Last Updated on May 13, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 36087/15
Waldemar GLAZER
against Poland
The European Court of Human Rights (First Section), sitting on 13 November 2018 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 11 July 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Waldemar Glazer, is a Polish national who was born in 1977 and lives in Legbąd.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
3. In 1993 the applicant was in an informal relationship with B. On 26 September 1994 B. gave birth to a boy, K.
4. On 8 November 1995 the applicant acknowledged his paternity of K. in proceedings before the Chojnów District Court (SądRejonowy). B. gave her consent to the acknowledgment, which was preceded by a blood test that did not exclude the applicant as the father. The parties concluded a settlement agreement under which the applicant was obliged to pay monthly child support. The applicant was represented by a guardian – his mother.
2. The applicant’s actions to have the recognition of a child declared null and void
5. On two occasions in 1997 the applicant lodged a statement of claim to have the recognition of paternity declared null and void (powództwo o ustaleniebezskutecznościuznania). He relied on the fact that he had been diagnosed with oligoasthenospermia. The statements of claim were either returned by the court or withdrawn by the applicant.
6. On 7 September 2010 the applicant decided to undergo a private DNA test. The test results excluded him as K.’s father. The test was conducted using material collected by a private detective and delivered to the laboratory by the applicant. He told the laboratory that the material had been obtained with the consent of K.’s guardian.
3. Proceedings initiated by the prosecutor
7. On an unspecified date the Chojnice district prosecutor lodged a statement of claim asking to annul the applicant’s recognition of paternity. He relied on the aforementioned results of the private DNA test and submitted that B. had agreed initially to undergo a DNA test together with her son K. but had subsequently refused to do so.
8. On 9 May 2013 the Chojnice District Court dismissed the request. The court held that the applicant had not rebutted the legal presumption of paternity as he had failed to prove, in accordance with Article 85 § 2 of the Family and Custody Code, that another man was more likely to be the father. The court pointed out that the applicant had confirmed that he had had sexual intercourse with B. twice, in 1993 and 1994.
9. The court did not accept the private DNA test as evidence. It found it unreliable owing to the manner in which the biological material had been collected, and against the principles of community life (zasadywspółżyciaspołecznego). The court found that neither B. nor K. had agreed to the private DNA test.
10. During the proceedings, the court ordered that DNA testing be carried out. However, the mother and K. refused to undergo a test. The court held that this fact alone was not enough to rebut the legal presumption. It based its reasoning in this part mostly on the Supreme Court’s judgment of 9 January 2011 (case no. II CSK 87/11). At the same time, the court did not allow evidence of anthropological research. It further held that the applicant’s oligoasthenospermia was not tantamount to being infertile since he was the father of two other children.
11. The applicant appealed against the judgment.
12. On 20 August 2013 the Słupsk Regional Court (SądOkręgowy) dismissed the applicant’s appeal. The court held that he could not lodge an action under Article 80 § 1 of the Family and Custody Code himself as more than one year had elapsed since the date of the recognition of the paternity. However, even assuming that the relevant time-limit had not yet expired, his claim would not have been successful since he would have been required to prove that the recognition of paternity had been affected by a defect in his “declaration of will” (oświadczeniewoli), as provided for by the relevant provisions of the Civil Code.
13. On 23 October 2014 the Supreme Court refused to entertain the cassation appeal lodged by the applicant. He was served with the decision on 12 January 2015.
B. Relevant domestic law and practice
1. Family and Custody Code
14. Under Article 80 § 1 of the Family and Custody Code (as applicable at the material time), a man who recognised his paternity of a child could, within one year, seek to annul the recognition of paternity on the grounds that he had made a defective “declaration of will”.
15. In respect of children born out of wedlock, Article 85 § 1 of the Code provides for the presumption that a man who had intercourse with the mother no more than 300 and no less than 181 days before the birth of a child is the father. Under Article 85 § 2, the fact that the mother during this period had intercourse with another man, may be the basis for rebuttal of the presumption only when the circumstances indicate that another man is more likely to be the father.
16. Under Article 86 of the Code (as applicable at the material time), the recognition of paternity may be challenged by a prosecutor at any time, as long as the child is alive.
2. Supreme Court’s case-law
17. In a judgment of 9 January 2011 (case no. II CSK 87/11) the Supreme Court held that a mother’s refusal to collect blood from her and the child for the purpose of conducting a DNA test could not be treated as a premise for rebutting the legal presumption of a man’s paternity of a child born in wedlock unless [the refusal] at the same time justified the conclusion that another man was more likely to be the father.
COMPLAINT
18. The applicant complained under Articles 6 and 8 of the Convention that he had not had the opportunity to challenge his paternity of K., since the domestic courts had failed to draw inferences from the mother and K.’s refusal to undergo a DNA test.
THE LAW
19. The applicant complained under Articles 6 § 1 and 8 of the Convention that he could not effectively contest his paternity of K.
20. The Court considers that the applicant has complained primarily about the unfavourable outcome of the proceedings in which he sought to have his recognition as K.’s father declared null and void. It finds that the complaint should be examined solely under Article 8 of the Convention (see A.L. v. Poland, no. 28609/08, § 43, 18 February 2014) which 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.”
A. Lawfulness and legitimate aim
21. The court decision refusing to allow the applicant to challenge his declaration of paternity constituted aninterference with his right to respect for his private life. It was based on Articles 85 and 86 of the Family Code and was therefore lawful, pursuing the legitimate aim of ensuring legal certainty and security of family relationships.
B. Necessity of the interference in a democratic society
22. 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 of 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.
23. In the instant case, the applicant’s paternity was established on the basis of his voluntary declaration. He subsequently, on two occasions, tried to bring an action to deny his paternity of K.; however, despite his doubts as to paternity, for unknown reasons, he decided not to pursue it (see paragraphs 4 and 5).
24. The Court observes that in 2010 the applicant underwent a DNA test which excluded him as the child’s father. Although he was himself prevented from bringing an action after the expiry of the relevant time-limit, it was open to him to request the prosecutor to bring such an action on his behalf, even after the expiry of that period. The applicant’s request was successful and the prosecutor lodged a claim on his behalf. The claim was subsequently examined on the merits at two levels of court with full jurisdiction as to the facts and law (see paragraphs 8 -12 above).
25. The Court observes that the District Court did not accept the private DNA test as it found it unreliable owing the manner in which the biological material had been obtained. It further ordered new tests, which both B. and K. refused to undergo (see paragraph10 above). This approach was subsequently endorsed by the Regional Court (see paragraph 12 above). However, as it emerges from the Court’s case-law, while 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).
26. The Court further observes that in the present case the applicant did not submit any other convincing evidence to the domestic courts to substantiate his doubts as to his paternity. In particular, he did not present any relevant evidence that another man was more likely to be the father.
27. Moreover, there is no indication that in the present case the manner in which the authorities exercised their powers was arbitrary or perfunctory. The Court considers that in circumstances of the present case, and in view of K.’s clear position on the issue, it was justifiable for the domestic authorities to give greater weight to his interests than to the interests of the applicant in obtaining the determination of a biological fact (seeİyilik v. Turkey, no.2899/05, § 34, 6 December 2011, and Nylundv. Finland (dec.), no.27110/95, ECHR 1999‑VI).
28. 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 6 December 2018.
Abel Campos KsenijaTurković
Registrar President
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