EHRM, 27-04-2010, nr. 20674/07

The applicant, Mr Andrzej Klocek, is a Polish national who was born in 1934 and lives in Kraków. He is represented before the Court by Ms M. Juśkiewicz, a lawyer practising in Kraków. The Polish Government (‘the Government’) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant complained under Article 8 of the Convention that Poland has failed to discharge its positive obligation to secure him effective respect for his private and family life, in particular by not providing him with the legal means for challenging his paternity, despite scientific progress and the existence of new methods of determining paternity.

Under Article 14 of the Convention, read in conjunction with Article 8 of the Convention, the applicant complained that he had been treated in a discriminatory manner in comparison with fathers whose children are born in wedlock, as he did not have a right of action to challenge paternity.

The applicant complained under Articles 8 and 14 of the Convention that he could not effectively contest his paternity, which constituted a violation of his right to family life and amounted to discriminatory treatment.

The relevant articles of the Convention read as follows:

The Government first submitted that the applicant had failed to exhaust all available domestic remedies because he should have lodged a constitutional complaint with the Constitutional Court requesting it to declare null and void the provisions on the basis of which the domestic courts finally dismissed his claim. Relying on the relevant provisions of the Code of Civil Proceedings, the applicant could then have sought the re-opening of the proceedings in which his paternity had been established.

The Government further submitted that the applicant could have made use of the possibility provided for by section 86 of the Code, namely he could have requested the public prosecutor to lodge on his behalf a claim to deny his paternity. He could also have requested the Ombudsman to bring such an action on his behalf.

The applicant's lawyer did not comment on the Government's submissions as regards non-exhaustion of domestic remedies. She submitted that the applicant had been discriminated against because not being the husband of the child's mother, he could not challenge his paternity which had been established at a time when DNA testing was not available.

As regards the Government's pleas on inadmissibility for non-exhaustion of domestic remedies, the Court does not consider it necessary to examine them, since the complaint under Article 8 is in any event inadmissible for the reasons which follow.

The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. However, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective ‘respect’ for private or family life. The boundaries between the State's positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are 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 the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Shofman v. Russia, no. 74826/01, §§ 33 and 34, 24 November 2005). Furthermore, even in relation to the positive obligations flowing from the first paragraph, ‘in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance’ (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 41).

There is no indication that the conclusions reached by the domestic authorities in this respect were not ‘in accordance with the law’. The Court is prepared to accept that the lack of a direct legal mechanism to enable the applicant to protect his right to respect for his private life can generally be explained by the ‘legitimate interest’ in ensuring legal certainty and security of family relationships and by the need to protect the interests of children (see Rasmussen v. Denmark, 28 November 1984, § 41, Series A no. 87, p. 15). The Court is of the opinion that, with the passage of time, the rule of legal certainty gradually prevails over the need to protect the interest of concerned parties, especially children who are no longer minors. It remains to be ascertained whether in the specific circumstances of the present case a fair balance has been preserved between the interest of the applicant and the general interest (see Paulík v. Slovakia, no. 10699/05, § 44, ECHR 2006-XI).

The Court notes that the applicant's paternity was determined judicially on the basis of the evidence which was available at the relevant time.

The Court further notes that the applicant did not appeal against the domestic court's decision establishing his paternity and that for many years he complied with the court's order and contributed to the maintenance of P. and her mother.

The Court also takes into consideration that the applicant only sought to contest his paternity some 20 years after it had been established. By that stage his alleged son was already 23 years' old. The applicant made use of a remedy which was not accessible to him in law, namely he lodged a claim with the court to deny his paternity of P. The claim was dismissed by the domestic court on the ground of res iudicata. The court also examined the applicant's claim as if it were a request for re-opening and found that the pre-requisites for re-opening had not been fulfilled and, moreover, that the applicant did not have legal standing to bring an action to challenge his paternity.

The Court considers that had the applicant presented the domestic authorities with sufficient new evidence to deny his paternity and had the authorities then refused to re-examine the matter, a finding of a violation of the relevant provisions of the Convention could not be excluded (see Paulík, cited above, §§45–47). However, in the present case there is no indication that the applicant had any evidence such as the results of a DNA test which could prove his allegations. His attempt to contest his paternity of P. was thus based on his own personal conviction that he was not P's father. For the Court, the emergence of technical or scientific developments making it possible to verify or challenge the accuracy of a finding of paternity made in the past does not of itself give rise to a right under Article 8 of the Convention to have that finding re-opened. It is for the applicant to present the authorities with reasonable and sufficient evidence to support his allegations (see, Darmoń v. Poland (dec.) 7802/05).

Taking into consideration all the above circumstances the Court does not find it established that the authorities failed to strike a fair balance between the general interest in ensuring legal certainty of family relationships and the applicant's right to have his judicially established paternity reviewed (see, Darmoń, cited above).

The Court therefore finds that the application does not disclose any appearance of a violation of Article 8 of the Convention.

It follows that the complaint under Article 8 is manifestly ill-founded.

As regards the complaint under Article 14, the Court notes that after the Kraków District Court's decision of 24 February 1986 declaring the applicant to be P.'s father and after the expiry of the six-month time-limit referred to in Article 63 of the Family and Custody Code, there are no legal means to challenge paternity available to the mother, the mother's husband or the putative father. Thus, the legal position of all those involved in the present case is similar.

It follows that the complaint under Article 14 of the Convention is likewise manifestly ill-founded.

In these circumstances the Court concludes that the application is manifestly ill-founded as a whole and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously.

Declares the application inadmissible.

Lawrence Early

Registrar

Nicolas Bratza

President