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FIFTH
SECTION
CASE OF
KALACHEVA v. RUSSIA
(Application
no. 3451/05)
JUDGMENT
STRASBOURG
7 May 2009
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Kalacheva v.
Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Anatoly
Kovler,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 14 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3451/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Anna Anatolyevna
Kalacheva (“the applicant”), on 23 December 2004.
- The
applicant was represented by Mr S. Koshmarev, a lawyer practising in
Astrakhan. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged a violation of her right to respect for her private
life.
- On
1 September 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Astrakhan.
- On
5 September 2003 the applicant gave birth to a daughter out of
wedlock.
- On
11 November 2003 she lodged a claim with the Kirovskiy District Court
of Astrakhan against Mr A., with whom she allegedly had been in a
relationship since 2000, in order to establish paternity and obtain
child maintenance. In the course of the proceedings the applicant was
represented by a counsel.
- On
15 December 2003 the court ordered a DNA test to be carried out. The
blood samples were collected in Astrakhan and sent to a specialised
institute in Moscow for a forensic genetic examination. According to
the expert conclusion submitted on 19 March 2004, the probability
that Mr A. was the father of the applicant’s daughter was
99.99%.
- On
2 June 2004 the court heard the defendant’s representative, who
contested the admissibility of the DNA test on account of procedural
shortcomings, and the applicant, who insisted on its accuracy; and
rejected the applicant’s claim in full. It found that the
applicant had failed to support her allegations. With respect to the
expert forensic report the court found as follows:
“...Blood sampling for the expert report was
entrusted to the Bureau of forensic-medical examinations in the
Astrakhan Region...
According to the Instruction on organisation and
production of expert examinations in Bureaus of forensic medical
examinations, blood samples must be packed individually... An
envelope must be supplied, with identifying information (on the basis
of an identity document) and signatures of a medical worker who took
the blood samples and two medical workers who were present during
this procedure...
On the envelopes with the blood samples of Mr A., Ms
Kalacheva and Ms K.D. [the applicant’s daughter] there are no
data based on the identity documents of the above persons. Moreover,
there are only two signatures on the envelopes, one of which belongs
to a person who took the blood samples...
Taking into account that the blood samples were
collected with serious violations of the Instruction..., the court is
critical of the expert conclusion, since it cannot exclude the
possibility that the blood samples received by the experts were not
those collected from the parties.”
- The
court found the other evidence submitted by the applicant, namely a
photo showing her with the defendant and a badge in her name, issued
by the hostel (where they allegedly met), insufficient to conclude
that the defendant was her child’s father.
- The
applicant and her lawyer lodged an appeal against this judgment,
claiming that the case should be sent to a fresh examination due to
the court’s failure to respect the civil procedural law. On 29
June 2004 the Astrakhan Regional Court upheld the judgment of 2 June
2004. It mentioned that, under civil procedural law, an expert
conclusion was not binding
on the court, and that in the present case the DNA test, carried out
in breach of the relevant procedure, was not corroborated by other
evidence.
- On
20 June 2005 the Supreme Court of the Russian Federation rejected an
application for supervisory review lodged by the applicant’s
lawyer.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under
Article 37 of the Code of Civil Procedure of the Russian Federation
(“CCP”, in force as of 1 February 2003), rights and
interests of minors are protected in court proceedings by their legal
representatives – parents, adoptive parents or tutors. Under
Article 49 of the Family Code of the Russian Federation of
29 December 1995 (Семейный
кодекс РФ, in
force as of 1 March 1996), if a child is born to parents who are
not married to each other and there is no joint declaration or
declaration by the child’s father, the paternity of the child
shall be established in court proceedings on the application of
either parent, or tutor, or a child in question upon reaching a full
age. In such proceedings the court shall have regard to any evidence
that establishes the child’s paternity with certainty.
- Article
67 of the CCP provides that a court shall
evaluate evidence in confidence, based upon a comprehensive, detailed
and impartial review of all the evidence of the case.
No evidence has a
predetermined value.
15. An
expert conclusion is not binding upon the court, and shall be
evaluated by the court according to the rules stated in Article 67 of
this Code. If the court disagrees with the expert conclusion, it
shall explain its reasons in its decision (Article 86 §
3 of CCP). In
case of doubt as to the accuracy or reasonableness of the expert
conclusion, a court may order a second expert opinion to be prepared
by other experts (Article 87 § 2 of CCP).
- Resolution
no. 9 of the Plenary Supreme Court of the Russian Federation of 25
October 1996 on application by the courts of the Family Code of the
Russian Federation to cases concerning paternity and maintenance
provides that in order to establish paternity the court may, if
necessary, order a forensic examination. Under Article 86 § 3 of
the CCP, the experts’ conclusion regarding a child’s
descent, including a DNA test, is evidence that must be weighed
together with other evidence (Article 6).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
-
The applicant complained under Articles 6 and 8 of the Convention
that the domestic courts failed to establish the paternity of her
daughter’s biological father regardless of the results of the
DNA test. The Court considers that this complaint falls to be
examined under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family 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.”
A. Admissibility
- The
Government contended that the applicant had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention because
she had failed to lodge an application for supervisory review with
the Supreme Court.
- The
Court notes, firstly, that the applicant did in fact apply for a
supervisory review, but was unsuccessful (see paragraph 12 above). It
reiterates that an application for supervisory review is not a remedy
that has to be exhausted under Article 35 § 1 of the
Convention (see Shulepov v. Russia, no. 15435/03, § 23,
26 June 2008). Therefore, the Government’s objection as to the
non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Parties’ submissions
(a) The applicant
- The
applicant insisted that the DNA test had been carried out in the
Bureau of forensic medical examinations at the Astrakhan Regional
Health Department in strict accordance with the procedure prescribed
by law. That was why she had not had any reason to believe that the
result would be doubted and to request an additional expert
examination.
- She
further noted that Article 87 § 2 of the RF Code of Civil
Procedure clearly provided that in
case of doubt as to the accuracy of the expert examination it was up
to the court to order a second expert report. The law did
not impose a duty on the parties to request such a report, and the
court had to do that on its motion in order to solve the paternity
dispute.
23. The
applicant stressed that the Kirovskiy Court had had clear and
convincing evidence of A.’s paternity, but had failed to give
due consideration to all the circumstances of her case and had shown
a lack of respect for her private life. It is unclear what other
evidence she could present, also given that she and A. had
concealed their relationship.
(b) The Government
- The
Government stated that the blood sampling for the DNA test in the
present case had been carried out by the Astrakhan Regional Health
Department with an essential breach of the Instruction on
organisation and production of expert examinations in Bureaus of
forensic medical examinations. Blood sampling was conducted on 10
February 2004 in the presence of the parties, their lawyers and four
medical workers, including a person who took the samples. However,
there were only two signatures on the envelopes with the samples
instead of the three required; furthermore, these signatures were not
decoded as there were no names or positions next to them.
- The
Government claimed that inappropriate blood sampling which led to the
DNA test being declared inadmissible did not amount to an
interference with the applicant’s right guaranteed by Article 8
of the Convention. Under Article 87 § 2 of the Code of Civil
Procedure, a court could order a second test if it doubted the
accuracy of the previous one; however the applicant had failed to
request a new test.
-
Furthermore, under civil procedural law a plaintiff had to
substantiate his or her claim; yet the applicant had neither called
witnesses nor presented any other reliable evidence to prove that her
child was A.’s daughter or that she had had an intimate
relationship with A., whilst in the course of the proceedings it had
been proved that A. had a wife and two children and had never lived
together with the applicant as a family. The Government thus saw no
violation of the applicant’s rights guaranteed by Article 8.
2. The Court’s assessment
(a) Applicability of Article 8 of the
Convention
- The
Court reiterates that “private life” is a broad term
encompassing, inter alia, aspects of an individual’s
physical and social identity including the right to personal
autonomy, personal development and to establish and develop
relationships with other human beings and the outside world (see
Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR
2007 ...).
- The
Court has previously examined cases in which a man wished to
institute proceedings to contest his paternity of a child born in
wedlock or, alternatively, to have his putative biological paternity
recognised. In those cases the Court noted that the determination of
the father’s legal relations with his putative child concerned
his “private life” (see Shofman v. Russia, no.
74826/01, § 30, 24 November 2005; Yildirim v. Austria
(dec.), no. 34308/96, 19 October 1999; Rasmussen v.
Denmark, 28 November 1984, § 33, Series A no.
87; and Różański v. Poland, no. 55339/00,
§ 62, 18 May 2006). In a number of cases the Court has
also held that a right to respect for private life includes a right
of a child born out of wedlock to determine the legal relationship
between him or her and his or her natural father (see Mikulić
v. Croatia, no. 53176/99, § 53, ECHR 2002 I, and Jäggi
v. Switzerland, no. 58757/00, §§ 25-26, ECHR 2006 ...).
- The
present application is, however, different. The applicant, a mother
of a child born out of wedlock, complained of a violation of her own
right guaranteed by Article 8. Thus, a core of the present case is
the applicant’s ability to obtain recognition of A. as the
biological father of her daughter. In the Court’s view,
establishment of paternity of the applicant’s daughter is a
matter related to the “private life” of the applicant,
who bears full responsibility for her minor child. Recognition of the
natural father, apart from its financial and emotional purposes, may
also be important from the point of view of the applicant’s
social image, her family medical history and the web of entwined
rights and duties between the biological mother, biological father
and the child concerned.
- Accordingly,
the Court finds that Article 8 is applicable in the present case,
which concerns the applicant’s right to respect for her private
life. This is, in fact, not disputed between the parties.
(b) Compliance with the requirements of
Article 8 of the Convention
- The
Court reiterates that although the object of Article 8 is essentially
that of protecting the individual against arbitrary interference by
the public authorities, it does not merely compel the State to
abstain from such interference. In addition to this primarily
negative undertaking, there may be positive obligations inherent in
an effective respect for private and family life. These obligations
may involve the adoption of measures designed to secure respect for
private and family life even in the sphere of the relations of
individuals between themselves. The boundaries between the State’s
positive and negative obligations under Article 8 do not lend
themselves to precise definition. The applicable principles are
nonetheless similar. In particular, in both instances regard must be
had to the fair balance to be struck between the competing interests
(see Dickson v. the United Kingdom [GC], no. 44362/04, §
70, ECHR 2007 ...).
- In
the present case the domestic judicial authorities faced a
conflict between the competing interests of the mother of a child
born out of wedlock and the putative father. While it is not the
Court’s task to substitute itself for the competent national
authorities in determining the most appropriate method for the
establishment of paternity through a domestic judicial process, it
should examine whether the domestic authorities, in handling the
applicant’s claim, complied with the requirements and spirit of
Article 8 of the Convention (see, mutatis mutandis, Mikulić,
cited above, § 59).
- According
to Russian family law, a decision establishing paternity should
follow from a comprehensive and objective analysis of all evidence
which may confirm or rebut a child’s real origin. Furthermore,
no evidence may have a predominant value for a court.
- The
Court takes note of the domestic court’s finding and the
Government’s argument that the applicant failed to provide
sufficient proof of her relationship with A. and his paternity.
However, the Court observes that in the course of the domestic
proceedings the Kirovskiy Court ordered a DNA test to solve this
paternity dispute. The test showed a 99.99% probability that the
defendant was the child’s father. The Court does not lose sight
of the fact that today a DNA test is the only scientific method of
determining accurately the paternity of the child in question; and
its probative value substantially outweighs any other evidence
presented by the parties to prove or disprove the fact of an intimate
relationship. Furthermore, the applicant suggested that she and the
defendant had concealed their relationship; hence the genetic
examination could have been the only persuasive evidence of the
disputed paternity.
- The
defendant subsequently challenged the admissibility of this test,
referring to its alleged shortcomings, namely inappropriate marking
of the envelope with blood samples. The applicant, in her turn,
contested his arguments and insisted on the accuracy of the test. The
domestic courts found the test inadmissible and rejected the
applicant’s claim without ordering a new test.
- The
Court recalls that, according to Article 8 of the Convention, in
ruling on an application to have paternity established, the courts
should have special regard to the best interests of the child at
issue (see Jevremović v. Serbia, no. 3150/05, § 109,
17 July 2007). In the instant case the best interest of the
child implicated an unambiguous answer on whether or not A. was her
father. It appears that this issue could not be addressed
satisfactorily without a DNA test, and the second test was necessary
as long as the first one was found inadmissible for formal procedural
reasons. It is true that the applicant failed to request the second
test, as the Government pointed out. However it follows from the
wording of the Russian Code of Civil Procedure that it is at the
court’s discretion to order a second expert examination if
the accuracy of the previous expert conclusion is
doubted (see paragraph 15 above). This is of particular importance in
the present case, where the breach of the rule concerning a sampling
procedure, if it occurred, appears to be attributable to the Bureau
of forensic medical examinations, i.e. a State institution. Against
this background, the domestic courts by simply declaring the first
court-ordered DNA test inadmissible without ordering a new test, did
not apply Article 87 § 2 of the Code of Civil Procedure in the
light of the principles enshrined in Article 8 of the Convention.
- In
these circumstances the Court considers that the domestic
authorities’ approach in handling the applicant’s case
fell short of the State’s positive obligation to strike a fair
balance between competing interests of the parties to the proceedings
with due regard to the best interests of the child.
- There
has therefore been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government found this claim groundless and excessive.
- The
Court accepts that the applicant has suffered damage of a
non-pecuniary nature as a result of the State’s failure to
comply with its positive obligations relating to the right to respect
for her private life. It considers that the non-pecuniary damage
sustained by the applicant is not compensated for by the finding of a
violation of the Convention. Making an assessment on an equitable
basis, it awards the applicant EUR 5,000, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 68,596 Russian roubles (RUB) for the costs and
expenses incurred before the domestic courts and the Court. These
included the costs of the expert examination (RUB 19,096), counsel’s
fees (RUB 40,000) and translation costs (RUB 9,500). She produced
documents confirming the above amounts.
- The
Government pointed out that the expenses incurred in the domestic
proceedings should not be reimbursed.
- The
Court accepts that in the domestic proceedings legal expenses were
incurred in order to prevent the violation of the applicant’s
right to respect for her private life. According to the Court’s
case-law, an applicant is entitled to the reimbursement of costs and
expenses only in so far as it has been shown that these have been
actually and necessarily incurred and were reasonable as to quantum.
In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 1,500 covering costs under all heads, plus
any tax that may be chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into Russian
roubles at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage plus any tax that may be chargeable on that
amount; and
(ii) EUR 1,500 (one thousand five hundred euros) in
respect of costs and expenses, plus any tax that may be chargeable to
the applicant on that amount;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 7 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait
Maruste
Registrar President
