  Therefore, the Government’s objection as to the non-exhaustion of domestic remedies must be dismissed.

41.  The Court further notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a)  The Government

42.  The Government considered that, since the applicant had been properly summoned, the authorities were not at fault for his failure to appear at the hearing in the paternity proceedings. Furthermore, adjourning the proceedings would not have been in the interest of the claimant, namely the child, who needed to have his filiation established. They further claimed that the applicant should have anticipated that his former wife could have brought proceedings for establishing paternity and maintenance in respect of the child, given that his paternity had been declared null and void by a court the previous year. Moreover, the applicant was obliged under the applicable law to inform the authorities of his change of address within 30 days of the change (see paragraph 17 above); not having done so, he had placed himself in the situation in which it had become impossible for the authorities to reach him. Finally, the applicant had benefited from the participation of an ex officio lawyer who had ensured that all the procedural guarantees in the proceedings had been respected.

(b)  The applicant

43.  The applicant disagreed. In particular, he reiterated his claims that the proceedings for establishing paternity had been carried out in his absence and the court had failed to seek DNA evidence, and had only relied on witness testimony when determining the biological origin of the child.

2.  The Court’s assessment

(a)  Applicability of Article 8 of the Convention

44.  The Court has held on numerous occasions that paternity proceedings do fall within the scope of Article 8 (see, for example, Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 13, § 33; Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 18, § 45). Respect for “private life” must also comprise to a certain degree the right to establish relationships with other human beings (see, mutatis mutandis, Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29). The Court has also held that “private life” incorporates the right to respect for individuals’ decisions to become or not to become a parent (Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-I). There appears, furthermore, to be no reason of principle why the notion of “private life” should be taken to exclude the determination of the legal relationship between a child born out of wedlock and the person claimed to be that child’s father.

45.  In the instant case, the applicant is a man who has been declared the father of a child born out of wedlock in court proceedings conducted in his absence. His subsequent attempt to have the proceedings reopened have been rejected and he claims he has been denied the opportunity to determine the legal relationship with the child through the establishment of the biological truth. In the Court’s view, there is a direct link between the establishment of paternity and the applicant’s private life.

46.  The facts of the case fall within the ambit of Article 8 and the parties have not contested that.

(b)  General principles

47.  The Court reiterates that, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91, judgment of 26 March 1985, and Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998-I).

48.  The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see, for instance, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290; Kroon and Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297-C; Różański v. Poland, no. 55339/00, § 61, 18 May 2006). The Court also recalls that it has earlier held that a situation in which a legal presumption is allowed to prevail over biological reality might not be compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private life (see, Mizzi v. Malta, no. 26111/02, § 113, ECHR 2006-I (extracts); Shofman v. Russia, no. 74826/01, § 45, 24 November 2005; Kroon and Others v. the Netherlands, 27 October 1994, § 40, Series A no. 297-C).

49.  Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Multiplex v. Croatia, no. 58112/00, § 44, 10 July 2003). For example, in the context of fair trial guarantees, it has found that the principle of equality of arms - in the sense of a “fair balance” between the parties - requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274). This principle would be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007). This is especially so where the judicial authorities are expected to determine factual issues and where the applicant’s claim is, by its nature, largely based on his personal experience (see Salomonsson v. Sweden, no. 38978/97, § 39, 12 November 2002; Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007). In addition, in the context of complaints examined under Article 8 of the Convention, the Court has held that it must be satisfied that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see X v. Latvia [GC], no. 27853/09, § 102, ECHR 2013; A.L. v. Poland, no. 28609/08, § 72, 18 February 2014).

(c)  Application of the above principles to the present case

50.  The Court observes that the essence of the applicant’s claim is not that the State should have refrained from acting but rather that it should have taken steps to ensure adequate measures, in the context of a paternity dispute, to resolve with certainty the question of his relationship with the child. Thus, the applicant complained in substance not of something that the State had done, but of its lack of action, namely the failure of the authorities properly to summon him to the hearing in which he was declared the father, and the failure to allow his request for reopening of those proceedings.

51.  The domestic authorities were faced with a conflict between the competing interests of the child born out of wedlock, the child’s mother and the applicant as the putative father. It is not the Court’s task to substitute itself for the competent national authorities in determining the most appropriate methods for establishing paternity through judicial proceedings in Bulgaria. Instead, it must review under the Convention whether the domestic authorities, in handling all related proceedings, including the applicant’s claim for reopening, complied with the requirements and spirit of Article 8 of the Convention in the exercise of their positive obligations under that provision (see, for instance, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A; Shofman v. Russia, no. 74826/01, § 35, 24 November 2005; Kalacheva v. Russia, no. 3451/05, § 34, 7 May 2009; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002-I).

52.  The Court considers that the crucial issue in the present case is whether, in the particular circumstances, the applicant’s personal participation in the related proceedings was indispensable for the effective exercise of his right to private life.

53.  The Court notes that the outcome of the proceedings for establishing the applicant’s paternity, which ended with the Sofia City Court’s judgment of 16 December 2002, had direct and profound consequences for his private life. It is true that the authorities’ decision to proceed with the hearing in the case, as opposed to adjourning it until the applicant was located, may have pursued the legitimate aim of conducting the proceedings with the necessary speediness. However, their positive obligations under Article 8 required that they strike a fair balance between the interests and rights of all parties, including the applicant as the putative father, taking into account the best interests of the child (see X v. Latvia [GC], cited above, § 95). The Court notes in that connection that the applicant’s “permanent address” was known to the authorities who visited it once in April 2002 in order to summon him to the proceedings. The summons officer having noted on a single occasion that the applicant no longer lived there and, considering that the address at which he could be found was unknown, the authorities proceeded by summoning him via a publication in the State Gazette. According to Article 50, CCP 1952, the fact that the defendant’s address was unknown, had to be established by an inquiry with the address registry office or otherwise (see paragraph 18 above). The Court notes that nothing in the case file shows that the authorities made inquiries with the address registry office so as to establish whether he had any other address registered with that office. Similarly, they did not seek to establish by other means, apart from accepting a summons officer’s note about a neighbour’s statement in April 2002, whether any other address was known to them in respect of the applicant. The Court also notes that they ultimately found him at that same “permanent address” when the bailiff visited it in April 2004 and informed him of his outstanding obligation to pay child maintenance (see paragraph 13 above).

54.  In addition, the Court notes the authorities’ submission that, by failing to inform the registry office of a change of his address, the applicant placed himself in the situation to have to be summoned by a publication in the State Gazette. The Court observes that it cannot be established on the basis of the information in the file whether the applicant was absent from his “permanent address” for more than 30 consecutive days, so as to have been under the obligation according to national law to inform the authorities of his “temporary address” (see paragraph 17 above). However, even assuming that he was away for longer than 30 days and failed to inform the authorities about it, the Court recalls that it is not its role to consider in the abstract whether national law conforms to the Convention (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 153, Series A no. 324; Pham Hoang v. France, 25 September 1992, § 33, Series A no. 243; Etxeberria and Others v. Spain, nos. 35579/03, 35613/03, 35626/03 and 35634/03, § 81, 30 June 2009; Romanenko and Others v. Russia, no. 11751/03, § 39, 8 October 2009). It must confine its attention, as far as possible, to the particular circumstances of the case before it (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 41, ECHR 2000-XII; Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003-VIII). The Court will therefore have regard primarily to the applicant’s personal situation.

55.  The Court observes that at the end of the proceedings before the Sofia City Court the applicant was declared the father of the child, chiefly on the basis of testimony by the child’s maternal aunt and cousin, and in the absence of a DNA test. In that context, the Court does not lose sight of the fact that a DNA test was the scientific method available at the time for accurately determining paternity of a child and its probative value substantially outweighed any other evidence presented by the parties to prove or disprove the biological paternity. Consequently, had the applicant been given an opportunity personally to participate in the court proceedings, he would have been able definitively to settle the matter of paternity by undergoing a DNA test. That would have been in the interest of all parties concerned.

56.  Furthermore, when the applicant sought reopening of the proceedings, the Supreme Court of Cassation rejected his claim, finding that he had been duly summoned (see paragraph 15 above). The Court finds that, against the background described above and keeping in mind what was at stake for the applicant, namely the establishment of a legal relationship with life-long consequences, reopening of the proceedings would have allowed him to provide the most reliable evidence.

57.  The Court does not consider it necessary to state at which stage the authorities should have acted differently and how: in the summoning context or in respect of the applicant’s request for reopening. The national authorities are better placed than international judges to find the optimal solution in the circumstances (see, among many other authorities, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 48, Series A no. 316-B). What is important, however, is to ensure effective respect for the applicant’s right to private life. That, translated in practical terms, meant giving him an opportunity to present his position, including by providing DNA evidence. Given the subject matter in dispute, namely establishment of the applicant’s biological paternity, the Court is of the view that the personal participation of the applicant in the proceedings was crucial for the reliability of the outcome. It is therefore not convinced that the participation of the applicant’s ex officio lawyer was sufficient to secure the effective, proper and satisfactory presentation of the applicant’s case. Only the applicant himself could, not only by testifying in person but also by providing DNA evidence, substantiate his position. In that connection the Court recalls that, in a series of cases in which it examined the question of personal participation of applicants in judicial proceedings as a “fair trial” issue under Article 6 § 1 (see, mutatis mutandis, Sokur v. Russia, no. 23243/03, § 30 et seq., 15 October 2009; Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007; Gryaznov v. Russia, no. 19673/03, § 49, 12 June 2012; Khuzhin and Others v. Russia, no. 13470/02, §§ 53 et seq., 23 October 2008; Mokhov v. Russia, no. 28245/04, §§ 41 et seq., 4 March 2010), it found a violation of that provision as a result of the applicants not having been given an opportunity to take part in hearings, when their participation would have been crucial as their claims had been largely based on their personal experience. In view of all the above, the Court finds that in the present case the applicant had not been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see, mutatis mutandis, X v. Latvia, [GC], cited above, § 119, where the court found that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention; see, to the contrary, Sommerfeld v. Germany [GC], no. 31871/96, §§ 69 and 74, ECHR 2003-VIII (extracts)).

58.  In particular, the authorities did not give the applicant an opportunity either personally to take part in the proceedings in which he had been declared the father of the child, or to have those reopened in order to present his evidence (see, mutatis mutandis, in respect of the impossibility of reopening, Ostace v. Romania, no. 12547/06, § 45, 25 February 2014, and in particular as regards the applicant’s rejected request for reopening of proceedings in which he had been declared the father of a child, despite subsequent DNA evidence showing he was not the father and while, comparably with the present case (see paragraph 9 above), all interested parties appeared in favour of establishing the biological truth). Consequently, the authorities did not strike a fair balance between the applicant’s right to private life and the right of the child to have a father established, and of the mother to have child support awarded.

59.  There has accordingly been a violation of Article 8 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

60.  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

61.  The applicant claimed approximately 8,290 euros (EUR) in respect of pecuniary damage. This amount, he appeared to suggest, corresponded to the principal amount, together with interest, which he had been obliged to pay in child maintenance between December 2002, when he was declared the father of the child, and September 2009, when the child came of legal age. The applicant further invited the Court to decide, in equity, on the amount to be awarded to him in respect of non-pecuniary damage.

62.  The Government submitted that the applicant’s claim for pecuniary damage has not been substantiated.

63.  In respect of the claim for pecuniary damage the Court observes that, at least until 25 May 2011, the applicant appears not to have paid at all on the writ of execution concerning child support (see paragraph 13 above). It then notes that under domestic law it is open to the applicant to request reopening of the case (see paragraph 28 above). The Court considers that reopening of the proceedings should give the possibility to determine the applicant’s real filiation and also settle the question of the child maintenance payments. The Court therefore rejects this claim.

64.  In respect of the claim for non-pecuniary damage, it considers that the failure of the authorities to put the applicant in a position effectively to defend his case or to have the proceedings reopened must have caused him psychological suffering, given the serious consequences for his private life which the judgment on his filiation with the child has had. Ruling in equity, the Court thus awards the applicant EUR 4,500 in respect of non-pecuniary damage.

B.  Costs and expenses

65.  The applicant also claimed EUR 1,000 for legal fees incurred in connection with the proceedings before the Court.

66.  The Government contested that claim. In particular they stated that the applicant had submitted neither a contract with his lawyers, nor itemised bills, showing the hours worked and the rate charged. Similarly, while he submitted a print-out, purportedly of bank payments to one of the lawyers made in 2011, there was no indication in connection with what those payments had been made. Finally, the claim was excessive and unsubstantiated.

67.  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 are reasonable as to quantum. That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met (see, among many other authorities, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 94, ECHR 2013 (extracts)).

68.  In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for legal fees.

C.  Default interest

69.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 8 of the Convention;

 

3.  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, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i)  EUR 4,500, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos                                                          Ineta Ziemele
            Registrar                                                                         President