CASE OF FELLAS v. GREECE

FIRST SECTION

CASE OF FELLAS v. GREECE

(Application no. 46400/09)

JUDGMENT

STRASBOURG

18 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Fellas v. Greece,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Anatoly Kovler, President,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 27 September 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46400/09) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British and Cypriot national, Mr Christakis Fellas (“the applicant”), on 27 July 2009.

2. The applicant was represented by Ms A. Kaftani, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr D. Kalogiros, Legal Assistant at the State Legal Council.

3. On 3 June 2010 the President of the First Section decided to give notice of the application to the Government.

4. The Government of Cyprus and of the United Kingdom were given notice of the application. They both informed the Court that they did not wish to exercise their right to intervene in the proceedings.

5. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1948 and lives in London.

7. In June 1986 he started an intimate relationship with S.D. who was at the time married to another man but separated from him. S.D. gave birth to two children on 26 August 1987 and 25 November 1995 respectively. The applicant voluntarily recognised the second child in France where it was born.

8. S.D. got divorced in 1998. The applicant’s relationship with her also ended in March of the same year. The applicant maintained regular communication with the two children until 2000, when the contact with them became irregular due to the opposition on the part of S.D.

A. Interim applications

9. On 11 October 2000 the applicant lodged an interim application asking for visiting rights as regards the two children before the Family Court of First Instance of Athens. His request was accepted on 15 February 2001 (judgment no. 1586/2001).

10. On 11 October 2001 S.D. lodged an interim application with the Family Court of First Instance of Athens asking to have the applicant’s visiting rights withdrawn. This request was rejected on 29 April 2002 (judgment no. 3369/2002).

11. On 11 June 2002 S.D. lodged another interim application with the Family Court of First Instance of Athens asking to have the applicant’s visiting rights withdrawn. On 12 August 2002 her application was accepted (judgment no. 6306/2002). The court decided that the applicant was not the lawful father of the children, as S.D. was still married to another man when the children were born, and therefore, according to Article 1465 of the Civil Code, it was presumed that her husband was the father of the children. Further, it was observed that the applicant had never challenged the paternity of the children before the domestic courts in the form of an action challenging paternity pursuant to Article 1469 § 5 of the Civil Code.

B. Ordinary application

12. In the meantime, on 9 March 2001 the applicant had lodged an application for the regulation of visiting rights with the children before the Athens Family Court of First Instance. His application was rejected on 11 November 2002. The court noted that S.D. was still married to another man when the children were born and therefore, according to Article 1465 of the Civil Code, it was presumed that their father was their mother’s husband (judgment no. 1605/2002).

13. On 15 December 2002 the applicant filed an appeal with the Athens Family Court of Appeal challenging the First Instance Court’s decision. In the meantime the eldest child became an adult and the subject matter regarding this child ceased to exist. Thus, the proceedings continued only with regard to the second child. By judgment dated 12 April 2006, the court rejected the applicant’s appeal and upheld the findings of the First Instance Court (judgment no. 2601/2006).

14. On 21 September 2006 the applicant lodged an appeal on points of law with the Court of Cassation. On 19 March 2009, after the case had been referred to the plenary session of the court, the appeal was finally rejected (judgment no. 9/2009). The date on which judgment no. 9/2009 was “finalised” (θεώρηση και καθαρoγραφή) does not transpire from the case file.

II. RELEVANT DOMESTIC LAW

15. Article 1465 of the Civil Code provides as follows:

“A child born during the marriage of his mother or within three hundred days from the dissolution or annulment of such marriage is presumed to have as its father the mother’s husband (child born in marriage)”.

16. Article 1469 of the Civil Code provides as follows:

“The qualification of a child born in wedlock may be challenged by: 1) the husband of the mother, 2) the father or the mother of the husband if the latter has died without having lost the right to challenge, 3) the child, 4) the mother of the child, 5) the man with whom the mother, while separated from her husband, had a permanent relationship with bodily intercourse during the critical period of conception. The challenge must be made by the entitled person to do so personally or by his specially authorised attorney or, with the Court’s permission, by his lawful representative”.

According to Article 1470 of the Civil Code, the person who had sexual intercourse with the mother may challenge the qualification of a child born in wedlock within a period of two years after the child’s birth.

17. Article 1520 of the Civil Code provides as follows:

Personal communication

“The parent with whom the child does not reside conserves the right of personal communication with it. The parents have not the right to prevent the communication of the child with its distant ascendants except on serious grounds. In the cases contemplated in the preceding paragraphs particulars pertaining to the method of communication shall be specifically regulated by the Court”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

18. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

19. The Government contested that argument.

A. Admissibility

20. The case concerns the length of two sets of administrative proceedings.

21. The Court observes that the first set of proceedings commenced on 11 October 2000 when the applicant lodged an interim application with the Athens Family Court of First Instance and ended on 12 August 2002 when his allegations were finally rejected by the same court (judgment no. 6306/2002). Thus, the impugned decision was published more than six months before the introduction of the application with the Court on 27 July 2009. It follows therefore that this complaint should be rejected as inadmissible, as it fails to comply with the six-month time-limit imposed by Article 35 § 1 of the Convention.

22. In so far as the second set of proceedings is concerned, the period to be taken into consideration commenced on 9 March 2001 when the applicant lodged an ordinary application with the Athens Family Court of First Instance and ended on 19 March 2009 when his application was finally rejected by the Court of Cassation (judgment no. 9/2009). It therefore lasted more than eight years for three levels of jurisdiction.

23. With respect to the second set of proceedings, 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

24. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

25. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

26. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the second set of proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

27. The applicant also complained under Article 6 of the Convention about the fairness of the proceedings before the domestic courts. In this respect, he complained about the wrong implementation of the substantive law, the wrong assessment of the evidence and the outcome of the proceedings. He further claimed that the domestic courts’ decisions were not well reasoned.

28. The Court recalls that, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. In particular, it is not the Court’s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many others, García Ruiz v. Spain [GC], no. 30544/96, §§ 28‑29, ECHR 1999‑I). The Court also recalls that it is not its task to act by calling into question the outcome of the domestic proceedings. The domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see Pekinel v. Turkey, no. 9939/02, § 53, 18 March 2008).

29. In the present case, the Court finds that the applicant’s complaints as to the fairness of the proceedings are unfounded. There is nothing in the case-file to indicate that the assessment of the evidence was arbitrary or the proceedings were otherwise unfair to raise an issue under Article 6. The domestic courts heard the applicant, took into account his submissions and examined all his arguments. It appears from the case file that the judicial decisions rejecting the applicant’s claims were all well reasoned.

30. In view of the abovementioned, the applicant’s complaints are therefore manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

31. Further, the applicant complained that his right to family life under Article 8 was violated, as no visiting rights were awarded to him, despite the fact that it was never challenged that he was the natural father of the children.

32. The Court notes that, as it was clearly explained by the domestic courts, the mother of the children was still married to another man when the children were born. Therefore, according to Article 1465 of the Civil Code, it was presumed that her husband was their father. Further, it was observed that pursuant to Article 1469 § 5 of the Civil Code the applicant had the possibility to challenge the presumption of paternity established by Article 1465 of the Civil Code. Nonetheless, the applicant had never brought such an action before the domestic courts, which was a prerequisite in order to be legally considered as the father of the children and hence be granted visiting rights to them. The Court observes that the domestic courts’ decisions to reject the applicant’s request for visiting rights were taken according to domestic law and relied on reasonable grounds which could not infringe the applicant’s private or family life, namely that communication rights are only guaranteed for parents recognized according to the procedures provided by domestic law. The obligation to institute proceedings under Articles 1469 and 1470 of the Civil Code cannot be considered as imposing an excessive burden on the applicant with regard to the enjoyment of his rights enshrined in Article 8 of the Convention.

33. In view of the above the Court concludes that the applicant’s complaint under Article 8 is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

34. Lastly, the applicant raised several complaints under Article 7 of the European Convention on the Exercise of Children’s Rights and Articles 3 and 4 of the European Convention on the Legal Status of Children Born out of Wedlock.

35. In so far as these complaints are concerned, the Court reiterates that it has no jurisdiction to ensure compliance with instruments other than the European Convention on Human Rights and its Protocols.

36. Therefore, these complaints must be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention, in application of Article 35 §§ 3 (a) and 4.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. 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

38. The applicant claimed 268,000 euros (EUR) in respect of non-pecuniary damage: (a) EUR 168,000 for suffering and distress due to violation of his right to family life under Article 8 of the Convention, (b) EUR 50,000 for suffering and distress for the unjustified duration of the proceedings and (c) EUR 50,000 for suffering, distress and psychological damage in respect of the violation of the right to fair trial.

39. As regards the applicant’s claim concerning the length of the proceedings, the Government considered the amount claimed exorbitant and submitteds that a finding of a violation would constitute sufficient just satisfaction. No submissions were made in respect of the other claims.

40. The Court notes that the applicant’s complaints under Article 8, with regard to his right to family life, and under Article 6 of the Convention, concerning the alleged violation of his right to fair trial, were rejected. Thus, no amount can be awarded to the applicant in respect of non-pecuniary damage on that account. Nevertheless, the Court considers that the applicant must have sustained non-pecuniary damage for the excessive length of proceedings. Ruling on an equitable basis, it awards him EUR 4,000 under that head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

41. The applicant also claimed EUR 13,528.44 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. He produced three separate invoices (for the sum of EUR 1,972) in respect of the costs incurred before the domestic courts. No invoice was submitted in support of his claim regarding the costs incurred before the Court.

42. The Government contested these claims. In so far as the costs and expenses incurred before the domestic courts were concerned, they observed that these were not causally linked with the protracted length of the proceedings and that this claim should be dismissed. With regard to the costs and expenses allegedly incurred before the Court, the Government submitted that the applicant’s claim was not supported by any proof.

43. 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 (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000‑XI).

44. Regarding the costs incurred before the domestic courts, the Court has already ruled that the length of a procedure could result in increased costs for the applicant before the domestic courts and should therefore be taken into account (see Capuano v. Italy, 25 June 1987, § 37, Series A no. 119). The Court notes, however, that the costs claimed in this case were not caused by the length of proceedings but were costs normally incurred in the context of the proceedings. Thus, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

45. In respect of the costs incurred before the Court, in view of the absence of any supporting documents, the Court finds that the applicant’s claim under this head has not been substantiated. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to reject the applicant’s claim under this head.

C. Default interest

46. 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 UNANIMOUSLY

1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months EUR 4,000 (four thousand euros), in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachAnatoly Kovler
Deputy RegistrarPresident

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