{"id":2307,"date":"2019-04-27T18:28:36","date_gmt":"2019-04-27T18:28:36","guid":{"rendered":"https:\/\/laweuro.com\/?p=2307"},"modified":"2019-07-07T16:08:48","modified_gmt":"2019-07-07T16:08:48","slug":"case-of-m-t-v-ukraine","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=2307","title":{"rendered":"CASE OF M.T. v. UKRAINE (European Court of Human Rights)"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF M.T. v. UKRAINE
\n(Application no. 950\/17)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n19 March 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of M.T. v. Ukraine,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n

Paulo Pinto de Albuquerque, President,
\nFarisVehabovi\u0107,
\nCarlo Ranzoni, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 26 February 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 950\/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a national of the United States of America, Mr M.T. (\u201cthe applicant\u201d), on 20\u00a0December 2016. The Vice-President of the Section decided that the applicant\u2019s name should not be disclosed (Rule 47 \u00a7 4 of the Rules of Court).<\/p>\n

2.\u00a0\u00a0The applicant was represented by Mr L.\u00a0Drozdovskyy, a lawyer practising in Kyiv. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0I.\u00a0Lishchyna.<\/p>\n

3.\u00a0\u00a0 The applicant complained under Articles 6 and 8 of the Convention that the domestic courts had failed to establish his paternity restricting thereby his right of access to a court.<\/p>\n

4.\u00a0\u00a0On 20 March 2017 notice of the application was given to the Government.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

5.\u00a0\u00a0The applicant was born in 1946 and currently lives in Berlin, Germany.<\/p>\n

6.\u00a0\u00a0In 2005 he was an English teacher in a school in Kyiv, Ukraine. At that time he entered into private relations with a married woman living in Kyiv. In 2006 the woman gave birth to a child. Her husband was indicated as the father in the child\u2019s birth certificate. In 2007 a DNA test was performed proving that the applicant was in fact the father of the child. The applicant was not prevented from having access to the child by her mother, who accepted financial support from him on a monthly basis. The applicant bought a car for the child\u2019s mother. In 2011 he wrote a will bequeathing all his property to the child.<\/p>\n

7.\u00a0\u00a0The applicant had regular contact with the child until 2015 when the mother informed the applicant that she had divorced her husband and that she had decided to marry a German national and move with the child to Germany. As the applicant opposed the decision to emigrate to Germany, the mother denied him access to the child and prevented him from communicating with the child.<\/p>\n

8.\u00a0\u00a0In June 2015 the applicant initiated proceedings before the Darnytskyy District Court of Kyiv (\u201cthe District Court\u201d) seeking recognition of his paternity and to have the child\u2019s birth certificate amended accordingly.<\/p>\n

9.\u00a0\u00a0During the hearing the mother of the child admitted that the applicant had provided regular financial support and had taken part in the upbringing and education of the child. However, she submitted that the applicant\u2019s claims were time-barred under Article 129\u00a0\u00a7\u00a02 of the Family Code, which provided a one-year time-limit for such claims (see paragraph 15 below). The applicant contended that he had delayed his lawsuit because he had not wished to disturb the child\u2019s family situation and he had not been prevented from communicating with the child on a regular basis until 2015. Only when the child\u2019s mother had decided to emigrate to another country with the child had he decided to seek formal recognition of his paternity.<\/p>\n

10.\u00a0\u00a0On 17 November 2015 the District Court allowed the applicant\u2019s claims, declaring him the father of the child and ordering the amendment of the child\u2019s birth certificate. The District Court considered that the applicant had missed the time-limit for valid reasons. It took into account the applicant\u2019s argument that he had not wished to disturb the family and cause any harm to the child with a lawsuit during the long period when the mother had in fact assisted him in having regular access to the child.<\/p>\n

11.\u00a0\u00a0On 3 February 2016 the Kyiv Court of Appeal overturned the District Court\u2019s decision and dismissed the applicant\u2019s claim as time-barred. The appellate court stated that Article 129\u00a0\u00a7\u00a02 of the Family Code provided a one-year time-limit, which had started to run from the moment the applicant had found out or should have found out about his paternity. The applicant had become aware of his paternity in 2007 when the DNA test had been performed (see paragraph 6 above); however he had applied to the court in 2015 (see paragraph 8 above), which had been too late.<\/p>\n

12.\u00a0\u00a0The applicant appealed on points of law, arguing that the Court of Appeal had applied the statute of limitations without duly taking into account the reasons for which he had delayed his action and without examining the child\u2019s interests.<\/p>\n

13.\u00a0\u00a0On 13 July 2016 the Higher Specialised Civil and Criminal Court dismissed the applicant\u2019s appeal on points of law, without examining whether the applicant had provided valid reasons which could justify his non-compliance with the time-limit set out in Article 129\u00a0\u00a7\u00a02 of the Family Code.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n

A.\u00a0\u00a0Family Code of 10 January 2002<\/strong><\/p>\n

14.\u00a0\u00a0Under Article 129\u00a0\u00a7\u00a01 of the Family Code, an individual, who considers that he has fathered a child with a woman who is married to another man, is entitled to submit a claim against the woman\u2019s husband to have his paternity recognised if the latter has been registered as the child\u2019s father.<\/p>\n

15.\u00a0\u00a0Article 129\u00a0\u00a7 2 of the Family Code provides that the limitation period of one year applies to the claims for establishing paternity of a child and starts to run from the day when the claimant found out or should have found out about his paternity.<\/p>\n

B.\u00a0\u00a0Civil Code of 16 January 2003<\/strong><\/p>\n

16.\u00a0\u00a0Article 267\u00a0\u00a7\u00a05 of the Civil Code provides that if a court finds that the limitation period has been missed for a valid reason, the right violated should be subject to protection.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n

17.\u00a0\u00a0The applicant complained under Article 8 of the Convention that the domestic courts had failed to establish his paternity of the minor child.<\/p>\n

This provision reads as follows:<\/p>\n

\u201c1. Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n

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.\u201d<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

18.\u00a0\u00a0The Court has found on numerous occasions that proceedings concerning the establishment of, or a challenge against, paternity concerned that man\u2019s \u201cprivate life\u201d under Article\u00a08, which encompasses important aspects of one\u2019s personal identity (see A.L.v. Poland, no. 28609\/08, \u00a7 59, 18 February 2014, with further references).<\/p>\n

19.\u00a0\u00a0Accordingly, Article 8 is applicable to the facts of the present case.<\/p>\n

20.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0\u00a0Arguments of the parties<\/em><\/p>\n

21.\u00a0\u00a0The applicant submitted that the domestic courts had rigidly applied the statute of limitations when refusing his paternity claim without examining whether there had been valid grounds for renewing the time\u2011limit. In that regard no analysis of the interests of the child and those of the involved adults had been provided. The applicant insisted that, while he had delayed the lawsuit precisely to preserve the family situation and well-being of the child, the legal father had demonstrated a lack of interest in his legal daughter when her mother decided to emigrate with the child to Germany. The applicant further contended that the child\u2019s mother\u2019s decision to emigrate had also destabilised the family situation of the child. Therefore it had been essential that the courts examine all the facts and the interests at issue when determining whether the renewal of the time-limit and examination of the case on the merits had been justified. The applicant then informed the Court that he had settled down in Germany in order to be able to see his daughter.<\/p>\n

22.\u00a0\u00a0The Government submitted that the statute of limitations applied by the domestic courts pursued the legitimate aim of protecting the stability of the child\u2019s family situation. In the present case the child had regarded another man as her father for a long period of time, while treating the applicant as a friend of the family. The disclosure of the new information as to the applicant\u2019s status might have been detrimental to the child.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

23.\u00a0\u00a0The Court notes that in the present case what is in issue is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicants\u2019 private life in a dispute between private parties. In the cases of this type regard must be had to the fair balance that has to be struck between the relevant competing interests (see, for example, Von\u00a0Hannover v. Germany (no. 2) [GC], nos. 40660\/08 and 60641\/08, \u00a7\u00a7\u00a098-99, ECHR 2012). Moreover, in all decisions concerning children their best interests should be of paramount importance (see Neulinger and Shuruk v. Switzerland [GC], no. 41615\/07, \u00a7 135, ECHR 2010).<\/p>\n

24.\u00a0\u00a0As regards the paternity disputes initiated by the putative biological fathers, the Court reiterates that despite the margin of appreciation afforded to the domestic authorities in this field, the biological father must not be completely excluded from his child\u2019s life unless there are relevant reasons relating to the child\u2019s best interests to do so (see, in that regard, Kautzor v.\u00a0Germany, no. 23338\/09, \u00a7 77, 22 March 2012, and Ahrens v.\u00a0Germany, no. 45071\/09, \u00a7 74, 22 March 2012). The Court has found a violation of Article 8 of the Convention where the domestic authorities refused to deal with the putative biological father\u2019s request to establish his paternity by mere reference to the recognition of paternity by another man, without, however, examining the factual background of the case (see, in that regard, R\u00f3\u017ca\u0144ski v. Poland, no. 55339\/00, \u00a7 78, 18 May 2006). By way of contrast, Article 8 was not violated where the domestic authorities refused to deal with such a request after they had carried out a thorough scrutiny of the interests of the involved individuals, attaching particular weight to the interests of the child, while not ignoring those of the putative biological father (see, in that regard, Kriszti\u00e1nBarnab\u00e1sT\u00f3th v. Hungary, no.\u00a048494\/06, \u00a7\u00a7 33-38, 12 February 2013).<\/p>\n

25.\u00a0\u00a0In the present case the domestic courts found that the applicant submitted his paternity claim outside the time-limit established by law. Under domestic law the courts had had powers to renew the time-limit provided that there had been a valid reason for doing so (see paragraph 16 above). When asking to renew the time-limit, the applicant insisted that he had missed it for good reasons \u2013 essentially because he had not wished to disturb the family situation of the child who had a legal father, as long as he had not been prevented from communicating with the child on a regular basis. Only when the applicant found out that the mother had decided to leave the country with the child, did he interfere (see paragraph 9 above). While these reasons were accepted as valid for renewing the time-limit and examining the claim on the merits by the first-instance court (see paragraph\u00a010 above), the court of appeal dismissed those arguments without providing any alternative reasons explaining its decision (see paragraph 11 above). Despite the child\u2019s complex factual situation, which involved the putative biological father, the legal father and the stepfather, the actual relationship of the child with those three men remained completely unexamined and no consideration was given to the question of whether or not the renovation of the time-limit for the applicant\u2019s claim and its examination on the merits would be in the best interests of the child. In that regard, no analysis was carried out to balance the child\u2019s interests with that of the applicant to have his paternity established in such circumstances. Despite the applicant\u2019s appeal on points of law (see paragraph 12 above), the Supreme Court did not address those issues in the course of its review of the case (see paragraph 13 above).<\/p>\n

26.\u00a0\u00a0The above procedural failings in the domestic proceedings lead the Court to conclude that the domestic appeal courts, in the factual and legal circumstances of the instant case, did not ensure the respect for the applicant\u2019s private life to which he was entitled under the Convention.<\/p>\n

27.\u00a0\u00a0There has therefore been a violation of Article 8 of the Convention.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6\u00a0\u00a7\u00a01 OF THE CONVENTION<\/p>\n

28.\u00a0\u00a0The applicant complained under Article 6\u00a0\u00a7\u00a01 of the Convention that the courts violated his right of access to court by having failed to address the substance of the issues in respect of his paternity claim.<\/p>\n

This provision reads, in so far as relevant, as follows:<\/p>\n

\u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n

29.\u00a0\u00a0The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. Having regard to the above findings and conclusion under Article 8, the Court considers that no separate issue arises concerning the alleged breach of Article 6\u00a0\u00a7\u00a01 of the Convention (see, mutatis mutandis, Phinikaridou v. Cyprus, no. 23890\/02, \u00a7\u00a071, 20 December 2007, andNovotn\u00fd v. the Czech Republic, no.\u00a016314\/13<\/a>, \u00a7 53, 7 June 2018, with further references).<\/p>\n

III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

30.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

31.\u00a0\u00a0The applicant claimed 30,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n

32.\u00a0\u00a0The Government contended that the claim was groundless.<\/p>\n

33.\u00a0\u00a0The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation in the present case. Ruling on an equitable basis, the Court awards the applicant EUR 4,500 in respect of non-pecuniary damage.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

34.\u00a0\u00a0The applicant also claimed EUR 24,522.65 in respect of costs and expenses.<\/p>\n

35.\u00a0\u00a0The Government contended that the claim was exorbitant and unsubstantiated.<\/p>\n

36.\u00a0\u00a0Regard being had to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award the sum of EUR 1,500 for costs and expenses.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

37.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 8 of the Convention;<\/p>\n

3.\u00a0\u00a0Holdsthat there is no need to examine the complaint under Article 6\u00a0\u00a7\u00a01 of the Convention;<\/p>\n

4.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n

(b)\u00a0\u00a0that 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;<\/p>\n

5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 19 March 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paulo Pinto de Albuquerque
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

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FOURTH SECTION CASE OF M.T. v. UKRAINE (Application no. 950\/17) JUDGMENT STRASBOURG 19 March 2019 This judgment is final but it may be subject to editorial revision. In the case of M.T. v. Ukraine, The European Court of Human Rights…<\/p>\n

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