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FOURTH
SECTION
CASE OF GRÖNMARK v. FINLAND
(Application
no. 17038/04)
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 Grönmark 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. 17038/04) 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, Ms Maarit Grönmark
(“the applicant”), on 13 May 2004.
- The
applicant was represented by Ms Tuula Weckman, a lawyer practising in
Mäntsälä. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- The
applicant alleged, in particular, under Articles 8 and 14 that she
had been unable to have her biological father's paternity legally
established due to the five-year time-limit set in national
legislation for children born before the entry into force of the
Paternity Act in 1976.
- 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 1968 and lives in Mäntsälä.
- The
applicant was born out of wedlock. In 1969 her father R.J. was
ordered, on the initiative of the social services and by a decision
of a District Court (käräjäoikeus, tingsrätten),
to pay child support until the applicant's 17th birthday.
- 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 Act 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.
- In
1985 the applicant's mother and R.J. agreed on one additional year of
child support. The agreement was certified by the social services.
The applicant attained majority in 1986.
- R.J.
died in November 1999 and the applicant found out that he had never
been legally registered as her father. All of the parties had always
been under the impression that paternity had been established when
the duty to pay child support was ordered by the District Court.
- In
October 2000 the applicant brought a civil claim against R.J.'s legal
heir and requested the Orimattila District Court to confirm the
paternity. She stated that neither she nor her mother had known that
they needed to bring a claim against R.J. to establish paternity, nor
did they know that there was a time-limit. They further stated that
the social services had been obliged by law to inform them of these
issues. No such information had been given to them although the
mother of the applicant's half-sister had been informed at the
relevant time.
- The
District Court ordered DNA tests to be performed on the applicant,
her mother and R.J.'s two brothers. The test was conclusive as to the
paternity, with 99.8 % certainty.
- On
12 April 2001 the District Court dismissed the applicant's claim. The
court stated that the transitional provision with regard to the death
of the father was no longer relevant in the case as modern technology
enabled testing that had not been possible in the 1970s when the Act
had been enacted. R.J.'s death was thus no longer an obstacle for
bringing a paternity claim against him. However, the claim had been
brought after the expiry of the five-year time-limit. The reason why
the claim had been brought late was that the applicant and her mother
had been mistaken about the legal character of the child support
decision but this mistake was not of a kind that would have justified
a derogation from the five-year time-limit. The time-limit itself was
not unreasonable or discriminatory nor was it incompatible with the
Constitution, the Convention or the United Nations' Convention on the
Rights of the Child. The court thus concluded that the applicant's
claim was time-barred.
- On
6 February 2002 the Kouvola Appeal Court (hovioikeus, hovrätten)
upheld the District Court's decision on the same grounds as the
latter.
- The
referendary of the Appeal Court considered in her report (mietintö,
betänkande) that, since it had been established with DNA
tests that R.J. was actually the biological father and since the
applicant had a half-sister born in 1976 who had been acknowledged by
R.J. in 1981, it would not be against the spirit of the Act to allow
the establishment of paternity with regard to the applicant.
Furthermore, she considered that applying the five-year rule in the
specific circumstances would put the daughters in unequal positions
with regard to inheritance and family relations. She referred to
Article 8 of the Convention as well as to Article 7 of the United
Nations' Convention on the Rights of the Child.
- The
applicant appealed to the Supreme Court (korkein oikeus, högsta
domstolen). On 11 July 2002 the Supreme Court granted leave to
appeal.
- On
17 November 2003 the Supreme Court dismissed the applicant's claim in
its precedent judgment KKO 2003:107 on the following grounds:
“The Paternity Act, on which [the applicant's]
claim is based, entered into force on 1 October 1976. According to
section 4 of its Implementing Act, the provisions of the Paternity
Act are also applied when the child is born before the entry into
force of the Act, unless otherwise provided in the Implementing Act.
When the child was born before the entry into force of the Paternity
Act, proceedings for the establishment of paternity must be
initiated, in accordance with section 7, subsection 2, of the
Implementing Act, within the time-limit of five years from the entry
into force of the Paternity Act. According to the same provision,
proceedings can no longer be initiated if the man is deceased.
[The applicant] requested in her action directed against
the heir [S.T.] of [R.J.], who had died in 1999, that it be confirmed
that [R.J.] was her father. [The applicant] was born out of wedlock
on 2 September 1968 and thus before the entry into force of the
Paternity Act. According to section 7, subsection 2, of the
Implementing Act, proceedings for the establishment of the paternity
of [R.J.] should have been brought within the five-year time-limit
from the entry into force of the Paternity Act, that is, at the
latest on 1 October 1981. [The applicant] initiated the proceedings
only on 29 September 2000. Therefore the lower courts rejected
her action as time-barred.
The above-mentioned five-year time-limit applies only to
those children who were born before the entry into force of the
Paternity Act. Those children who were born after the entry into
force of the Paternity Act can initiate proceedings for the
establishment of paternity without any time-limits or any restriction
related to the death of the man.
The question is first of all whether the time-limit in
question, which prohibits [the applicant] having paternity
established, puts her, contrary to Article 6, paragraph 2, of the
Constitution, in a different position without acceptable
justification, due to her date of birth and thus her age, to those
children who were born out of wedlock after the entry into force of
the Paternity Act. Only in the case that the answer to this question
is in the affirmative, can the question of whether [R.J.'s] death
prevents the establishment of his paternity arise.
It can be stated that the purpose of the time-limit in
section 7, subsection 2, of the Implementing Act is that the child or
its guardian decides to initiate the paternity proceedings within a
reasonable time after the entry into force of the Act. Taking into
account the interests of different parties, the legislator has
considered five years as a reasonable and sufficient time-limit. This
time-limit can be motivated by legal certainty considerations.
Before the entry into force of the Paternity Act,
paternity of a child born out of wedlock could normally be
established only if the man acknowledged his paternity. The paternity
could be established by a court decision against the man's will only
on very limited occasions and mainly when the child was considered as
an engagement child in accordance with section 6, subsection 1, of
the Implementing Act of the Marriage Act and Chapter 2, section 4,
subsection 1, of the Code of Inheritance, as in force at the relevant
time. On other occasions the man, who by having intercourse with the
mother could have made her pregnant, could only be held liable to pay
to the child alimony in accordance with the Act on Children Born out
of Wedlock (173/1922). A child who had not been acknowledged or who
was not an engagement child had no right to inherit from its father
or the father's relatives.
The aim of the Paternity Act and of the concurrent
legislative reform of the rights of a child was to guarantee the
legal equality of children regardless of their descent. Therefore the
provisions of the Paternity Act were made applicable also to children
born before the entry into force of the Act. According to section 4
of the Implementing Act, children born out of wedlock had the same
legal standing regardless of whether they were born before or after
the entry into force of the Paternity Act. The fact that an alimony
issue had been decided by a court before the entry into force of the
Act did not prevent bringing proceedings for the establishment of
paternity. Children also received the same right, irrespective of
their descent, to inherit from their fathers and the fathers'
relatives.
The Paternity Act thus meant that the legal status of
children born out of wedlock was fundamentally changed and that they
received an equal status with children born within wedlock. The entry
into force of the Act did not, however, automatically ex lege
change the children's legal status. If a man did not acknowledge a
child, paternity proceedings had to be initiated in respect of a
child born out of wedlock and the action could only be granted if
there was sufficient evidence of the biological paternity. In this
respect the provisions are the same as concerning children born after
the entry into force of the Act.
The fact that the Paternity Act was made applicable also
to children born before the entry into force of the Act created
uncertainties as to whether new claims, which had not even been
possible under the previous legislation and for which there had thus
been no need to be prepared, were going to be presented on the basis
of events that had maybe taken place long before the entry into force
of the Act. It was important for a man to know, inter alia,
who his heirs were in order to dispose by will of their shares. This
also had consequences for the man's relatives as the establishment of
paternity had an effect on their rights because of the child's right
to inherit.
The number of persons who could be concerned by the
change of legal status provided for in the Paternity Act was
considerable. Proceedings for the establishment of paternity could be
initiated within the above-mentioned five-year time-limit
irrespective of the age of the person born out of wedlock. The
establishment of paternity could change legal relationships created
maybe decades earlier. The change of the man's legal status due to
the establishment of paternity can lead to an annulment of previous
decisions also in cases when the children are born after the entry
into force of the Paternity Act. The retroactive application of the
provisions concerning establishment of paternity in respect of
children born before the entry into force of the Act and the effects
that it has on legal relationships created under the earlier
provisions may create even bigger and more significant problems. The
probability of such problems is greater the more time has elapsed
since the entry into force of the Act. There are thus strong reasons
for having the time-limit in section 7, subsection 2, of the
Implementing Act.
The provision containing the time-limit has not been
conducive to creating confusing interpretations but, on the contrary,
it is unambiguous and strict. In its precedent judgment KKO 1993:58
the court has examined an action for the establishment of paternity
although it had been brought later than within the five-year
time-limit from the entry into force of the Paternity Act and the man
was deceased. However, the case concerned a child who had had the
status of a child born within wedlock when the Act entered into force
and who could only initiate proceedings for the establishment of the
paternity of another man after the paternity of the mother's husband
had been annulled. [In the applicant's] case there were no legal
obstacles for initiating the proceedings.
The Paternity Act has now been in force for more than 25
years. All children born before its entry into force have been adults
for some time. It is probable that the paternity of almost all
children born then out of wedlock has already been established in one
way or another with a final court decision or otherwise in accordance
with the time-limit provided in section 7, subsection 2 of the
Implementing Act. The legal status of these children has also been
determined accordingly. The legal situation can be regarded as
established. For these reasons, and especially having regard to the
time elapsed since the entry into force of the Paternity Act, this
time-limit has today an even more significant role in providing legal
certainty.
It has not been claimed that [the applicant] and the
putative father [R.J.] had ever lived together nor has there ever
been any family relationship between them or any other close
relationship. [The applicant] was already 32 years old when she
initiated the proceedings. Taking into account [R.J.'s] death and the
circumstances as a whole, the establishment of his paternity would
have significance only in relation to the applicant's right to
inherit. The international conventions by which Finland is bound,
such as the Convention on the Rights of the Child (SopS 60/1991) and
the European Convention on Human Rights (SopS 19/1990), and their
case law, do not support such interpretation that the literal
application of section 7, subsection 2, of the Implementing Act would
be incompatible with these Conventions in the present case.
On the above-mentioned grounds the Supreme Court
considers that section 7, subsection 2, of the Implementing Act does
not put [the applicant], who was born before the entry into force of
the Paternity Act, in a different position without acceptable
justification, due to her date of birth and thus her age, to those
children who were born out of wedlock after the entry into force of
the Act. The application of the five-year time-limit in that
provision is thus not incompatible with the prohibition of
discrimination provided in Article 6, paragraph 2, of the
Constitution.
- The
referendary of the Supreme Court stated in her report that refusing
to establish the applicant's paternity would be unconstitutional and
would involve discrimination. The referendary proposed that the
Supreme Court disregard the time-limit on the basis of Article 106 of
the Constitution.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional and other 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.”
- According
to Chapter 12, section 1, subsection 2, of the Code of Judicial
Procedure (oikeudenkäymiskaari, rättegångsbalken;
Act no. 444/1999):
“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
- 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. 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 she had been unable to have R.J.'s
paternity established due to the five-year time-limit set in national
legislation for children born before entry into force of the
Paternity Act in 1976. 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 even though the rights of the putative
father and his relatives did need some protection, the relatives were
not always against the establishment of paternity, even after the
death of the putative father. In the applicant's case the brothers of
her biological father wanted the paternity to be confirmed and had
given their DNA for testing in order to confirm that paternity.
Nobody's rights had been violated. On the contrary, the situation
which all parties had already considered as legal would have been
legally confirmed. In the applicant's case the DNA evidence clearly
showed (99.8%) that R.J. was her biological father.
- The
applicant pointed out that R.J. had always recognised her as his
daughter and had paid child support to her. Due to these
circumstances all parties had always believed that R.J. was also
legally the applicant's father. As the applicant had been eight
years' old when the Paternity Act came into force and thirteen when
the time-limit had expired, she could not have taken any action on
her own. The social services had not informed the applicant or her
mother of the changing legislation in the 1970s and it could not be
expected that they would have known about it on their own. They had
had no need to verify the information in the population register. The
applicant concluded that the impossibility to have her biological
father's paternity legally established after the five-year time-limit
violated Article 8.
- The
Government accepted that there had been an interference with the
applicant's private life but maintained that this interference had
been in accordance with the law and that it had been necessary in a
democratic society for the protection of the rights and freedoms of
others. The purpose of the Paternity Act was to guarantee equality in
law between children, irrespective of descent, and for this reason it
was retroactive. The limitation of retroactivity to five years only
concerned those cases where paternity was to be established by a
court decision. According to the preparatory works of the Paternity
Act, the requirement of legal certainty required rapid elimination of
uncertainty about possible claims to be made against putative
fathers. The restriction concerning the death of the man was
justified on the grounds that it was no longer possible to obtain
sufficient evidence of the man's paternity if he were deceased. The
child welfare supervisor could only initiate paternity proceedings in
respect of a child who had been born before the entry into force of
the Paternity Act if the child was under fifteen years of age and the
mother or the legal guardian had expressed the wish for such
proceedings to be initiated.
- The
Government pointed out that, in the present case, the applicant had
not given any valid reason for not having instituted paternity
proceedings within the five-year time-limit. Even though she had
received child support from her putative father, it did not mean that
the latter's paternity had been established. 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's mother must have been aware of the law reform as well as
the identity of the putative father. She could have either instituted
the proceedings herself or asked the child welfare supervisor to do
so.
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 her
legal relationship with the person she claimed was her 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 her 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,
she complained that the time-limit imposed by the Paternity Act
prevented her 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 or her legal
guardian had until 1 October 1981 to institute paternity
proceedings. The applicant, however, instituted such proceedings only
in September 2000 as she claimed that she had not known that
paternity had not been legally established until November 1999 when
R.J. had died. Her 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 accordingly 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
looks into 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 aiming to have paternity established.
Indeed, a tendency could be ascertained 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 periods varied significantly,
the time-limit varying between one and thirty years. Furthermore,
although there was a difference in the dies a quo of the
limitations periods, 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 initiate the
paternity proceedings within the period provided for by the Act. They
do not, however, make any allowance for children in the applicant's
situation: her father had not acknowledged her. When the statutory
five-year-period started she was eight years old and when it finished
she was thirteen years old. The child welfare supervisor was not
entitled to exercise the child's right of action without a separate
authorisation from the mother. When she reached the age that she
could have taken action without her mother's consent, the limitation
period had already elapsed.
- The
Court has difficulties in accepting the inflexible limitation period
with time running irrespective of a child's age and legal capacity,
and without providing any exceptions to the application of that
period (see, mutatis mutandis, Shofman v. Russia,
cited above, § 43). The main problem therefore is the absolute
nature of the time-limit rather than its dies a quo as such.
In view of the fact that in the present case the biological father
had already died, judicial proceedings before the national courts
were the only avenue by which the applicant could have legally
established the legal status of her biological father. As a result of
this rigid time-limit, as upheld by the Supreme Court, the applicant
was deprived of the possibility of obtaining a judicial determination
that R.J. was her father. She was deprived of this right even though
she was in a situation where she had not had any realistic
opportunity to go to court during the limitation period due to her
age (see, mutatis mutandis, Phinikaridou v. Cyprus,
cited above, § 62; and Turnalı v. Turkey, no.
4914/03, § 44, 7 April 2009).
- Furthermore,
even though the identity of the applicant's biological father was
known to all parties, the applicant was able to provide only later,
through DNA tests, conclusive evidence about her biological father's
paternity. 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 (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
accepted any exceptions to be made to the application of the
time-limit in question except in one exceptional case.
- It
is clear from the Supreme Court's judgment that the general interest
as well as the competing rights and interests both of the putative
father and his family were accorded greater weight than the
applicant's right to have her origins legally confirmed. The Court,
however, does not consider that such a radical restriction of the
applicant's right to institute proceedings for the judicial
determination of paternity was proportionate to the legitimate aim
pursued. In particular, it has not been shown how 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 judicial determination of
paternity. This is even more so in the present case as the identity
of the applicant's biological father had been known since her birth,
he had paid child support to her and the biological father's
relatives did not oppose the confirmation of paternity. 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 her 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 her in
comparison to children born after the entry into force of the
Paternity Act. She 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 her 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 5,430 euros (EUR) plus interest in respect of
pecuniary damage (lost share of her father's estate) and EUR 15,000
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 10,461.50 for the costs and expenses
incurred before the Court.
- The
Government considered that the number of hours used for the
applicant's observations was too high and that the total amount of
compensation for costs and expenses should not exceed EUR 5,000.
- 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 5,000 (inclusive of
value-added tax) for the proceedings before the Court.
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;
4. 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
5,000 (five thousand euros), plus any tax that may be chargeable to
her, 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
