In the case of Laakso v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
7361/05) against the Republic of Finland lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Finnish national, Mr Tapio Olavi Laakso (“the
applicant”), on 28 February 2005.
The applicant was represented by Mr Jaakko Tuutti, a lawyer practising in Tampere. The Finnish Government (“the Government”) were represented by
their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The applicant alleged, in particular, that the time-limit for establishing the paternity of children born before the entry into
force of the new Paternity Act on 1 October 1976 gave rise to a violation of
his rights under Articles 8 and 14 as he could not have paternity established, while children born after 1 October 1976 did not face any such restrictions.
On 24 April 2008 the President of the Fourth
Section decided to communicate the complaint concerning the impossibility to
establish paternity and the discrimination complaint to the Government. It was also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1959 and lives in Tampere.
The applicant was born out of wedlock. In 1961
the District Court, after having heard witnesses on the relationship between
the applicant’s mother and K.R., ordered K.R. to pay child support to the
applicant. K.R. had also told the applicant and his mother that he was in fact
the father of the applicant.
On 1 October 1976 the Paternity Act (isyyslaki, lagen om faderskap) came into force. The transitional provisions
in the Implementing Act of the Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om faderskap) state
that paternity proceedings with regard to a child born before the entry into
force of the law had to be initiated within five years, that is, before 1 October 1981. Moreover, no claim could be examined after the death of the father. No
such restrictions exist for children born after the entry into force of the
Paternity Act.
K.R. died in August 1999. Subsequently, the applicant found out that K.R. had not been legally registered as his father.
On 15 May 2003 the applicant initiated paternity
proceedings against the heirs of K.R. in the Helsinki District Court (käräjäoikeus, tingsrätten). He requested the court to confirm that K.R. was his father. He referred, inter alia, to the Convention.
On 22 August 2003 the District Court dismissed
the applicant’s claim. It found that as the applicant was born before the entry
into force of the Paternity Act, he should have brought the claim within the
statutory five-year time-limit and at the latest on 1 October 1981. Making a
reference to the Convention did not change the fact that the applicant had lost
his right to initiate the proceedings on 1 October 1981. His claim was
therefore time-barred.
On 27 August 2003 the applicant appealed to the
Helsinki Court of Appeal (hovioikeus, hovrätten) claiming, inter alia, that the District Court could not just ignore the Convention as it was to
be given priority vis-à-vis the national legislation. Moreover, nowadays it was possible to obtain conclusive evidence, through DNA tests, to establish paternity. Section 7, subsection 2, of the Implementing Act of the Paternity
Act had in fact become obsolete, a provision that had lost its acceptability
and applicability.
On 19 May 2004 the Court of Appeal upheld the
District Court’s decision. It found, in addition to the District Court’s
reasoning, that no legal impediment had prevented the applicant from initiating
the proceedings within the five-year time-limit and that this time-limit was
unconditional.
On 27 May 2004 the applicant appealed to the
Supreme Court (korkein oikeus, högsta domstolen), reiterating the
grounds for appeal already presented before the Court of Appeal.
On 4 February 2005 the Supreme Court refused the
applicant leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional and other provisions
The Constitution of Finland (perustuslaki, grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to everyone equality before the law and forbids discrimination of any kind:
“Everyone is equal before the law.
No one shall, without an acceptable
reason, be treated differently from other persons on grounds of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that
concerns his or her person. ...”
Article 10 of the Constitution guarantees the right
to privacy:
“Everyone’s private life, honour and the sanctity of the home
are guaranteed. More detailed provisions on the protection of personal data are
laid down by an Act.”
Article 21, paragraph 1, of the Constitution
guarantees to everyone the right to have one’s case dealt with by a court of
law:
“Everyone has the right to have his or her case dealt with
appropriately and without undue delay by a legally competent court of law or
other authority ...”
Article 106 of the Constitution gives a court of
law the right to give primacy to the Constitution when the application of an
Act would conflict with the Constitution:
“If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court shall give primacy to the provision in the Constitution.”
According to Chapter 12, section 1, subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken;
Act no. 444/1999):
“A minor who has attained fifteen years of age shall have an
independent right of action and right to be heard in a matter concerning his or
her person, parallel to that of the person responsible for his or her care and
custody or his or her other legal representative.”
B. Provisions and practice regulating paternity
According to section 20 of the Act on Children
Born out of Wedlock (laki avioliiton
ulkopuolella syntyneistä lapsista, lagen om barn utom
äktenskap, Act no. 173/1922), a child born out of wedlock had a father if a
man acknowledged paternity, but paternity could not be established against a
man’s will. According to section 24 of the same Act, such defendant was deemed to
be the person liable to provide child support to the child if he had had sexual
intercourse with the child’s mother at the time when the child was possibly
conceived. However, such an action was to be dismissed if it was manifestly
improbable that the child was conceived as a result of that sexual intercourse.
As children born out of wedlock were put in a
substantially worse position than children born in wedlock, there was a need to guarantee equal treatment of all children before the law (see government
proposal HE 90/1974). This became the main aim of the new Paternity Act of 1975
(isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the Act
of 1922.
Section 3 of the Paternity Act provides that
paternity is established either by acknowledgement or by a court decision.
According to section 22, subsection 1, the child has a right to institute
proceedings with a view to having paternity established.
Section 4 of the Implementing Act of the Paternity
Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om
faderskap, Act no. 701/1975) provides that the provisions of the Paternity
Act shall also apply if the child was born before the entry into force of the
Act, unless otherwise provided. Section 5 provides that if a man, pursuant to the Act on Children Born out of Wedlock, enacted before the entry into force of the Paternity Act, has committed or been
obliged by a final judgment to pay child support to a child born out of wedlock
who has not the status of an acknowledged child, the provisions in sections 6
and 7 of this Act shall apply to the investigation of paternity, actions for the establishment of paternity and the exercise of the child’s right to be heard.
Sections 6 and 7 of the Implementing Act of the
Paternity Act provide as follows:
“The child welfare supervisor shall attend to the investigation
of paternity as provided in the Paternity Act, if a child born before the entry
into force of this Act has not reached fifteen years of age and the mother or
the legal guardian of the child has expressed a wish that the child welfare
supervisor attend to the investigation of paternity. After a man has
acknowledged paternity, the provisions in section 5, subsection 2; section 20, subsection 1; and section 21 of the Paternity Act shall apply to the obligation of the child
welfare supervisor to attend to the investigation of paternity, and to the enforcement of acknowledgement.”
“A child or his or her legal guardian shall have the right of
action for the establishment of paternity as provided in the Paternity Act. The
child welfare supervisor shall not be entitled to exercise the child’s right to
be heard without a separate authorisation. Proceedings for the establishment of
paternity must be initiated within five years from the entry into force of the
Paternity Act. However, no proceedings may be instituted if the man is
deceased.”
It appears from the drafting history of the
Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that considerations of legal certainty underlie the decision to restrict the right of
action. The entry into force of the Act opened up an opportunity to initiate
proceedings that did not exist at the time when the children in question were
conceived. The legislator considered that putative fathers’ legal security required
rapid elimination of uncertainty about possible claims being brought against
them on the basis of the Paternity Act. The restriction stating that a man’s
death prevented the initiation of proceedings was justified by the argument
that in such cases it was usually no longer possible to obtain sufficient
evidence of the man’s paternity.
The Supreme Court has held on several occasions
that the five-year time-limit in question is to be strictly applied. An
exception has been made in a case where the paternity of the mother’s husband
had to be annulled first and, as a result of that, the child would have become
fatherless if the time-limit had been strictly respected (see KKO 1993:58).
In its precedent case KKO 1982-II-165 the
Supreme Court considered that the five-year time-limit in section 7, subsection 2, of the Implementing Act of the Paternity Act was not such a time-limit that
could be restored by seeking extraordinary remedies (menetetyn määräajan
palauttaminen, återställandet av försutten fatalietid).
In its most recent precedent case KKO 2012:11
the Supreme Court found, in plenum composition, the following:
“27. As described above in points 11 and 12, according to the interpretation of the European Court of Human Rights an application of
restrictions of right to institute paternity proceedings may lead to a
violation of the right to respect for private life protected by Article 8 if
such restrictions in practice prevent the fact of clarifying a person’s
biological father and the confirmation of the paternity. This may have been the
case in situations in which a person has not had a real opportunity, due to reasons beyond his or her control, to clarify the identity of his or her biological
father and to have the paternity confirmed by a court within the time-limit.
28. According to the case-law of the European Court
of Human Rights the assessment whether reasons favouring the granting of the
right of appeal weigh heavier than the reasons speaking against it, must be made in casu and with an intent to reach a fair balance between the competing
interests. The case-law does not give a direct guidance on what issues the
assessment needs to be based from the point of view of the putative father’s
and his family’s interests and general legal certainty. The scope of the domestic
margin of appreciation, as it appears from the current case-law of the Court, remains in practice narrow. The Supreme Court considers that the in casu assessment
applied by the European Court of Human Rights means that the aims of legal
security and the protection of the prevailing circumstances, which normally relate to the restricting of the time allowed to institute an action, remain to a large extent unattained.
29. A paternity can currently be clarified with the
help of DNA tests with considerable certainty and without significance being
given to the passage of time in gathering evidence on the paternity. This
ground, which led to the imposition of the time-limit in section 7, subsection 2, of the Implementing Act [of the Paternity Act], has thus lost its significance. Knowing
one’s biological origin and its judicial confirmation and pronouncement are, according to the current knowledge, important parts of a person’s identity and therefore fall
to the core areas of protection of private life, guaranteed by Article 10 of
the Constitution and Article 8 of the Convention. The passage of time does not
mean either that a child’s need to know his or her both parents and to have the
paternity confirmed would disappear but it may even grow. Legal security and
the long prevailed legal state of affairs, which has not been the result of a
child’s conscious and free choice, are not as such sufficient grounds to
support that a child should not be able to institute paternity proceedings
after the time-limit has expired. In such situation the non-confirmation of the
paternity requires that in that particular case there are very strong factual counter
reasons relating to the putative father’s or to other persons’ rights.
30. On the above grounds the Supreme Court considers
that a principle emerges from the case-law of the European Court of Human
Rights that a child has, except in special circumstances, a right to know who
his or her biological father is and to have a case concerning confirmation of a
such legal status examined by a court, at least once. Such principle cannot currently
be regarded as unclear or subject to interpretation. At the same time these
rights concerning a person’s origin and identity clearly fall within the scope
of protection of private life guaranteed by Article 10 of the Constitution.
31. The Supreme Court considers that the application
of the time-limit in section 7, subsection 2, of the Implementing Act in cases
in which legal or factual reasons have prevented the institution of paternity
proceedings in due time, can therefore lead to an evident conflict with the
Constitution. In such situation a court must, in accordance with Article 106 of
the Constitution, give primacy to the constitutional provision.
32. In Finland a legal relationship to a father can
be confirmed only, according to the Paternity Act, by acknowledgement or by a
court decision. Any legal effects which are based on other legislation cannot
be restricted in the context of the confirmation of the paternity but they are
to be decided, if need be, separately. Nor is imposing restrictions justified
in the present case as the expressly mentioned main aim of the Paternity Act is
the realisation of the legal equality of children. One has to take into account
also the principles of Article 6 of the Constitution, according to which everyone
is equal before the law and no one shall, without an acceptable reason, be treated differently from other persons on grounds of origin or other reason that concerns
his or her person.”
In the case at hand the provision concerning the five-year
time-limit was therefore left inapplicable on the strength of Article 106 of
the Constitution and paternity was confirmed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that his right to
respect for family life had been violated. Article 8 of the Convention 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.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant maintained that, as the District Court had found it established that K.R. was the applicant’s father and had
confirmed his liability for maintenance in 1961, the applicant had validly
believed that paternity had been established. The applicant’s reasons for not
taking steps to initiate paternity proceedings within the statutory time-limit had
been connected to the legal decision to grant child support. K.R. had
acknowledged his paternity both to the applicant and his mother. As K.R. had
already died, the interests of his heirs could only be limited to the
inheritance, namely, to interests which could not be given primacy vis-à-vis
interests relating to personal identity.
The Government accepted that the impossibility
for the applicant to have his father’s paternity established after the expiry
of the five-year time-limit had constituted an interference with his private life
under Article 8 of the Convention. The impugned measures had had a basis in
Finnish legislation, namely in section 7, subsection 2, of the Implementing Act
of the Paternity Act.
As to whether the interference had been
“necessary in a democratic society”, the Government pointed out that the
applicant had been 17 years old when the Paternity Act entered into force in
1976 and that he had turned 18 on 21 January 1977. The Act was retroactive in
order to guarantee equality in law between children, irrespective of their
descent. The time-limit of five years only concerned cases where paternity was
to be established by a court decision while it was still possible for a father
to acknowledge such a child. The aim of the time-limit had been to ensure a
rapid examination of possible claims made against putative fathers in order to
protect their rights and freedoms, and to ensure legal certainty and finality
in family relations. The restriction concerning a man’s death was justified, as in such cases it was usually no longer possible to obtain sufficient evidence of paternity.
The child welfare supervisor could take steps in order to have paternity
established only if the child was under 15 years of age and the mother or the
legal guardian had expressed a wish that the child welfare supervisor attend to
the investigation of paternity.
The Government pointed out that the applicant
would have been able to initiate the proceedings as from 1 October 1976 as he was
already 15 years old at the time. The applicant had not given any reasons for
not having instituted paternity proceedings during the statutory time-limit but
twenty-two years later, in May 2003. Even though he had received child support
from his putative father, this did not mean that the latter’s paternity had
been established. The applicant had known, or at least had had grounds for
assuming, who his father was. The reform of family legislation, including the paternity laws, had been one of the main legal reforms in the 1970s and it had
been widely publicised. The applicant, being an adult for almost all of the five-year
period, must have been aware of the law reform and the new possibility to have
his alleged father’s paternity established by a court decision. The five-year
time limit was thus proportionate to the legitimate aim pursued, namely the general interest in protecting legal certainty of family relationships.
2. The Court’s assessment
a. Applicability of Article 8 of the Convention
The Court notes that it is not disputed between
the parties that Article 8 is applicable.
In this connection the Court notes that the applicant, born out of lawful wedlock, sought by means of judicial proceedings to determine his legal
relationship with the person he claimed was his father, through the
confirmation of the biological truth.
The Court has held on numerous occasions that
paternity proceedings fall within the scope of Article 8 (see Mikulić v. Croatia, no. 53176/99, § 51, ECHR 2002-I; and Jäggi v. Switzerland, no. 58757/00, § 25, ECHR 2006-X).
In the instant case the Court is not called upon to determine whether the
proceedings to establish parental ties between the applicant and his biological
father concern “family life” within the meaning of Article 8, since in any event the right to know one’s ascendants falls within the scope of the concept of
“private life”, which encompasses important aspects of one’s personal identity, such as the identity of one’s parents (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003-III, and Mikulić v.
Croatia, cited above, § 53). There appears, furthermore, to be no reason of principle why the notion of “private life” should be taken to exclude the
determination of a legal or biological relationship between a child born out of
wedlock and his natural father (see, mutatis
mutandis, Mikulić, ibid.; and Jäggi v. Switzerland, cited above, § 25).
Accordingly, the facts of the case fall within
the ambit of Article 8 of the Convention.
b. Whether the case involves a positive obligation or
an interference
The Court reiterates that the essential object
of Article 8 is to protect the individual against arbitrary action by public
authorities. There may in addition be positive obligations inherent in ensuring
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 Kroon and
Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297-C;
and Mikulić v. Croatia, cited above, § 57). However, the boundaries between the State’s positive and negative obligations under
this provision do not lend themselves 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 competing interests of the
individual and of the community as a whole; and in both contexts the State
enjoys a certain margin of appreciation (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290; and Kroon
and Others v. the Netherlands, cited above).
The Court reiterates that its task is not to
substitute itself for the competent domestic authorities in regulating
paternity disputes at the national level, but rather to review under the
Convention the decisions that those authorities have taken in the exercise of
their power of appreciation (see, inter alia, Różański v. Poland, no. 55339/00, § 62, 18 May 2006; Mikulić v. Croatia, cited above, § 59; and Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A).
The Court will therefore examine whether the respondent State, in handling the applicant’s action for judicial recognition of paternity, has complied with
its positive obligations under Article 8 of the Convention.
c. Whether the impossibility to bring an action was
“in accordance with the law” and pursued a legitimate aim
At the outset, the Court observes that the
applicant did not dispute that the impossibility of bringing an action for
judicial recognition of paternity was “in accordance with the law”. Indeed, he complained that the time-limit imposed by the Implementing Act of the Paternity Act
prevented him from having the possibility of obtaining judicial recognition of
paternity before the domestic courts, in violation of Article 8 of the
Convention.
In this connection it can be observed that the
Paternity Act introduced the right of a child or his or her legal guardian to
institute proceedings for judicial recognition of paternity in the domestic legal
system in 1976. According to the Implementing Act of the Paternity Act and
concerning children born before the entry into force of the Paternity Act, this right was subject to a five-year time-limit which started to run from the entry into force
of the Act in 1976. Thus, in the instant case the applicant had until 1 October
1981 to institute paternity proceedings. The applicant, however, instituted such proceedings only in May 2003 as he claimed that he had not known that
paternity had not been legally established until August 1999 when K.R. had died.
His application was then found to be time-barred.
The impossibility of bringing an action for
judicial recognition of paternity pursued a legitimate aim. The time-limit
imposed by the Implementing Act of the Paternity Act for actions concerning
recognition of paternity was intended to protect the interests of putative
fathers from old claims and prevent possible injustice if courts were required
to make findings of fact that went back many years (see, inter alia, Mizzi v. Malta, no. 26111/02, § 83, ECHR 2006-I (extracts); Shofman v. Russia, no. 74826/01, § 39, 24 November 2005; and, mutatis
mutandis, Stubbings and Others v. the United Kingdom, 22 October 1996 , § 51, Reports of Judgments and Decisions 1996-IV).
d. Whether a fair balance was struck
Accordingly, the Court finds that there has been
a violation of Article 8.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
The applicant also complained that the five-year
time-limit set in national legislation amounted to discrimination against him
in comparison with children born after the entry into force of the Paternity
Act. He referred to Article 14 of the Convention which reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government contested that argument.
The Court points out that it has previously
accepted that the introduction of a time-limit for the institution of paternity
proceedings was justified by the desire to ensure legal certainty and finality
in family relations (see, for example, Mizzi v. Malta, cited above, § 88; and Rasmussen v. Denmark, 28 November 1984, § 41, Series A no. 87). Accordingly, the existence of a limitation period per se is not incompatible with the
Convention. What the Court needs to ascertain in a given case is whether the
nature of the time-limit in question and/or the manner in which it is applied
is compatible with the Convention.
When deciding whether or not there has been
compliance with Article 8 of the Convention, the Court must determine whether, on the facts of the case, a fair balance was struck by the State between the competing rights
and interests at stake. Apart from weighing the interests of the individual vis-à-vis the general interest of the
community as a whole, a balancing exercise is also required with regard to
competing private interests. In this connection, it should be observed that the
expression “everyone” in Article 8 of the Convention applies to both the child
and the putative father. On the one hand, people have a right to know their
origins, that right being derived from a wide interpretation of the scope of
the notion of private life (see Odièvre v.
France [GC], cited above, § 42). A person has a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about
an important aspect of his or her personal identity and eliminate any
uncertainty in this respect (see Mikulić v. Croatia, cited above, §§ 64 and 65). On the other hand, a putative father’s interest in being protected from claims
concerning facts that go back many years cannot be denied. Finally, in addition to that conflict of interest, other interests may come into play, such as those of third parties, essentially the putative father’s family, and the general
interest of legal certainty.
While performing the “balancing of interests
test” in the examination of cases concerning limitations on the institution of
paternity claims, the Court has taken a number of factors into consideration.
For instance, the particular point in time when an applicant becomes aware of
the biological reality is pertinent. The Court will therefore examine whether
the circumstances substantiating a particular paternity claim are met before or
after the expiry of the applicable time-limit (see, for instance, the cases of Shofman v. Russia, cited above, §§ 40 and 43; and Mizzi v. Malta, cited above, §§ 109-111, concerning disavowal of paternity claims). Furthermore, the Court will examine whether or not an alternative means of redress exists in the event the
proceedings in question are time-barred. This would include, for example, the availability of effective domestic remedies to obtain the re-opening of the
time-limit (see, for example, Mizzi v. Malta, cited above, § 111) or exceptions to the application of a time-limit in situations
where a person becomes aware of the biological reality after the time-limit has
expired (see Shofman v. Russia, cited above, § 43).
The yardstick against which the above factors
are measured is whether a legal presumption has been allowed to prevail over
biological and social reality and if so whether, in the circumstances, this is compatible, having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life, taking into account the established facts and the wishes of those concerned (see Kroon and Others v. the
Netherlands, cited above, § 40). For example, the Court has found that
rigid limitation periods or other obstacles to actions contesting paternity
that apply irrespective of a putative father’s awareness of the circumstances
casting doubt on his paternity, without allowing for any exceptions, violated Article 8 of the Convention (see, Shofman v. Russia, cited above, §§ 43-45; see also, mutatis mutandis, Mizzi
v. Malta, cited above, §§ 80 and 111-113; Paulík v. Slovakia, no. 10699/05, §§ 45-47, ECHR 2006-XI (extracts); and Tavlı
v. Turkey, no. 11449/02, §§ 34-38, 9 November 2006).
In connection with the above, the Court further reiterates that the choice of the means calculated to secure compliance with
Article 8 in the sphere of the relations of individuals between themselves is
in principle a matter that falls within the Contracting States’ margin of
appreciation. In this connection, there are different ways of ensuring “respect
for private life”, and the nature of the State’s obligation will depend on the
particular aspect of private life that is at issue (see Odièvre v. France [GC], cited
above, § 46; and X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91).
Turning to the present case, the Court notes that the applicant was 17 years old when the Paternity Act came into
force and 22 years old when the time-limit expired. The identity of the
applicant’s biological father, K.R., was known to the applicant: K.R. had
already in 1961 been ordered by the District Court to pay child support to the
applicant and he had also told the applicant and his mother that he was the
applicant’s father. However, the applicant found out only in 1999, after K.R.’s death, that the latter had not been legally registered as his father. On 15 May
2003, at the age of 44, the applicant initiated paternity proceedings against
the heirs of K.R. in the District Court.
The Court notes that, when the paternity
proceedings were initiated in 2003, the five-year time-limit provided by the national
legislation was strictly applied. The national legislation did not provide any
alternative means of redress as the time-limit could not as such be restored by
seeking extraordinary remedies. Nor had the Supreme Court, at the time, agreed to any exceptions to the application of the time-limit in question, except in one exceptional case.
The Court notes that it has already had occasion
to observe that a significant number of States do not set a limitation period
for children to bring an action aimed at having paternity established and that
there is a tendency towards a greater protection of the right of the child to
have his paternal affiliation established (see Phinikaridou v. Cyprus, no. 23890/02, ECHR 2007-XIV (extracts)). The Court has also on several occasions
found that it has difficulties in accepting inflexible
limitation periods which do not provide any exceptions to the application of
that period (see, mutatis mutandis, Shofman v.
Russia, cited
above, § 43; Grönmark v. Finland, no. 17038/04, § 55, 6 July 2010; and Backlund v. Finland, no. 36498/05, § 53, 6 July 2010). The main problem therefore is the absolute nature of the
time-limit rather than its dies a quo as such. In view of the fact that in the present case the
biological father had already died, judicial proceedings before the national
courts were the only avenue by which the applicant could have legally
established the legal status of his biological father. As a result of this
rigid time-limit, as upheld by the Supreme Court, the applicant was deprived of
the possibility of obtaining a judicial determination that K.R. was his father.
He was deprived of this right even though he was in a situation where he had
not had any realistic opportunity to go to court during the limitation period
due to his incorrect perception that paternity had already been established
when K.R. had been ordered by the District Court to pay child support to
him (see, mutatis
mutandis, Phinikaridou
v. Cyprus, cited
above, § 62; and Turnalı v. Turkey, no. 4914/03, § 44, 7 April 2009).
The Court notes that, at the time of the
domestic proceedings, in the Supreme Court’s practice the general interest as
well as the competing rights and interests both of a putative father and his
family were accorded greater weight than a child’s right to have his origins
legally confirmed. In the present case, the national courts did not have any
possibility to balance the competing interests but only concluded that the
applicant’s claim was time-barred. Thus, the national courts could not consider
at all whether or not the general interest in protecting legal certainty of
family relationships or the interest of the father and his family outweighed
the applicant’s right to have an opportunity to seek a judicial determination
of paternity. The Court considers that such a straightforward restriction of
the applicant’s right to institute proceedings for the judicial determination
of paternity was not proportionate to the legitimate aim pursued. In this
connection the Court reiterates that the Convention is intended to guarantee
not rights that are theoretical or illusory but rights that are practical and effective (see Airey
v. Ireland, 9 October 1979, § 24, Series A no. 32).
The Court notes, however, that the Supreme Court
has recently changed its previous line of case-law and considered that the
application of the five-year time-limit could lead to an apparent contradiction
with the Constitution in cases in which legal or factual reasons have prevented
the institution of paternity proceedings within the time-limit. Therefore, in that case, the time-limit was left inapplicable on the strength of Article 106 of the
Constitution (see KKO 2012:11).
Hence, even having regard to the margin of
appreciation left to the State, the Court considers that, at the time of the
facts of the present case, the application of a rigid time-limit for the
exercise of paternity proceedings and, in particular, the lack of any
possibility to balance the competing interests by the national courts, impaired the very essence of the right to respect for one’s private life under Article 8 of
the Convention. In view of the above, the Court finds that a fair balance was
not struck in the present case between the different interests involved and, therefore, that there has been a failure to secure the applicant’s right to respect for his
private life.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Court observes that at the heart of this
part of the application is the impossibility for the applicant to have his
biological father’s paternity legally confirmed. The Court has examined this
issue above under Article 8 of the Convention and has found a violation of this
Article. In view of those findings it finds it unnecessary to examine the facts
of the case separately under Article 14 taken in conjunction with Article 8 of
the Convention.
III. REMAINDER OF THE APPLICATION
The applicant also complained under Article 6 of
the Convention that he could not have the paternity issue examined by the
domestic courts.
Having regard to the case file, the Court finds that the matter complained of does not disclose any appearance of a violation
of the applicant’s rights under the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to
Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If 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.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the applicant’s claim
too high as to quantum. Were the Court to find a violation of Articles 8
and/or 14 of the Convention, the compensation for non-pecuniary damage should
not exceed the amount of EUR 1,000 in total.
The Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,680.96 for the costs and expenses incurred before the domestic courts and EUR 2,196 for those incurred before the Court.
The Government considered, as concerned the
costs and expenses incurred before the domestic courts, that the hourly rate
used was somewhat high. As to the costs and expenses incurred before the Court, the Government considered the applicant’s claim for costs and expenses reasonable. In any
event, the total amount of compensation for costs and expenses should not
exceed EUR 4,500 (inclusive of value-added tax).
According to the Court’s 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 were
reasonable as to quantum. In the present case, regard being had to the information
in its possession and the above criteria, the Court considers it reasonable to
award the sum of EUR 5,000 (inclusive of value-added tax) covering costs under
all heads.
C. Default interest
The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaints under
Articles 8 and 14 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds by five votes to two that there has
been a violation of Article 8 of the Convention;
3. Holds unanimously that it is not necessary
to examine separately the complaint under Article 14 of the Convention taken in
conjunction with Article 8;
4. Holds by five votes to two
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to him, in respect of costs and expenses;
(b) that 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;
5. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Ineta Ziemele
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed
to this judgment:
(a) partly dissenting opinion of Judge De Gaetano;
(b) partly dissenting opinion of Judge Wojtyczek.
I.Z.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE DE GAETANO
1. I regret that I cannot agree with the majority
that in this case there was a violation of Article 8. In my view the facts
disclose at best only ignorance of the law on the part of the applicant, and at worst carelessness on his part which, given the publicity leading up to and subsequent
to the enactment of the Paternity Act, can only be described as carelessness of
a very high degree.
2. This was not the typical case where up to the
time of the expiry of the period within which the action for filiation could be
brought, the applicant was unaware of who was his or her biological father; or
merely suspected that a particular person was or could be his or her biological
father; or was otherwise impeded from bringing the action by an “unavoidable”
obstacle, physical or otherwise. In the instant case the applicant positively knew
that K.R. was his father, and this well before the law came into force. The
only argument brought by the applicant is that he was not aware that, in spite of K.R. paying child support as ordered by a court, the said K.R. had not been
legally registered as his father. In other words he was under the mistaken
belief that as the domestic court had confirmed K.R.’s liability for the payment
of child support, paternity had been legally established. This, to my mind, is a mistake of law, that is a mistake as to the legal consequences of the court’s
decision on child support. This mistake was in any case easily avoidable if
only the applicant had bothered to consult a lawyer. As the Helsinki Court of
Appeal held (§ 12) no legal impediment had prevented the applicant from
initiating proceedings within the five-year time-limit. In other words the applicant
had only himself to blame - imputet sibi - for the situation in which he
found himself after the expiry of the five-year transitional period.
3. As this Court has had occasion to state, “...the existence of a limitation period per se is not incompatible with the
Convention. What the Court needs to ascertain in a given case is whether the
nature of the time-limit in question and/or the manner in which it is applied
is compatible with the Convention” (Phinikaridou v. Cyprus, no. 23890/02, § 52, 20 December 2007). The instant case is certainly not one where a legal
presumption has been allowed to prevail in unreasonable circumstances over
biological and social reality - the period of limitation was reasonable in
length and pursued a legitimate aim, and the applicant was aware of the
biological and social reality. Time-limits, which in themselves are designed to
secure the proper administration of justice in compliance with the principle of
legal certainty (Mizzi v. Malta, no. 26111/02, § 83, ECHR 2006-I (extracts)), cannot be circumvented by the spurious argument that one was
not aware of what the law said or provided, or was not aware of the legal
effects or consequences of certain decisions (like the “incorrect perception” -
see § 52 - as to the court order to pay child support). Even in Backlund v.
Finland (no. 36498/05, 6 July 2010) the Court was quick to
dismiss “the applicant’s alleged ignorance of the statutory time-limit” (see
§ 53 of that judgment), although it then went on (wrongly, in my view) to find a violation of Article 8.
4. In the instant case, while I am prepared to subscribe
to the judgment (on the Article 8 issue) as far as § 49, I am unable to agree
with the reasoning and conclusion in §§ 50 to 56. In particular neither the
fact that many States do not set a time-limit for an action for filiation (§
52), nor the fact that the Finnish courts did not have the possibility to
“balance the competing interests” (§§ 53 and 55), are relevant to the issue at
hand. Had the Finnish courts carried out this balancing exercise, they should nonetheless have dismissed the applicant’s request because a “fair balance was
struck” in this case - the applicant had only himself to blame for ignoring the
law.
5. This judgment could be read as not only
condoning ignorance of the law and carelessness, but also rewarding it with EUR
6,000.
PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK
1. I respectfully disagree with the majority view
that there has been a violation of Article 8 of the Convention in the
present case. At the same time, I fully share the concerns expressed by Judge De
Gaetano and support the principal arguments developed in his partly dissenting
opinion.
2. In the present case, the applicant knew the
identity of his biological father. The Helsinki Court of Appeal has established
that no legal impediment prevented the applicant from initiating proceedings
within the statutory time-limit imposed by Finnish legislation. This time-limit, as applied in the circumstances of the present case, did not deprive the applicant of the
possibility of fully exercising his rights protected under the Convention. In
this context, I agree with Judge De Gaetano’s view that the applicant has only himself
to blame for the situation in which he found himself after the expiry of the
five-year transitional period to bring an action for filiation. However, I am not certain whether we can qualify the situation of the applicant as a mistake of law (a
mistake as to the content of legislation) or rather as a mistake as to the
content of the official registers. This doubt is, nonetheless, irrelevant for the solution of the case.
3. The European legal culture widely recognises the
principle vigilantibus leges sunt scriptae. Any legal system is based on
the assumption that its addressees should show due diligence as to the official
registration or recognition of the existing social and legal realities. This
pertains also to family law. The requirement of due diligence is the necessary
correlate of the legal recognition of individual freedom and personal autonomy.
In other words, freedom and diligence are two sides of the same coin.
Legal certainty in family relationships is a prerequisite for
the protection of the right to respect for private and family life enshrined in
Article 8 of the Convention. The assumption that every adult is responsible for
ensuring that the official registers reflect his family status may not be seen, in principle, as an interference with the rights protected by Article 8 of the Convention.
4. I have doubts about the method of interpretation
of the Convention underlying the present judgment. I am neither convinced by
the argument referring to the content of legislation in the majority of the
High Contracting Parties nor by the reference to an existing tendency among the
High Contracting Parties (paragraph 52). Firstly, these arguments indirectly
confirm that there is no unanimity among the High Contracting Parties on the
issue. Secondly, it has not been ascertained that the tendencies referred to
really constitute a practice in the application of the Convention which would
be relevant for the purposes of its interpretation under the applicable principles
of international law pertaining to treaty interpretation.
