EHRM, 12-01-2006, nr. 26111/02

The Government first submitted that Article 6 was not applicable to the facts of the present case. They alleged that this provision only covered disputes over rights which existed at the domestic level. Now, the applicant, who was not separated from his wife and knew about the birth of Y, did not have any right to disavow paternity. The Government referred, on this point, to the cases of Nylund v. Finland (see decision of 29 June 1999, no. 27110/95) and Yildirim v. Austria (see decision of 19 October 1999, no. 34308/96).

The Government furthermore observed that the applicant never filed any case in Malta to determine the paternity of Y. He could not therefore claim that he had been denied access to a court in respect of such an action. The applicant limited himself to introducing a constitutional application on 1 November 1996, which was more than three years after the adoption of the 1993 amendments and more than six months after the date on which Y agreed to undergo the DNA test.

The Government noted that the ‘concealment of birth’ requirement was a measure favouring legitimacy and the stability of the family, which kept a proper balance between various rights in cases like the present one in which the husband chose to continue cohabitating and having relations with the wife despite his knowledge that the wife was maintaining other relationships. In such circumstances, it was proportionate to provide that the husband should accept as his children which he might not have fathered. In the Government's view, the effects of the concealment requirement were very similar to those of the ‘doctrine of acknowledgment’ under Danish law, examined by the Court in the case of Rasmussen v. Denmark (see judgment of 28 November 1984, series A no. 87).

Under Maltese law, adultery was a ground for separation, which could have been proven with all means. Had the applicant sought a separation from his wife, he could have done so at any time, even after the birth of Y. In case of refusal to undergo blood tests to determine paternity, the domestic tribunal would have taken this factor into account and considered it as an element showing adultery. However, the applicant chose a completely different course of action: he acknowledged the child and signed with X a contract of consensual separation in which adultery was not mentioned.

Moreover, the concealment requirement was not relevant in the applicant's case: even if such a requirement was not provided for by the law, an action for disavowal would have had little prospects of success, as the applicant did not have any proof of his wife's adultery or — before the DNA test — of the fact that Y had not been generated by him. Consequently, the applicant was affected only by the fact that the law fixed a time-limit for the action of denial of paternity and required the proof of the adultery before admitting scientific evidence.

The Government emphasized that in the domestic proceedings the applicant failed to produce the DNA test and the evidence of the adultery of X. In the absence of any proof of the factual basis of his allegations, he could not be considered a victim of the facts complained of.

In any case, there would be good reasons to establish a legal presumption that a child born or conceived in wedlock is the offspring of the husband, to require certain preconditions before allowing proof in rebuttal and to subject an action for disavowal to time-limits.

In relation to the latter point, the Government observed that in the case of Rasmussen v. Denmark, cited above, the Court accepted such time-limits, which are provided for by practically all the European legislation on the matter, in order to protect the children's right to legal certainty as to their status.

Furthermore, it should be taken into account that when Y was born, DNA testing was not available. The only available test at the time was the ABO blood grouping test, which could in some cases definitely exclude parenthood, but left the matter open in most cases. Now, it would be unreasonable to reopen settled issues of parenthood every time a new scientific test is produced.

In the Government's opinion, the three-month time-limit — which was lately extended to six months — was not unreasonably short. In fact, the law took into account that both infidelity and reconciliation after adultery are not uncommon facts. It was therefore wise to rule out the possibility of an action for disavowal being brought at any time the spouses might have had a fight. In order to avoid ‘conditional reconciliations’, Maltese law decided to give to a husband a limited time within which he had to decide whether to forgive his wife and forget his doubts as to the paternity of his children.

Finally, as jealousy was a recurring theme in life, the Maltese legislator had protected wives and their children from the antics of jealous husbands or fathers. In particular, before 1993, the husband was required to prove both the adultery and the concealment of birth before adducing other evidence (including scientific tests) showing that the child born in wedlock was not his. After 1993, he should prove either the adultery or the concealment in order to be able to produce other evidence. The more rigid requirements before 1993 were attributable to the fact that the scientific tests were, at that time, less reliable.

In the view of the above, the Government concluded that the preconditions required for bringing an action for disavowal were necessary and acceptable limitations to the right of access to a tribunal. They referred to the case of MikuliĆ v. Croatia (no. 53176/99, judgment of 7 February 2002, ECHR 2002-I), in which the Court concluded that leaving a child born on 25 November 1996 in a state of prolonged uncertainty as to her personal identity constituted a failure to secure her right to respect for private life.

According to the applicant, the concealment requirement and the limitation period under the relevant provisions of the Civil Code constituted an unjustified and disproportionate interference with his right of access to a court.

He observed that he brought proceedings before the Civil Court seeking a declaration that these legal limitations were contrary to Articles 6, 8 and 14 of the Convention. He also sought a declaration that he had a right to proceed with an action for rejection of paternity notwithstanding the limits fixed in the Civil Code.

As to the Government's argument, according to which he could not claim to be a victim of the alleged violations as no evidence of the wife's adultery or of the DNA test was adduced, the applicant noted that his complaint in Strasbourg concerned the preconditions for bringing an action of denial of paternity in the domestic legal order. He therefore considered that for the purposes of the present application there is no need for the Court to consider evidence of paternity or adultery.

The applicant observed that the Government acknowledged, in substance, that the six-month limitation period for bringing an action for disavowal and the concealment requirement are prima facie interferences with his right to access to court. However, the Government failed to provide adequate justifications satisfying the test of proportionality under Article 6 of the Convention.

In the first place, the Government did not explain why an absolute six-month requirement, allowing for no exceptions, was needed. After the 1993 amendments, it was this time-limit which prevented the applicant, who was able to comply with the substantive requirements of an action for disavowal, from bringing his case before a tribunal.

The applicant submitted that in the case of Mikulić v. Croatia, cited by the Government, the Court had emphasised the importance, for a child, of the elimination of uncertainty as to the identity of her natural father. It was, however, similarly important for the applicant that the erroneous legal presumption that he was Y's father was eliminated.

The delay in challenging paternity was not due to the applicant's lack of action, but to the operation of the concealment requirement which would have been, until 1993, an obstacle to any action for disavowal. When the law was amended and the said requirement was removed, the inflexible six-month time-limit prevented the applicant to start court proceedings. Against this background, the fact that he waited until 1 November 1996 to raise his constitutional claim was irrelevant.

The applicant considered that the reasons advanced by the Government in order to justify the concealment requirement were not convincing. It had not been explained, in particular, why before 1993 it was necessary to prove not only the adultery of the wife but also the concealment of the birth. This requirement prevented a husband who had evidence of the adultery of his wife from instituting proceedings for denial of paternity each time there was still common marital life or when the wife had decided to reveal the birth. This rendered, in many cases, an action for disavowal practically impossible and overlooked the role played in children's life by the biological father. Nor did the Government explain why the proof of the adultery, properly applied, was not sufficient to protect wives and children from groundless allegations. Furthermore, there was no valid reason why the Maltese courts did not have the power to compel the parties to undergo blood tests to establish paternity. It was also to be noted that the power to invite the parties to undergo such tests and to draw inferences from any refusal was introduced only with the 1993 amendments. It was therefore a course which had never been open to the applicant.

The applicant also submitted that his case was distinguishable from those of Nylund v. Finland and Yildirim v. Austria, cited by the Government to claim that Article 6 was not applicable. Differently from Mr Nylund, the applicant would have had, under domestic law, a right to disavow paternity had the concealment requirement and the six-month time-limit not existed. As to Mr Yildirim, the latter had the possibility, not impaired by any concealment requirement, to bring an action denying paternity within one year from the birth of his child, but had omitted to do so.

The Court notes that, according to its case-law, Article 6 § 1 secures the ‘right to a court’, of which the right of access, that is the right to institute proceedings before courts in civil matters constitutes one aspect only (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy (No. 1), no. 40877/98, § 48, ECHR 2003-I). This right extends only to disputes (‘contestations’) over ‘civil rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46–47, § 81, and Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 16, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria, judgment of 24 November 1997, Reports 1997-VII, p. 2507, § 34).

In the present case, the applicant wished to introduce an action for disavowal with regard to Y, his wife's daughter. Under the relevant domestic provisions, a husband could repudiate a child conceived in wedlock under certain circumstances, which were listed in Articles 70 and 72 of the Maltese Civil Code. According to the latter provision, an action for disavowal was admissible if the husband could prove both the adultery of his wife and the concealment of the birth, as well as all other circumstances tending to show that he was not the father of the child (see paragraph 36 above).

It is not contested that the birth of Y was not concealed to the applicant. However, the Maltese law was amended in 1993. Under the new rules (Article 70 § 1 (d) of the Civil Code), evidence of the adultery and of any other fact tending to exclude paternity was sufficient to bring an action for disavowal (see paragraph 37 above).

In the light of the above, the Court considers that not only did the domestic legal system allow a husband to deny paternity of the offspring of his wife, but also that after the 1993 amendments a person in the situation of the applicant was, in principle, capable of introducing such an action with reasonable prospects of success. In the Court's view, the fact that a time-limit precluded the applicant from benefiting from the 1993 amendments did not impair the existence itself of the right in the domestic legal system. Such time-limit was only a procedural pre-condition for having access to the domestic tribunals.

The present case is therefore distinguishable from those of Nylund v. Finland— in which the Court found that the domestic law did not provide any ‘right to have mere biological paternity examined by scientific methods’— and of Yildirim v. Austria— where the domestic law did not confer to a husband a right to have an action contesting legitimacy brought by the Public Prosecutor.

In the Court's view, having regard to the scientific evidence obtained in Switzerland (see paragraph 13 above), it cannot be said that the applicant's allegations that he was not the biological father of Y were manifestly devoid of substance. Under these circumstances, the Court considers that the right to deny paternity claimed by the applicant was at least arguable and that the dispute that he wished to bring before the domestic tribunals, directly decisive for this right, was genuine and serious. Finally, the Court recalls that an action contesting paternity is a matter of family law; on that account alone, it is ‘civil’ in character (see Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, pp. 12–13, § 32).

It follows that Article 6 of the Convention applies to the facts of the present case. It remains to be ascertained whether there had been an interference with the applicant's right to bring an action for disavowal before the domestic courts.

The Court notes that at the time of Y's birth, any action which the applicant could have brought in order to deny paternity would have had little prospects of success, as he would have not been able to prove one of the elements required by the then Article 72 § 1 of the Civil Code, namely that the birth of the child had been concealed from him. After the 1993 amendments, when, as noted above, the concealment requirement became only one of the alternative pre-conditions for introducing such an action, the applicant was time-barred from bringing his claim before a tribunal. In fact, according to Article 73(a) of the Civil Code, the husband wishing to disavow should bring his judicial claim within six months from the day of the birth (see paragraphs 36 and 38 above). As Y was born on 4 July 1967, in 1993 this time-limit had expired.

It is true that the applicant could file an application before the Civil Court, seeking a declaration that notwithstanding the provisions of the Civil Code, he had a right to proceed with an action of rejection of paternity (see paragraphs 14–19).

However, it is to be recalled that the Civil Court's favourable decision was revoked by the Constitutional Court (see paragraphs 20–27 above), and that a degree of access to a court limited to the right to ask a preliminary question cannot be considered sufficient to secure the applicant's ‘right to a court’, having regard to the rule of law in a democratic society (see Cordova, cited above, § 52, and, mutatis mutandis, Waite and Kennedy v. Germany[GC], no. 26083/94, § 58, ECHR 1999-I). In this connection, it should be borne in mind that, in order for the right of access to be effective, an individual must have a clear and practical opportunity to challenge an act interfering with his rights (see De Jorio v. Italy, no. 73936/01, § 45, 3 June 2004, and Bellet v. France, judgment of 4 December 1995, Series A no. 333-B, p. 42, § 36). In the present case, following the wording of the relevant provisions of the Civil Code coupled with the Constitutional Court's refusal to grant the applicant leave for introducing an action for disavowal, Mr Mizzi was deprived of the possibility of obtaining a judicial determination of his claim that he was not Y's biological father.

In these circumstances, the Court considers that there has been an interference with the applicant's right of access to a court.

This right is not absolute, but may be subject to implied limitations. Nonetheless, such limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, they will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Cordova, cited above, § 54, Khalfaoui v. France, no. 34791/97, §§ 35–36, ECHR 1999-IX, and Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; see also a reminder of the relevant principles in Fayed v. the United Kingdom, judgment of , Series A no. , pp. 49–50, § 65).

The Court recalls that the rules on time-limits for introducing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty (see Pérez de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 45, and Miragall Escolano and others v. Spain, no. 38366/97, § 33, CEDH 2000-I). Furthermore, they might protect the interests of the child, who has a right to have his or her uncertainty as to his or her personal identity eliminated without unnecessary delay (see Rasmussen, cited above, p. 15, § 41, and Mikulić v. Croatia, no. 53176/99, § 65, ECHR 2002-I).

The aim pursued by the concealment requirement is less apparent. However, the Court is ready to accept as a starting point for its analysis that it might have served interests similar to those protected by the statutory time-limit.

It remains to be determined whether the consequences for the applicant were proportionate to the legitimate aims pursued.

The Court recalls that it must assess the contested interference with the right to access to a court in the light of the particular circumstances of the case (see Waite and Kennedy, cited above, § 64). It reiterates in this respect that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 24). In particular, it is not the Court's task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (Cordova, cited above, § 57).

As observed above (see paragraphs 78–80), in the present case the applicant never had the possibility of introducing, with reasonable prospects of success, an action for disavowal. Until 1993 he was prevented from doing so by the concealment requirement, while after the 1993 amendments any such judicial claim would have been time-barred.

The Court had already accepted that under certain circumstances, the institution of time-limits for the introduction of an action for disavowal might serve the interests of legal certainty and the interests of the children (see Rasmussen, cited above, p. 15, § 41). Therefore, the consequent limitations of the right to access to court of the presumed father are not, as such, incompatible with the Convention.

However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Osu v. Italy, no. 36534/97, § 32, 11 July 2002). The Court is of the opinion that in the present case the practical impossibility of denying paternity from the day of Y's birth until today has impaired the essence of the applicant's right to a court. Therefore, the interference complained of has put an excessive burden on the applicant, thus failing to strike a fair balance between the latter's legitimate interest of having a judicial ruling over his presumed paternity and the protection of the legal certainty and of the interests of the other persons involved in his case.

The Court emphasises that the above finding does not conflict with the conclusions reached in the case of Mikulić v. Croatia, cited by the Government. It notes that Ms Mikulić, a child born out of wedlock, wished to obtain a judicial decision with regard to her real father's identity. However, her judicial claim was not decided within a reasonable time. In the absence of procedural measures to compel the presumed father to undergo a DNA test and of alternative means enabling an independent authority to determine the paternity claim speedily, the Court found that there had been a violation of Ms Mikulić's right to have her uncertainty as to her personal identity eliminated without unnecessary delay (see Mikulić, cited above, §§ 56–66). The position of Ms Mikulić is therefore not comparable to that of Y, a child born in wedlock who did not wish to institute court proceedings to determine her real father's identity and whose status as a legitimate child could never be successfully challenged by the applicant.

In the light of the foregoing, the Court finds that there has been a violation of the applicant's right of access to a court guaranteed by Article 6 § 1 of the Convention.

Referring to the cases of X v. the United Kingdom (application no. 5269/71, Yearbook, Vol. 15, pp. 564–574 and application no. 2991/64, Yearbook, Vol. 15, pp. 478–500), the Government alleged that the relationship between the applicant and his 29 year old daughter did not constitute ‘family life’. They moreover observed that there has been no interference by the State in the applicant's intimate life with X and Y. Mr Mizzi himself declared that he had developed a friendship with Y and that he ‘hoped’ that she was his daughter.

According to the Government, the potential or rather theoretical reciprocal right of maintenance between the applicant and Y and the inheritance rights of the latter do not constitute interferences with the applicant's private life, but only with his patrimony. They therefore concern family property, and not family life.

The Government furthermore challenged the applicant's argument that Article 8 guaranteed the right not to be compelled to establish relationships with other human beings. Such a right would deny the whole basis of the family. Moreover, the interests of the society, of the child and of legal certainty might justify the establishment of relationships of parenthood with a person which was not the biological father. A legal presumption of this kind would be incompatible with the Convention only when, like in the case of Kroon and Others v. the Netherlands (see judgment of 27 October 1994, Series A no. 297-C), it clashed with social reality and did not benefit anyone.

In the present case, Y always enjoyed the ‘social reality’ of being the applicant's daughter and it would be detrimental for her to take away her identity and expel her from the applicant's family.

In the light of the above, the Government submitted that, even assuming that Article 8 could apply to the facts of the present case, the interference complained of was provided by law and necessary in a democratic society to secure legal certainty and to protect the rights of others.

The applicant alleged that the amendments introduced in the Civil Code in 1993 were aimed at protecting persons which were in a position comparable to his; however, no derogation was provided for the six-month time-limit set forth in Article 73 of the Civil Code, thus preventing him from introducing an action based on adultery and scientific tests. This legislation failed to ensure, in his case, that the biological reality prevailed over the legal assumption of legitimacy, to which the Maltese legal system attributed a disproportionate importance. Moreover, this legal assumption had serious financial consequences: even if not biologically related to the applicant, Y will inherit one third of his estate and could not be treated less favourably than other children that the applicant may have in future. Thus, the presumption of paternity has not only emotional, but also financial consequences, which are disproportionate and extend substantially beyond Y's age of majority.

The applicant moreover observed that the case-law quoted by the Government in order to show that there was no family life between him and Y and that there was no interference on the part of the State with his rights guaranteed by Article 8 was not relevant. In this respect, he noted that he did not seek to establish family life with a relative who might otherwise be considered independent, but to distance himself from a relationship established by the Maltese Civil Code and which existed since the birth of the presumed daughter.

In any case, the institution of paternity proceedings was clearly covered by Article 8 of the Convention. In fact, respect for private life, intended as the right to establish relationships with other human beings, should also comprise the right not to be compelled to establish such relationships. In the present case, the applicant was, against his wish, publicly compelled to be associated ‘with a woman with whom he ha[d] no biological or social relationship’.

In the applicant's view, the Government failed to explain how the requirements for bringing an action for disavowal were strictly necessary to meet a pressing social need. The recognition of the biological reality would not cause to Y any detriment other than the loss of the inheritance rights. She would not be ‘expelled’ from the applicant's family as she had never been a part of it.

The Court has already examined cases in which a husband wished to institute proceedings to contest the paternity of a child born in wedlock. In those cases the question was left open whether the paternity proceedings aimed at the dissolution in law of existing family ties concerned the applicant's ‘family life’ because of the finding that, in any event, the determination of the father's legal relations with his putative child concerned his ‘private life’ (Yildirim v. Austria (dec.), no. 34308/96, 19 October 1999; and Rasmussen, cited above, § 33).

In the instant case the applicant sought, by means of judicial proceedings, to rebut the legal presumption of his paternity on the basis of biological evidence. The purpose of those proceedings was to determine his legal relationship with Y, who was registered as his daughter.

Accordingly, the facts of the case fall within the ambit of Article 8 of the Convention.

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 MikuliĆ, 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, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Kroon and others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, p. 56, § 31).

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 Mikulić, cited above, § 59; Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55). The Court will therefore examine whether the respondent State, in handling the applicant's paternity action, has complied with its positive obligations under Article 8 of the Convention.

The applicant does not dispute that the impossibility of bringing an action for disavowal was ‘in accordance with the law’. Indeed, his complaint is based on the assumption that Articles 72 and 73 of the Civil Code, as in force before and after the 1993 amendments, prevented him from bringing any successful claim before the national tribunals. The Court has substantially agreed with this analysis and concluded that the wording of the relevant domestic provisions, coupled with the Constitutional Court's refusal to grant leave for introducing an action, deprived the applicant of the possibility of obtaining a judicial determination of his claim that he was not Y's biological father (see paragraphs 80 and 87 above).

The Court notes that the applicant and Y had carried out a blood test in Switzerland in order to establish whether the applicant was Y's biological father. According to the applicant, the results of this test showed that he was not Y's father (see paragraph 13 above). However, the applicant never had the possibility of having the results of the test in question examined by a tribunal. It was only after the 1993 amendments that the applicant would have had a right under domestic law to contest the paternity on the basis of scientific evidence and of proof of adultery had he lodged the action within six months after Y's birth.

The Court notes that the legal systems of the Contracting States have produced different solutions to the problem which arises when the circumstances substantiating a claim for disavowal are fulfilled only after the expiry of the time-limit. In some States, in certain exceptional cases a court may grant leave to institute proceedings out of time (Rasmussen, cited above, § 24). In others the authority to do so is vested in the public prosecutor (see Yildirim, cited above).

In the applicant's case, the only means of redress was apparently to introduce a constitutional claim seeking a declaration that notwithstanding the provisions of the Civil Code, the husband had a right to proceed with an action of rejection of paternity. The Government failed to indicate other effective domestic remedies to obtain the reopening of the time-limit. Had the Civil Court and the Constitutional Court accepted this request, they would have adequately secured the interests of the applicant who had legitimate reasons to believe that Y might not be his daughter and wished to challenge in court the legal presumption of his paternity. However, this request was rejected and, as noted above, the applicant was never afforded the possibility of introducing, with reasonable prospects of success, an action aimed at rebutting the presumption in question.

The Court is not convinced by the Government's argument that such a radical restriction of the applicant's right to institute proceedings to deny paternity was ‘necessary in a democratic society’. In particular, it has not been shown why the society as a whole would benefit from such a situation. The potential interest of Y to enjoy of the ‘social reality’ of being the daughter of the applicant cannot outweigh the latter's legitimate right of having at least one occasion to reject the paternity of a child who, according to scientific evidence, was not his own. As to the interests of legal certainty, the Court cannot but reiterate the observations developed under Article 6 § 1 of the Convention (see paragraphs 87–90 above).

According to the Court's case-law, the 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 and family life (see, mutatis mutandis, Kroon, cited above, § 40).

The Court considers that the fact that the applicant was never allowed to disclaim paternity was not proportionate to the legitimate aims pursued. It follows that a fair balance has not been struck between the general interest of the protection of legal certainty of family relationships and the applicant's right to have the legal presumption of his paternity reviewed in the light of the biological evidence. Therefore, despite the margin of appreciation afforded to them, the domestic authorities have failed to secure to the applicant the respect for his private life, to which he is entitled under the Convention.

Thus, the Court finds that there had been a violation of Article 8.

This finding dispenses the Court from establishing whether this provision has been violated also by the reciprocal right of maintenance between the applicant and Y and the latter's inheritance rights.

The Government submitted that the applicant's complaint was similar to that examined by the Court in the case of Rasmussen v. Denmark, cited above. They further observed that under Maltese law the circumstances under which any interested person might challenge a child's legitimacy without a specific time-limit are rather exceptional (in particular, when the husband had been in the physical impossibility of cohabitating with his wife or when the child was born three hundred days after the dissolution or annulment of the marriage). These circumstances did not occur in the present case and the applicant was therefore not treated differently from other persons. Moreover, the action of an ‘interested person’ would be limited by the provisions of the Civil Code protecting the status of child conceived or born in wedlock and the status attributed by the act of birth.

The Government also submitted that the applicant was not in a situation analogous to that of the other persons with reference to whom he alleged to have been discriminated. In any event, the time-limits for the action for disavowal were aimed at protecting legal certainty, at avoiding that a child might have his or her paternity determined a long time after birth and at preventing the action being used as a tool for the blackmailing of the child or of the mother by the husband. Any difference in treatment was therefore objectively and reasonably justified.

As to the applicant's allegation that in other Contracting States (notably, Austria and Denmark at the time of the Rasmussen judgment) it was possible to file an action for disavowal outside the legally stipulated time-limit, the Government pointed out that leave for exercising the action out of time was subject to strict conditions. Nothing showed that in other Contracting States a father would be allowed to deny paternity if he obtained scientific evidence twenty-seven years after the birth of the child and wished to start proceedings six years after obtaining that evidence. It was shown by a report on ‘The establishment and consequences of maternal and paternal affiliation’ that the average time-limit for filing an action for disavowal in Europe was one year (notably in Switzerland, Austria and Italy) and that a six-months period was by no means exceptional (it was so, for instance, in France, Poland and Spain). The report also indicated that in some countries (e.g., Germany, Switzerland, Austria and Hungary) the time-limit started to run from the date on which the husband became aware of the circumstances suggesting that he might not be the father of the child. However, such a provision would not have benefited to the applicant, who had doubts as to his fatherhood already at the time of Y's birth.

In view of the above, the Government submitted that in providing a shorter time-limit for the action for disavowal brought by the husband the national authorities did not exceed their margin of appreciation. They treated differently situations which were not analogous and which could not form the basis of a claim of discrimination.

The applicant alleged that contrary to other individuals in an analogous situation (namely, X, Y and Y's real father), he was subjected, in introducing an action for disavowal, to the limitation period set forth in Article 73 of the Civil Code. If Y wished to bring an action to discover her paternity, she would be in an even more preferential position, as she would not be required to establish any of the grounds set out in Articles 70 § 1 and 77 of the Civil Code and would not be subject to any limitation period.

As to the Government contention that Y's paternity could not be challenged by reason of the operation of the irrefutable presumption that a person conceived in wedlock should possess a status in conformity with his or her act of birth, the applicant submitted that it was far from clear that Y possessed such a status. In fact, she had never been treated as a child by the applicant and had never been acknowledged as such by his family.

The applicant considered that the difference in treatment complained of lacked any justification. The importance of legal certainty and the need to prevent blackmailing equally applied to all the parties and not only to the presumed father. In any event, the Government had failed to explain why it was necessary to apply a time-limit which was inflexible, subject to no exceptions and shorter than those applied by many other High Contracting Parties. Moreover, in many countries the time-limit did not start to run from the birth, as in Malta, and leave could be granted to bring the action outside the normal requirements.

The applicant finally pointed out that in a judgment of 2 June 2005 the Spanish Constitutional Court had declared that the one-year time-limit provided for by domestic law was unconstitutional in circumstances where it prevented from bringing an action for disavowal a husband who had obtained proof that the child born in wedlock was not his only after the expiry of the said time-limit. This conclusion had been considered a corollary of the principle of the dignity of the person, both from the perspective of the right of the son to know his identity as well as from the configuration of paternity as a projection of the person.

As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions — and to this extent it is autonomous —, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 184, § 33, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22).

The Court has found that the facts of the case fell within the ambit of Articles 6 § 1 and 8 of the Convention (see paragraphs 77 and 104 above). Moreover, the Court found a breach of these two provisions (see paragraphs 90 and 115 above).

Accordingly, Article 14 can apply in conjunction with Articles 6 § 1 and 8.

The Court observes that in the present case in bringing an action for disavowal the applicant was subject to time-limits which did not apply to other ‘interested parties’. In particular, according to Article 73(a) of the Civil Code, a husband should bring an action to disown a child within three months from the day of the birth. This time-limit was extended to six months in 1993 (see paragraphs 36 and 38 above). On the contrary, any person interested may impeach the legitimacy of a child born in wedlock by an action which is not subject to any time-limit (see Article 77 of the Civil Code, paragraph 39 above). Moreover, the domestic courts had held that a child has the right to challenge his or her paternity without restrictions when the status attributed by the act of birth conflicts with the factual reality (see paragraph 40 above).

The Court recalls that Article 14 safeguards individuals who are ‘placed in analogous situations’ against discriminatory differences of treatment (see Rasmussen, cited above, p. 13, § 35).

The Court does not overlook that there might have been differences between the applicant and the other interested parties — namely X, Y and Y's biological father. However, the fact that there are some differences between two or more individuals does not exclude that they might be in sufficiently comparable positions and interests. The Court considers that with regard to the interest of contesting a paternity status, the applicant and the ‘other interested parties’ were in analogous situations within the meaning of Article 14 of the Convention (see, mutatis mutandis, Rasmussen v. Denmark, no. 8777/79, Commission's report of 5 July 1983, Series A no. 87, p. 24, § 75).

According to the Court's case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it ‘has no objective and reasonable justification’, that is if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’ (see, among other authorities, Pla and Puncernau v. Andorra, no. 69498/01, § 61, 14 July 2004). In this connection, the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see, among other authorities, Fretté v. France, no. 36515/97, § 34, ECHR 2002-I, and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24–25, § 53).

In the Rasmussen case, the Court, having regard to the absence of a common ground in the Contracting States' legislation and to the margin of appreciation of the domestic authorities, held that the institution of different time-limits between husbands and wives could be justified by the desire of ensuring legal certainty and of protecting the interests of the child, and that it did not exceed a reasonable relationship of proportionality (Rasmussen, cited above, pp. 15–16, §§ 41–42).

The present case is, however, distinguishable from that of Rasmussen, where the applicant had an opportunity to disavow the child during the five years subsequent to the birth and within twelve months after he had become cognizant of the circumstances affording grounds for contesting paternity. As noted above (see paragraphs 80, 87 and 108), Mr Mizzi never had such an opportunity. The rigid application of the time-limit coupled with the Constitutional Court's refusal to allow an exception had deprived him of the exercise of the rights guaranteed by Articles 6 and 8 of the Convention, which were and still are, on the contrary, enjoyed by the other interested parties.

Under these circumstances, the Court cannot conclude that the difference in treatment complained of was proportionate to the aims sought to be achieved.

It follows that there had been a violation of Article 14, read in conjunction with Articles 6 § 1 and 8 of the Convention.