Last Updated on October 3, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 48493/11
Zenon BĄKOWSKI
against Poland
The European Court of Human Rights (First Section), sitting on 26 March 2019 as a Committee composed of:
KsenijaTurković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 25 July 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Zenon Bąkowski, is a Polish national, who was born in 1953 and lives in Gliwice. He was represented before the Court by Mr P. Kudełko, a lawyer practising in RudaŚląska.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Between 2002 and 2004 the applicant was in a relationship with a certain E.B. They were not married. On 20 June 2003 E.B. gave birth to a daughter, M.
5. On 3 June 2004 the applicant acknowledged paternity of M. at the Gliwice Registry Office (UrządStanuCywilnego). In accordance with Article 77 § 1 of the Family and Custody Code, E.B. gave her consent to the applicant’s acknowledgment of paternity.
6. On an unknown date in 2004 the couple separated. Subsequently, E.B. spent some time abroad and during that period the applicant cared for M. Upon her return, E.B. informed the applicant that he was not the father of M. Consequently, the applicant conducted a DNA test in a private laboratory. According to the applicant the test was conducted on the basis of his and M.’s saliva samples. The results of the DNA test, received by the applicant on 21 January 2008, confirmed that he was not M.’s father.
7. As the applicant could not personally initiate civil proceedings for an annulment of his acknowledgment of paternity, as a result of the expiry of the time‑limit specified in Article 80 § 1 of the Family and Custody Code (see paragraph 16 below), on 4 February 2008 he asked the Gliwice District Prosecutor to file a claim in his name. In his application, he submitted that he had recognised paternity in relation to M. on the basis of E.B.’s assurances that he was her daughter’s biological father. However, given E.B.’s lifestyle he had started having doubts as to his paternity.
8. On 6 March 2008 the prosecutor replied, stating briefly that the DNA test results submitted by the applicant were not reliable and could not be used as evidence in court. Consequently, she could not file an application for the annulment of acknowledgment of paternity on his behalf. She further instructed the applicant that, in accordance with the relevant legal procedures, in order to obtain valid proof, he should undergo a DNA test at a forensic laboratory, for example the one at Silesia Medical University.
9. On 15 April 2008 the Gliwice District Prosecutor, in reply to the applicant’s further request, informed him that there were insufficient grounds to file a claim for the annulment of acknowledgment of paternity on his behalf. The prosecutor relied on the fact that E.B. had unequivocally confirmed that the applicant was M.’s father and had further refused to consent to M. and herself undergoing a blood test.
10. The prosecutor observed that the applicant could make an application to the Family Court under Article 97 § 2 of the Family Code, asking it to order the mother to undergo a blood test. However, she stated that, even if the court allowed the applicant’s request, there was no legal mechanism to enforce such a decision. The prosecutor further suggested that the only way for the applicant to obtain a relevant blood test result would be to come to an agreement with E.B. She concluded that the issue of whether or not a claim for an annulment of acknowledgment of paternity could be filed would only be examined again upon receiving the results of a DNA test from a forensic laboratory (from Silesia Medical University or a similar institution).
11. Lastly, the district prosecutor, relying on the case-law of the Supreme Court (the decision of 5 May 2000 II CKN 869/00 and the resolution of 7 June 1971 III CZP 87/70), stated that the prosecution services were always motivated by the child’s best interests, and the child’s best interests prevailed over the need to determine the family composition in terms of biological ties.
12. Subsequently, on 21 May 2009 the applicant lodged an application with the Gliwice District Court under Article 97 § 2 of the Family Code, asking the court to compel E.B. to agree to M. and herself undergoing blood tests in order to determine whether the applicant was M.’s father.
13. In her submissions to the court, E.B. stated that the applicant had acknowledged his paternity of M., a year after her birth. Before he had given the acknowledgment, he had not indicated a wish to conduct a DNA test. Nor had he exercised his right to seek to annul the acknowledgment within the prescribed time-limit. For those reasons, and relying on the best interests of the child, E.B. maintained her refusal to consent to a DNA test.
14. On 25 November 2010 the Gliwice District Court dismissed the applicant’s application. The court held that there was not enough evidence to cast doubt on his paternity of M. It further held that the DNA test of 21 January 2008 was not reliable. Since the child’s mother had confirmed that the applicant was the child’s father, and there was no evidence that another person could be the child’s father, the mother’s refusal to undergo a blood test could not be considered as being against the child’s best interests.
15. On 10 March 2011 the Gliwice Regional Court dismissed an appeal by the applicant. The court relied on the reasons given by the District Court. It further held that, apart from the private DNA test, the applicant had not submitted any other evidence which would have substantiated his allegations that he was not M.’s father. In particular, the applicant had failed to indicate that another man was more likely to be M.’s father.
B. Relevant domestic law and practice
16. Under Article 80 § 1 of the Family and Custody Code (as applicable at the material time), a man who acknowledged his paternity of a child could, within one year, seek to annul that acknowledgment of paternity on the grounds that he had made a defective “declaration of will” (oświadczeniewoli).
17. Under Article 86 of the Code (as applicable at the material time), an acknowledgment of paternity could be challenged by a prosecutor at any time, as long as the child was alive.
COMPLAINT
18. The applicant complained under Article 8 of the Convention that he had no possibility of challenging his paternity of M., as the prosecution authorities had found the DNA evidence that he had obtained to be unreliable and the mother had refused to consent to M. undergoing testing in a forensic laboratory.
THE LAW
19. The applicant complained under Article 8 of the Convention that he could not effectively contest his paternity of M. Article 8, in so far as relevant, provides as follows:
“1. Everyone has the right to respect for his private and family life….
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society (…) for the protection of the rights and freedoms of others.”
A. The parties’ submissions
20. The Government submitted that the domestic authorities had correctly balanced the concurrent rights of the applicant on the one hand and of M. on the other. They were further of the opinion that the prosecutor had analysed the case in detail. The prosecutor’s decision had been based on the child’s best interests and had taken into account all the evidence gathered in the course of the proceedings. Moreover, it had not been arbitrary.
21. The applicant maintained his complaint.
B. The Court’s assessment
1. Lawfulness and legitimate aim
22. The prosecutor’s decision to refuse the applicant’s request to bring an action on his behalf constituted an interference with his right to respect for his private life. It was based on Articles 85 and 86 of the Family and Custody Code and was therefore lawful, pursuing the legitimate aim of ensuring legal certainty and security of family relationships.
2. Necessity of the interference in a democratic society
23. It remains to be examined whether in the present case the authorities struck a fair balance between the general interest in the protection of legal certainty in family relationships, the protection of the interests of the child and the applicant’s interest in having his paternity reviewed in the light of the biological evidence.
24. In the instant case, the applicant’s paternity was established on the basis of his voluntary declaration. The Court notes that he did not seek the annulment of his acknowledgement of paternity within the statutory prescribed time-limit as at that time he did not have any doubts regarding his paternity (see paragraph 5 above).
25. The Court further notes that in 2008 the applicant underwent a private DNA test which excluded him as the child’s father. Although at that time he was himself prevented from bringing an action, since the relevant time-limit had expired, it remained open to him to request the prosecutor to bring an action on his behalf (see paragraph 7 above).
26. In this regard the Court observes that the prosecutor carefully examined the merits of the case, noted the applicant’s arguments and assessed the available evidence (see paragraphs 8-10 above). The domestic authorities took into account the differing interests of the applicant and M., carefully balanced those interests, and provided detailed reasons for their findings.
27. Furthermore, the Court considers that, contrary to the case of Mizzi v. Malta, in the present case the applicant did not submit any convincing scientific evidence to the prosecutor to substantiate his doubts as to his paternity (see Mizzi v. Malta, no. 26111/02, § 76, ECHR 2006‑I (extracts); Darmoń v. Poland (dec.), no. 7802/05, 17 November 2009; and M.D. v. Bulgaria (dec.), no. 37583/04, 15 November 2011). In that connection, the domestic authorities stated that the DNA test results submitted by the applicant were not reliable (see paragraphs 8, 10, 14 and 15 above). However, the applicant did not present any other relevant evidence in support of his allegations. In particular, he did not submit that another man was more likely to be M.’s father.
28. In so far as the applicant submitted that the authorities had refused to compel the mother and the child to undergo a DNA test, the Court observes that as it emerges from its case-law, while, on the one hand, people in the applicant’s situation have a vital interest in receiving the information necessary to uncover the truth about an important aspect of their personal identity, the protection of third persons may, on the other hand, preclude their being compelled to make themselves available for medical testing of any kind, including DNA testing (see Mikulić v. Croatia, no. 53176/99, § 64, ECHR 2002‑I, and Bagniewski v. Poland,no. 28475/14, § 54, 31 May 2018).
29. Moreover, there is no indication that the manner in which the authorities exercised their powers was arbitrary or perfunctory. The Court considers that given the circumstances of the present case, and in view of M.’s young age, it was justifiable for the domestic authorities to give greater weight to the interests of the child than to the interest of the applicant in obtaining the determination of a biological fact (see İyilik v. Turkey, no. 2899/05 § 34, 6 December 2011; Nylund v. Finland (dec.), no. 27110/95, ECHR 1999‑VI; and Kňákal v. the Czech Republic (dec.), no. 39277/06, 8 January 2007).
30. In the light of the foregoing and having regard to the wider margin of appreciation left to the States in matters regarding the legal status of a child, the Court concludes that a fair balance has been struck between the interests of the applicant and the general interest in ensuring legal certainty and the security of family relationships, as well as the need to protect the interests of the child.
31. The Court is therefore satisfied that the reasons adduced by the national authorities to justify the interference with the applicant’s rights were relevant and sufficient. Consequently, it considers that the measure complained of can be regarded as necessary in democratic society in order to protect the rights of others.
32. It follows that the application is manifestly ill‑founded 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.
Done in English and notified in writing on 18 April 2019.
Renata Degener KsenijaTurković
Registrar President
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