Communicated on 28 January 2014
FIFTH SECTION
Application no. 41447/09
Oleksandr Volodymyrovych GONCHAROV
against Ukraine
lodged on 6 July 2009
STATEMENT OF FACTS
The applicant, Mr Oleksandr Volodymyrovych Goncharov, is a Ukrainian national, who was born in 1977 and lives in the town of Perevalsk, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Since 2001 the applicant had close relations with G. On 24 May 2002 the applicant married her.
On 30 July 2002 G. gave birth to a daughter, K.
On 29 August 2002 the applicant was registered as K.’s father.
In September 2002 G. told the applicant that he was not the father of K. According to the applicant, on that date “family relations ceased”.
On 22 April 2004 the applicant and G. divorced.
In June 2005 the applicant instituted proceedings requesting deletion of the registry record that he was the father of K.
On 4 July 2005 the court ordered a forensic medical immunological expert evaluation.
On 24 November 2005 the Alchevskyy Town Court found for the applicant. The court held that the information that the applicant was the father of K. should be deleted from the birth register since, according to a forensic medical immunological expert evaluation, it was not possible that the applicant was K’s father.
G. appealed against this decision.
On 14 April 2006 the Lugansk Regional Court of Appeal, on G.’s request, ordered an additional forensic medical immunological expert evaluation to be carried out by the Poltava Interregional Scientific Research Expert Consultation Centre “E.”.
On 4 August 2006 the same court ordered a new expert evaluation of blood with the DNA analysis. This evaluation was to be performed by the Main Medical Forensic Expert Evaluation Bureau since the “E.” Centre had informed the court that it did not carry out immunological researches. The court put before the experts the following questions: whether the applicant was the father of K., and whether the possibility that the applicant was the father of K. could be excluded.
On 17 July 2007 the Main Medical Forensic Expert Evaluation Bureau concluded, after having conducted a molecular-genetic analysis, that it was not possible that the applicant was the father of K.
On 1 April 2008 the Lugansk Regional Court of Appeal, referring to the conclusion of the Main Medical Forensic Expert Evaluation Bureau, upheld the decision of 24 November 2005.
On 1 April 2009 the Supreme Court of Ukraine quashed these decisions and found against the applicant. The court referred to Article 56 of the Marriage and Family Code of Ukraine and noted that the applicant had been aware of the relevant birth register from the date of the entry. However, he lodged his claim only in June 2005. Consequently, he missed the one year time limit which is counted from the date of his registration as the child’s father.
B. Relevant domestic law
Article 56 of the Marriage and Family Code of Ukraine, in force at the material time, provided that a person registered as a father of a child in the birth registry can challenge this entry during the year which starts to run from the date when the concerned person has learned about the entry.
After 1 January 2004 the new Family Code of Ukraine (Article 136) provided that the paternity entry could be challenged at any time after the child’s birth and until the child attains the age of majority.
COMPLAINT
The applicant complained under Article 8 of the Convention about breach of his right for respect of his private life by the limitation of the time for challenging the paternity entry in the birth registry.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention, by the Supreme Court’s decision of 1 April 2009? In particular, was the decision of the Supreme Court of Ukraine, which referred to the Marriage and Family Code (Article 56) at a time when that legislation had been replaced by Article 136 of the new Family Code, lawful, did it persue a legitimate aim and was it proportionate?
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