Resolution CM/ResDH(2011)150[1]
Execution of the judgment of the European Court of Human Rights
Shofman against Russian Federation
(Application No. 74826/01, judgment of 24 November 2005, final on 24 February 2006)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns a failure to respect the applicant’s right to private life due to the rejection of his claim challenging the legal presumption of his paternity as time-barred (violation of Article 8) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Russian Federation’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2011)150
Information about the measures to comply with the judgment in the case of
Shofman against Russian Federation
Introductory case summary
The case concerns the dismissal by domestic courts of the applicant’s claim introduced in 1997 challenging the legal presumption of his paternity in respect of his wife’s son born in 1995. Despite DNA tests establishing that the applicant was not the child’s father, the courts were unable to accept his request because it was time-barred under the terms of the Code of Marriage and Family of 1969, which was in force at the time of the child’s birth, despite the fact that the applicant had learned that he could not have been the child’s father only after the time-limit had expired. Under the Code a father could not challenge his paternity more than one year after he had been informed that the child had been registered as his. However, the applicant learned that he might not be the child’s father more than a year after the registration of the child as his.
The European Court noted that the government had given no reasons as to why it should have been “necessary in a democratic society” to establish a time-limit which was impossible to extend.
The European Court consequently found that the respondent state had failed to strike a fair balance between the general interest of the protection of legal certainty of family relationships and the applicant’s right to respect for his private life (violation of Article 8).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
6 000 EUR
3 299 EUR
9 299 EUR
Paid on 19/05/2006
b) Individual measures
The European Court granted the applicant just satisfaction in respect of non-pecuniary damage sustained.
On 7 February 2007 the Zheleznodorozhniy District Court of Novosibirsk cancelled its previous decision of 16 November 2000 in the applicant’s case on the ground of newly discovered circumstances. The applicant’s claim challenging his paternity in respect of his former wife’s child was granted by the same court on 21 March 2007 and the birth register was modified accordingly.
In May and June 2007 a justice of peace, at the applicant’s request, applied other consequences resulting from the outcome of the proceedings on challenging the applicant’s paternity.
Consequently, no further individual measure appears to be necessary.
General measures
The European Court noted in its judgment that the new Family Code in force since 1 March 1996 sets no time-limit for disclaiming paternity. However, the violation in this case was because the new Code did not contain transitional provisions, this issue being clarified on 25 October 1996 by the Plenary Supreme Court of the Russian Federation in its Resolution No. 9. The Resolution provided that the Code of 1969 should continue to be applied in respect of children born before the entry into force of the new Code (see §§ 19-21 of the judgment).
By a letter of the Supreme Court of the Russian Federation, the judgment of the European Court was disseminated amongst the Regional Courts of general jurisdiction. Accordingly, the Russian authorities consider that dissemination of the judgment by the Supreme Court to all lower courts constitutes sufficient indication that Resolution No. 9 should be systematically ruled out and that the domestic law is applied in conformity with the requirements of the Convention.
The judgment of the European Court was also published in the Bulletin of the European Court (Russian version).
Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Russian Federation has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies
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