Communicated on 18 January 2018
FIRST SECTION
Application no. 22963/16
Jarosław Feliks SŁOŃ
against Poland
lodged on 21 April 2016
STATEMENT OF FACTS
The applicant, Mr Jarosław Feliks Słoń, is a Polish national who was born in 1964 and lives in Warsaw.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant was in informal relationship with a certain L.Z. They did not live together.
On 10 October 2009 L.Z. gave birth to a son, I.
On 19 June 2009, that is to say when L.Z. was pregnant, her previous partner, M.Ż., acknowledged paternity of I. at the local registry office (Urząd Stanu Cywilnego). In accordance with Article 77 § 1 of the Family and Guardianship Code (Kodeks Rodzinny i Opiekuńczy) (see the “Relevant domestic law” section below), L.Z. gave her consent to M.Ż’s acknowledgment of paternity. The applicant was informed of this only after M.Ż. had recognised his paternity of I.
The applicant took care of I. from his birth as his mother was not able to look after him because of her health problems. The boy lived partly with L.Z. and partly with the applicant and called the applicant “Dad”. In May 2012 the applicant decided to undergo a private DNA test, which confirmed that he was the father of I. The test was conducted on material collected and delivered to the laboratory by the applicant.
In August 2012 L.Z. took I. from the applicant for a weekend but she did not return him and she stopped contacting the applicant. Since then the applicant has had no contact with the child. On 1 December 2012 L.Z. married M.Ż. and they began living together.
2. The applicant’s first application to the prosecution services
On 1 October 2012 the applicant requested the Warsaw-Praga Północ District Prosecutor to initiate proceedings to have the recognition of I. declared null and void (powództwo o ustalenie bezskuteczności uznania). By a letter of 5 November 2012 the District Prosecutor informed the applicant that he had found no grounds to initiate the requested proceedings.
The applicant lodged a complaint with the Warsaw-Praga Regional Prosecutor, and on 31 December 2012, the Regional Prosecutor remitted the case to the District Prosecutor in order that the latter could complete the proceedings (in particular to hear all the witnesses requested by the applicant and to establish all the circumstances of the case).
On 25 February 2013 the Warsaw-Praga Północ District Prosecutor again informed the applicant that there were no grounds to institute proceedings to have the recognition of I. by M.Ż. declared null and void. The prosecutor stated that the results of the private DNA test submitted by the applicant (which indicated his paternity of I.) had not been reliable and that the witnesses’ testimony had only confirmed his close contact with the child. The prosecutor also noted that I. was being brought up in the family of L.Z. and M.Ż., whom he considered to be his father, and that therefore the action would be against I.’s best interests. However, at the end of the submission it was indicated that the prosecutor’s position might change in the event that the applicant were to submit the results of a DNA test that could be acceptable as evidence in court.
The applicant lodged an appeal, which the Warsaw-Praga Regional Prosecutor found unjustified on 20 March 2013.
3. Proceedings for contacts
On 9 April 2013 the applicant lodged an application for contact with I. On 14 November 2014 the Warsaw Praga-Północ District Court (Sąd Rejonowy dla Warszawy Pragi-Północ) dismissed the application. The court referred to Article 1136 of the Family and Guardianship Code, which allowed for contact to be given to persons that have taken care of the child in question for a long time. Nevertheless, it dismissed the application. It found that according to an opinion dated 7 April 2014 drawn up by experts in psychology from the local family consultation centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny – “the RODK”), the applicant having contact with I. could have a destabilising effect on I.’s family situation and distort his sense of stability and security. This, in turn, could have a negative effect on his further emotional and social development.
On 22 April 2015 the Warsaw-Praga Regional Court (Sąd Okręgowy) dismissed an appeal lodged by the applicant.
4. The applicant’s second application to the prosecution services
On 20 March 2014 the applicant again applied to the Warsaw-Praga Północ District Prosecutor for the initiation of proceedings to have M.Ż’s recognition of I. declared null and void.
On 18 September 2014 the district prosecutor refused to initiate proceedings. The applicant lodged a complaint with the Warsaw Regional Prosecutor.
By a letter of 3 November 2015 the Warsaw Regional Prosecutor agreed with the District Prosecutor’s finding that in the case at issue “biological truth” could not prevail over the child’s best interests, given that I., while he was being brought up in the family of L.Z. and M.Ż., had the right to the security necessary for his proper development. The Regional Prosecutor emphasized that the refusal to initiate proceedings was based on a thorough analysis of the adduced evidence – that is to say the psychologist’s opinion of 12 August 2014 and the RODK’s opinion of 7 April 2014, the DNA test results and an analysis of the respective blood-types of the child and M.Ż (which had indicated he could not be his father).
B. Relevant domestic law
Under Article 72 of the Family and Guardianship Code, if there is no legal presumption that the mother’s husband is the father of her child, or if that presumption has been rebutted, the paternity of the child may be established by an application for recognition of paternity by the father, or by a decision of a court.
Pursuant to Articles 78 to 83, proceedings to have the recognition of a child declared null and void can be initiated by the mother, by the child or by the man who recognised his own paternity.
Under Article 86, a prosecutor may also initiate proceedings to establish or deny paternity or to have the recognition of a child declared null and void if this is necessary for the child’s welfare or the protection of the public.
COMPLAINTS
The applicant complains that, he was prevented from recognising a child of whom he claims to be the biological father. He alleges that there is no direct procedure available in the domestic law which would allow him to establish his legal paternity. He complains that the prosecution services exercised their power in a perfunctory manner and failed to consider all the submitted evidence.
QUESTIONS TO THE PARTIES
1. 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?
2. In particular, did the prosecutor’s refusal to bring an action to have declared null and void the recognition of a child amount to a violation of the applicant’s rights, as guaranteed by Article 8 of the Convention (see Różański v. Poland, no. 55339/00, §§ 75-79, 18 May 2006)?
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