Communicated on 10 January 2014
SECOND SECTION
Applications nos. 3551/08 and 10038/08
Vilijem Andrea NIKOLIĆ against Serbia
and Teodora ĐUKANOVIĆ against Serbia
lodged on 10 January 2008 and 6 February 2008 respectively
STATEMENT OF FACTS
THE FACTS
The first applicant, Mr Vilijem Andrea Nikolić, is a citizen of Bosnia and Herzegovina, who was born in 1984 and lives in Banja Luka (Bosnia and Herzegovina). He is temporarily residing in London (the United Kingdom). He is represented before the Court by Ms G. Rakočević, a lawyer practising in Niš.
The second applicant, Ms Teodora Đukanović, is a Serbian national, who was born in December 1993 and lives in Belgrade. She is represented before the Court by Ms Z. Đukanović, her mother.
A. The circumstances of case no. 3551/08
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was born out of wedlock on 17 March 1984. He states that he was born from a relationship between his mother, S.A., and a N.N.
The applicant’s mother declined to bring a paternity action against N.N. The applicant was apparently abandoned by her at a young age and grew up living with his maternal grandmother.
N.N. had not made any contact with the applicant in his early childhood nor had he acknowledged paternity of the applicant. As of 1996, however, N.N. made regular contact with the applicant, brought him on many occasion to his home in Belgrade, gave presents for his birthday, went on summer holidays with him and secured for him a faculty scholarship from his employer.
N.N. died suddenly in November 1999 without leaving a will. The applicant was mentioned in the death certificate among the deceased’s family members and was subsequently granted a family pension (porodičnu penziju). On 4 April 2000 N.N.’s brother, P.N., inherited the deceased’s whole property, being identified as his sole heir in the course of inheritance proceedings.
On 1 July 2002, when the applicant turned 18 years old, he brought a paternity action before the Belgrade Third Municipal Court against P.N. as his putative father’s sole heir.
Following the institution of proceedings, the Municipal Court adjourned, for various procedural reasons, five separate hearings initially scheduled for 2 April 2003, 15 December 2003, 12 March 2004, 28 January 2005 and 1 July 2005. In addition, on 12 March 2004 the court requested the applicant to amend his claim, specifying his mother as the second respondent, as well as to provide her address. On 12 April 2004 the applicant complied with the court’s order, enclosing his mother’s registered address. He suggested that the court appoint a guardian to act on her behalf should it transpire that she did not live at that address any more.
Thereafter, at the hearing scheduled for 14 December 2006, the court noted that there no one had been found at the applicant’s mother’s and grandmother’s addresses. The applicant’s lawyer was ordered to provide their correct addresses, as well as a valid power of attorney. On 26 December 2006, the applicant enclosed the same grandmother’s address for both, as his mother had apparently moved to the grandmother’s house in the meantime. He also requested the exhumation of N.N.’s mortal remains to enable the taking of biological material for conducting a DNA testing.
In 20 December 2007 the court stayed the proceedings as the respondent had died in July 2007. On 15 August 2008 the applicant identified P.N.’s daughter, M.N.S., as the respondent.
On 22 June 2009 the Belgrade Third Municipal Court ruled in favour of the applicant, rejecting his proposal for a DNA test.
On 19 May 2010 the Appeals Court quashed that judgment and remitted the case for retrial. It clarified that in paternity disputes a DNA test should be carried out, as DNA samples were assumed to be of significant, and probably decisive, importance in establishing paternity.
In the resumed proceedings, on 5 September 2011 the mortal remains of N.N. were exhumed and tissue samples were taken from the corpse. On 24 September 2012, the accredited testing institution found it established that N.N., with a probability that exceeded 99.99 %, was the applicant’s biological father.
On 21 February 2013 the Belgrade High Court[1] ruled in favour of the applicant.
The case is currently pending on appeal.
B. The circumstances of case no. 10038/08
The applicant was born out of wedlock on 14 December 1993.
On 27 January 1994 the applicant, represented by her mother, and her mother herself, brought an action before the Belgrade Fourth Municipal Court against the applicant’s putative father I.P. (“the respondent”), seeking a declaration of paternity and child maintenance.
In 1995 and in compliance with an order issued by the Municipal Court, the Blood Transfusion Institute in Belgrade conducted blood tests, having taken samples provided by the three parties. The blood-type analysis did not rule out the respondent being the applicant’s father. The probability that the respondent was the father of the first applicant was 99.52% and, as such, “highly likely”. None of the parties objected to these findings.
On 9 December 1996 the Municipal Court established the respondent’s paternity and partly granted the child maintenance requested from him.
On 18 September 1997 the Belgrade District Court upheld the judgement in respect of the declaration of paternity and increased the maintenance.
On 4 February 1999 the Supreme Court quashed the above judgments on the respondent’s appeal on points of law and remitted the case for retrial. In so doing, the Supreme Court noted the findings of the blood-type analysis, but in view of what was at stake in the civil status dispute, instructed the lower courts to provide, in addition, evidence based on anthropological tests.
In the resumed proceedings, between May 1999 and December 2002, thirteen hearings were scheduled, six of which were held (each lasted between 15 and 30 minutes) and seven adjourned. Four hearings were adjourned because the summonses had not been duly served on one or both parties; three hearings were adjourned due to the respondent’s failure to appear in court and two hearings upon requests by the applicant’s lawyer. Furthermore, during this time, on four occasions the Municipal Court ordered a DNA test of the parties and the payment of an advance deposit for the costs of testing by the respondent. The DNA test could not be scheduled as the respondent had apparently failed to comply with the payment orders.
At the next hearing on 20 November 2004, the court, upon the respondent’s proposal, again ordered a DNA test by the PCR method and ordered the respondent to make an advance deposit for costs the amount of which was to be determined by the Biological Faculty which had been charged with the testing. As the respondent had failed to make the deposit, the court reiterated this order on 17 November 2005.
The three hearings scheduled for 17 October 2005, 13 June 2006 and 29 September 2006 were not held as the respondent had not been duly summoned or had failed to enquire about the correspondence deposited by the court’s bailiff at the local post office.
At the hearing held on 1 December 2006, the respondent informed the court that he had in the meantime moved to Germany, but that he was willing to pay the costs and undergo the DNA testing. The court ordered the respondent to deposit the advance by 14 December 2006, fixed an appointment at the Biological Faculty on 18 December 2006 and, lastly, announced the date of the next hearing (23 February 2007) and the legal consequences of failure to appear. The respondent again failed to make the advance deposit.
The respondent did not appear in court on 23 February 2007. The court ordered him to pay the deposit and undergo a DNA test by 13 April 2007, as well as to appear at the next hearing on 9 May 2007. The respondent apparently paid the deposit, but failed to keep appointment for the test.
The respondent failed to appear on 9 May 2007 and the court concluded the hearing.
On 30 October 2007 the applicant’s counsel received the Municipal Court’s judgment of 9 May 2007, whereby it had (i) noted that the respondent had extensively abused his procedural rights and established the defendant’s paternity, inter alia, on the basis that the defendant’s avoidance of a DNA test corroborated the applicant’s claim; (ii) awarded the applicant maintenance from him; and (iii) authorised the applicant’s mother to solely exercise parental rights and responsibilities in respect of the applicant. This judgment became final on 21 November 2007.
B. Relevant domestic law
1. Relevant provisions concerning paternity and maintenance disputes
a) The Marriage and Family Relations Act (Zakon o braku i porodičnim odnosima; published in the Official Gazette of the Socialist Republic of Serbia - OG SRS - nos. 22/80, 11/88 and OG RS nos. 22/93, 25/93, 35/94, 46/95 and 29/01)
According to Article 98 § 2, a child born of wedlock was entitled to bring a paternity action by turning 25 years.
Article 310b provided that all maintenance-related suits were to be dealt with by the courts urgently.
b) Family Act (Porodični zakon; published in OG RS no. 18/05)
Article 45 provides that paternity, if it had not been acknowledged, may be established by a final court decision. According to Article 59 and 251 § 1 respectively, a child, regardless of his/her age, has the right to know who his/her parents are and may bring a paternity action in that respect without a time limit. Article 255 § 1 provides that if the defendant in a maternity and paternity dispute is no longer alive, the action is brought against the defendant’s heirs.
Under Article 204 all family-related disputes involving children must be resolved urgently. The first hearing must be scheduled within 15 days of the date when the claim was filed. First instance courts should conclude the proceedings following no more than two hearings, and second instance courts must decide on appeal within a period of 30 days.
Similarly, Article 280 defines all maintenance suits as “particularly urgent”. The first hearing must be scheduled within 8 days of the date when the claim was filed and the second instance courts must decide on appeal within 15 days.
This Act entered into force on 1 July 2005 and thereby repealed the Marriage and Family Relations Act referred to above, unless otherwise provided for by this Act. In any event, according to Article 357 § 4, if the first instance ruling in a case was quashed after 1 July 2005, further proceedings are to be carried out pursuant to the provisions of this Act.
2. Relevant provisions of the civil procedure acts
a) The Civil Procedure Act (Zakon o parničnom postupku; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 4/77, 36/77, 6/80, 36/80, 43/82, 72/82, 69/82, 58/84, 74/87, 57/89, 20/90, 27/90, 35/91, and the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 27/92, 31/93, 24/94, 12/98, 15/98 and 3/02)
Article 8 provides that the courts are to determine civil matters according to their own discretion after carefully assessing all the evidence presented individually and as a whole, and taking into account the results of the overall proceedings.
Under Article 221a, the courts may also draw conclusions as to the facts of a case based on the application of the “rules on the burden of proof”.
In accordance with Article 269, neither the plaintiff nor the respondent can be “forced” to appear in court or, indeed, give a statement. The court itself, however, may take into account the parties’ failure/refusal to do so and draw its own conclusions therefrom.
Article 153 provides that a party shall make, upon a court’s order, an advance deposit for the costs that will be incurred in connection with the taking of the evidence, which that party has moved for. Failure to do so within an allotted time limit will lead the court to revoke the taking of that evidence. In that case, the court should critically assess, in the light of all circumstances of the case, the relevance of the party’s conduct for the outcome of the dispute.
b) The Civil Procedure Act (Zakon o parničnom postupku; published in OG RS no. 125/04)
The language of Articles 8, 148 §§ 1 and 4, 163, 223 § 1 and 267 contained in this Act corresponds to Articles 8, 153 and 269 of the Civil Procedure Act referred to above.
Articles 220 and 223 §§ 2 and 3, however, provide that every civil party shall state the facts in its favour and propose the supporting evidence as well as actively attempt to challenge the other party’s factual and/or legal claims.
This Act entered into force on 22 February 2005, thereby repealing the Civil Procedure Act referred to above.
COMPLAINTS
Referring to Articles 6 and 8 of the Convention, each applicant complains about the excessive length of the respective paternity proceedings at issue, as well as that the continued failure of the domestic courts to adopt final decisions in their paternity cases has left them in a state of prolonged uncertainty regarding their personal identity.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 8 of the Convention? In particular, did the delays in having the applicants’ paternity disputes decided amount to a lack of respect for their private lives respectively within the meaning of Article 8 of the Convention (see Mikulić v. Croatia, no. 53176/99, §§ 56-66, ECHR 2002‑I; Jevremović v. Serbia, no. 3150/05, §§ 97-112, 17 July 2007, and Jäggi v. Switzerland, no. 58757/00, §§ 28-44, ECHR 2006‑X)?
2. Has the length of the paternity disputes been excessive within the meaning of Article 6 § 1 of the Convention (see Mikulić v. Croatia, cited above, §§ 35-38 and 44-46, ECHR 2002‑I; Jevremović v. Serbia, cited above, §§ 79-86, and Szarapo v. Poland, no. 40835/98, § 45, 23 May 2002)?
[1] Following the judicial reform, the Belgrade High Court has become the competent court in this case.
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