B.\u00a0\u00a0Merits<\/strong><\/p>\n19.\u00a0\u00a0The applicant submitted thatthe Court of Appeal had rejected his claim arbitrarily without relying on any evidence in the file and in clear disregard of both the applicant\u2019s and the child\u2019s mother\u2019s submissions, both of whom never denied that they had had relations at the material time.<\/p>\n
20.\u00a0\u00a0The Government submitted that the court\u2019s refusal to examine the claim was based on clear provisions of domestic law, pursued the aim of protecting the child\u2019s interests and was necessary in the circumstances because the interests of the child prevailed over those of the parents or putative parents.<\/p>\n
21.\u00a0\u00a0The Court notes that the essence of the applicant\u2019s claim is not that the State should have refrained from acting but rather that the domestic courts had failed to resolve the question of his biological relationship with the child, thereby ensuring \u201crespect\u201d for the applicant\u2019s \u201cprivate life\u201d.<\/p>\n
22.\u00a0\u00a0The Court reiterates that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in 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\u00a0Von Hannover v. Germany (no. 2) [GC], nos. 40660\/08 and 60641\/08, \u00a7\u00a098, ECHR 2012).The boundary between the State\u2019s positive and negative obligations under Article 8 does not lend itself 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 relevant competing interests (ibid., \u00a7 99).<\/p>\n
23.\u00a0\u00a0However, in the present case the Court of Appeal did not examine and balance all the interests at stake, notably the interests of the putative father and those of the child (compareTavl\u0131 v. Turkey, no. 11449\/02, \u00a7 34, 9\u00a0November 2006). The court did not perform that examination because itultimately ruled that the applicant did not have a right to challenge his paternity on the basis that at the time of accepting paternity, he knew that he was notthe biological father of the child. This ruling was based on a clear provisionof domestic law, namely Article 56 \u00a7 2 of the Marriage and Family Code of Ukraine, as in force at the material time (see paragraph 13 above) and indeed there may be justified restrictions on the withdrawal of a decision to accept paternity where the man knew at the time of that decision that he was not the father (compare K\u0148\u00e1kal v. Czech Republic (dec.), no.\u00a039277\/06, 8 January 2007). However, the question in the present case is not about the legitimacy of such a legal restriction but whether the domestic courts, notably the Court of Appeal, reached such acrucial factual conclusion in the course of a proper decision-making procedure which was free from arbitrariness.<\/p>\n
24.\u00a0\u00a0In that regard the Court reiterates that it cannot question the assessment of the domestic authorities unless there is clear evidence of arbitrariness (see Sisojeva and Others v. Latvia (striking out) [GC],no.\u00a060654\/00, \u00a7 89, ECHR 2007\u2011I). Moreover, the appearance of arbitrariness may be disclosed by the cumulative effect of the procedural failings on the part of the domestic courts resulting in a violation of Article\u00a08 of the Convention (see, for example and in respect to the right to<\/p>\n
receive medical care and information,A.K.v. Latvia, no. 33011\/08, \u00a7\u00a094, 24\u00a0June 2014).<\/p>\n
25.\u00a0\u00a0In the domestic proceedings the applicant and the child\u2019s motherboth admitted that they had had relations at the material time. Neither of the parties argued that the applicant was aware that he was not the father of the child whenhe accepted paternity. On the contrary, in his claim the applicant stated that he had had no doubts about his paternity for many years until 2005 (see paragraph 7 above). In her appeal the child\u2019s mother contended that she had never doubted the applicant\u2019s biological paternity and her grounds of appeal relatedessentially to a challenge to thereliability of the paternity test whichdisproved her statement (see paragraph 9 above). In these circumstances it is not clear why the Court of Appeal completely disregarded this important part of the parties\u2019 submissions and examined the appeal on grounds which were never advanced by any party to the dispute. Moreover, in making such a crucialfactual finding, which was a totally new findingand,apparently,surprising to both parties, the Court of Appeal provided general reasoning merely based on assumption which were unsupported by any specific evidence. It is important to emphasise that this new factual finding was based on the same file and evidence which had been examined in full trial by the first-instance court. The Court of Appeal, however, overturned the factual conclusions of the first-instance court without reference to any new piece of evidence and without explaining why the factual conclusions of the first-instance court had been defective. Despite the applicant\u2019s appeal on a point of law (see paragraph 11 above), the Supreme Court did not address those issues in the course of review of the case (see paragraph 12 above). In such circumstances it does not appear to the Court that the decision-making process was fair and free from arbitrariness.<\/p>\n
26.\u00a0\u00a0Accordingly, the above procedural failings in the course of the domestic proceedings lead the Court to conclude that the domestic courts did notensure the respect for the applicant\u2019s private life to which he is entitled under the Convention.<\/p>\n
27.\u00a0\u00a0There has therefore been a violation of Article 8 of the Convention.<\/p>\n
II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n
28.\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>\n29.\u00a0\u00a0The applicant claimed 14,413.84 Ukrainian hryvnias (UAH) in respect of pecuniary damage and 15,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n
30.\u00a0\u00a0The Government\u2019s position wasthat the claims were unsubstantiated.<\/p>\n
31.\u00a0\u00a0The Court considers that the applicant has not shown the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have suffered anguish and distress on account of the violation found in the present case. Ruling on an equitable basis, the Court awards the applicant the sum of EUR 4,500 in respect of non-pecuniary damage.<\/p>\n
B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n32.\u00a0\u00a0The applicant also claimed UAH\u00a064,130 (approximately EUR 4,008 at the time of the claim) for legal fees incurred before the Court and UAH\u00a045.92 (approximately EUR 3 at the time of the claim) for postal expenses.<\/p>\n
33.\u00a0\u00a0The Government considered that the legal fees were exorbitant and unsubstantiated and that the postal expenses were only partly supported by the relevant evidence.<\/p>\n
34.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award, in addition to the legal aid already granted (see paragraph 2 above), the sum of EUR 1,000 for costs and expenses for the proceedings before it.<\/p>\n
C.\u00a0\u00a0Default interest<\/strong><\/p>\n35.\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>\n1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n
2.\u00a0\u00a0Holdsthat there has been a violation of Article 8 of the Convention;<\/p>\n
3.\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 and five hundred euros), plus any tax that may be chargeable,in respect of non-pecuniary damage;<\/p>\n
(ii)\u00a0\u00a0EUR 1,000 (one thousand 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
4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n
Done in English, and notified in writing on 4 December 2018, 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 FarisVehabovi\u0107
\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\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n