FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 54324/00
by Ján FAŠANG
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 28 January 2003 as a Chamber composed of
SirNicolas Bratza, President,
MrsE. Palm,
MrsV. Strážnická,
MrM. Fischbach,
MrJ. Casadevall,
MrR. Maruste,
MrL. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 8 February 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ján Fašang, is a Slovakian national, who was born in 1954 and lives in Hrušov.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 February 1992 the applicant married. On 21 May 1993 his wife gave birth to a boy. In accordance with Section 51(1) of the Family Act, the applicant was presumed to be the child’s father.
In February 1996 the applicant’s wife moved to a different place together with the child.
On 3 May 1996 the Banská Bystrica District Court granted the request of the applicant’s wife that she be granted the custody of the child. It further ordered the applicant to contribute to the child’s maintenance. On 1 August 1996 the Banská Bystrica Regional Court upheld the District Court’s judgment.
Subsequently the applicant claimed that the marriage be dissolved. In his action he alleged, inter alia, that he had had sexual intercourse with his wife in January 1992 for the last time, and that they had not lived in a common household since February 1996. The applicant further requested that the child be placed in his custody.
On 11 July 1997 the Veľký Krtíš District Court granted the divorce of the applicant and of his wife. The child was placed in the custody of the mother and the applicant was ordered to pay maintenance.
The applicant appealed against the decision on the child’s maintenance and claimed that he had not fathered the child.
On 30 September 1997 the Banská Bystrica Regional Court upheld the relevant part of the District Court’s judgment. The appellate court’s decision stated that the applicant was presumed to be the child’s father in accordance with Section 51(1) of the Family Act.
On 19 November 1997 the applicant requested that the General Prosecutor bring proceedings on his behalf with a view to determining whether or not he had fathered the child born to his former wife. He explained that he did not consider himself to be the natural father of the child and that the issue could reliably be determined only by means of a blood test. The applicant further stated that he was ready to bear the costs of such a test.
On 5 February 1998 the Banská Bystrica Regional Prosecutor’s Office informed the applicant that it had been open to him to deny the paternity in respect of the child within six months after the child’s birth in accordance with Section 57(1) of the Family Act. The letter further stated that it had not been reliably shown that the applicant had not fathered the child. Furthermore, a blood test could not be carried out because of disagreement of the applicant’s former wife. In those circumstances, the requirements laid down in Section 62 of the Family Act for a paternity action to be filed on the applicant’s behalf were not met.
On 24 June 1999 the applicant claimed before the Banská Bystrica District Court that he had not fathered the child. He requested that a blood test be ordered with a view to determining this issue. The applicant explained that his last sexual intercourse with the child’s mother had taken place in January 1992, whereas the child had been born in May 1993.
On 15 February 2001 the District Court dismissed the applicant’s claim as having been lodged out of time. The judgment stated that the applicant had failed to file the action within six months after the child’s birth as requested by Section 57(1) of the Family Act. In the judgment the District Court pointed out that the applicant’s arguments did not appear reliable as he had started contesting his paternity in respect of the child only after his former wife had left him in 1996. The District Court further noted that public prosecutors had established no grounds for bringing paternity proceedings on the applicant’s behalf pursuant to Section 62(1) of the Family Act.
The applicant appealed and alleged that his rights under Articles 6 § 1 and 8 of the Convention had been violated as a result of the dismissal of his action and the refusal to carry out a blood test.
On 10 July 2001 the Banská Bystrica Regional Court upheld the District Court’s judgment of 15 February 2001. The judgment stated that the six months’ time-limit laid down in Section 57(1) of the Family Act was preclusive. As a result of the applicant’s failure to comply with it, his right to directly challenge the paternity of the child before a court had lapsed.
On 1 March 2002 the General Prosecutor’s Office informed the applicant that no reasons had been found for filing an extra-ordinary appeal on points of law against the Regional Court’s judgment of 10 July 2001.
B. Relevant domestic law and practice
Pursuant to Section 51(1) of the Family Act (Zákon o rodine), the husband of a woman who gives birth to a child during the marriage or not later than three hundred days after its dissolution shall be considered the child’s father.
Section 57(1) provides that a husband can deny paternity before a court within six months after he has learnt that his wife has given birth to a child.
Under Section 62(1), when the time-limit for denying the paternity by the parent concerned has expired, the General Prosecutor may file an action for disproof of paternity provided that the determination of the issue is justified by the interests of society.
According to the practice of the public prosecutors, an action under Section 62(1) of the Family Act can only be filed when there is reliable evidence that the mother’s husband did not father the child.
COMPLAINTS
The applicant complains that he has not been allowed to have a blood test carried out with a view to disproving his paternity and that his right of access to a court was not respected in this context. He alleges a violation of Articles 6 § 1 and 8 of the Convention.
The applicant also alleges a violation of Article 13 of the Convention in that he had no effective remedy at his disposal in this respect.
THE LAW
1. The applicant complains that his right of access to a court was violated in that he could not have his paternity claim examined by a court. He alleges a violation of Article 6 § 1 of the Convention the relevant part of which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court notes that Section 57(1) of the Family Act gave the applicant the possibility of denying paternity in respect of the boy to whom his wife had given birth before a court within six months after the boy’s birth on 21 May 1993. However, the applicant had filed such an action only on 24 June 1999 when that right had lapsed. The documents submitted indicate that the applicant was aware of the facts on the basis of which he considers that he is not the natural father of the child before the expiry of the six months’ period laid down in Section 57(1) of the Family Act. In these circumstances, the Court considers that the subsequent dismissal of both the applicant’s request that proceedings be brought on his behalf with a view to determining whether or not he had fathered the child and of his action filed on 24 June 1999 does not amount to a denial of access to a court contrary to Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant complains that he has not been allowed to have a blood test carried out with a view to disproving his paternity and that he could not have the issue determined by a court. He relies on Articles 8 of the Convention which, in so far as relevant, provides:
“1. Everyone has the right to respect for his private ... life, ....
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 Court notes that the Banská Bystrica Regional Prosecutor’s Office informed the applicant on 5 February 1998 that the requirements laid down in Section 62 of the Family Act for a paternity action to be filed on the applicant’s behalf were not met and that a blood test could not be ordered by a public prosecutor against the will of the child’s mother. Since the application was introduced on 8 February 1999, in respect of this complaint the applicant failed to respect the six months’ time-limit laid down in Article 35 § 1 of the Convention.
The fact that subsequently courts at two levels of jurisdiction rejected the applicant’s paternity action filed on 24 June 1999 cannot affect this position: such an action was devoid of any prospect of success as it was filed after the expiry of the preclusive time-limit laid down in Section 57(1) of the Family Act. Neither the Banská Bystrica Regional Court’s decision of 10 July 2001 nor the subsequent refusal, by the General Prosecutor’s Office, to file an extra-ordinary appeal on points of law against that decision can, therefore, be considered as final decisions for the purpose of Article 35 § 1 of the Convention.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. Finally, the applicant complains that he had no effective remedy at his disposal in respect of his complaints under Articles 6 § 1 and 8 of the Convention. He alleges a violation of Article 13 of the Convention which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).
The Court has above found that the complaint under Article 6 § 1 of the Convention is manifestly ill-founded and that the complaint under Article 8 of the Convention was introduced out of time. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to his case.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy