In the case of Röman v. Finland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Lawrence Early, Section
Registrar,
Having deliberated in private on 11 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
13072/05) against the Republic of Finland lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Finnish national, Ms Mirja Anneli Röman (“the
applicant”), on 6 April 2005.
The applicant was represented by Ms Marja
Toivio-Kaasinen, a lawyer practising in Helsinki. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry
for Foreign Affairs.
The applicant alleged, in particular, under
Articles 8 and 14 that she had been unable to have her biological father’s
paternity legally established due to the five-year time-limit set in national
legislation for children born before the entry into force of the Paternity Act
in 1976.
On 28 April 2008 the President of the Fourth
Section decided to communicate the complaint concerning the impossibility to
establish paternity and the discrimination complaint to the Government. It was also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1954 and lives in Vantaa.
The applicant was born out of wedlock and bore
her mother’s maiden name. Her mother and her biological father concluded a
child support agreement the same year. The agreement was verified by the social
services.
In 1956 the mother married another man and in
1961 the applicant’s name was changed to that of her mother’s husband. The
spouses agreed that the applicant’s biological father was never to be mentioned.
The applicant had two siblings from that marriage.
On 1 October 1976 the Paternity Act (isyyslaki,
lagen om faderskap) came into force. The
transitional provisions in the Implementing Act of the Paternity Act (laki
isyyslain toimeenpanosta, lagen angående införande av lagen om
faderskap) state that paternity proceedings with
regard to a child born before the entry into force of the law had to be
initiated within five years, that is, before 1 October 1981. Moreover, no claim
could be examined after the death of the father. No such restrictions exist for
children born after the entry into force of the Paternity Act.
At some point the applicant started wondering
about her biological background. In 2001 she discovered that in the church
registry, which until 1993 was the only official population registry, her
mother’s husband was listed as her stepfather. The State population registry,
with which the church records were merged in 1993, stated that the mother’s
husband was her father. She also located a copy of the child support agreement
in the archives of the social services which made it possible for her to locate
her biological father.
On 25 September 2002 the information in the
State population register was corrected.
On 6 February 2003 the applicant initiated
paternity proceedings against her biological father in the Vantaa District
Court (käräjäoikeus, tingsrätten). She claimed that she had only learned
in December 2001 that the mother’s husband, who had been registered as her
father, was not her biological father.
On 18 June 2003 the District Court dismissed the
applicant’s claim. It found that during the five-year time-limit, the applicant
had been an adult and could have initiated paternity proceedings. She could also
have questioned her mother or could have verified the information on the church
register, which had been correct all the time. The application of the five-year
time-limit was not in contradiction to the Constitution or the Convention. Her
claim was thus time-barred.
On 17 July 2003 the applicant appealed to the
Helsinki Court of Appeal (hovioikeus, hovrätten), claiming that she had
not known that her mother’s husband was not her biological father. Her mother
had testified in the District Court that she had never told her daughter about
her origins and that this issue was never discussed in the family. During the
five-year period the applicant would not have had any interest in initiating
proceedings as she was not yet aware of her legal status.
On 15 March 2004 the Court of Appeal upheld the
District Court’s decision on the same grounds as the latter.
On 13 May 2004 the applicant appealed to the
Supreme Court (korkein oikeus, högsta domstolen), reiterating the
grounds of appeal already presented before the Court of Appeal.
On 12 October 2004 the Supreme Court refused the
applicant leave to appeal.
In January 2005 the applicant filed a petition
with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens
justitieombudsman). On 16 February 2005 the Deputy Parliamentary Ombudsman
considered that the national courts had acted within their margin of
appreciation, and that he could not examine a case unless the margin of
appreciation had been exceeded or misused.
In 2007 the applicant had a DNA test performed
privately on her biological father, which proved with 99.99% certainty that he
was her biological father.
On 3 July 2008 the applicant’s biological father
died.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions
The Constitution of Finland (perustuslaki,
grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2,
guarantees to everyone equality before the law and forbids discrimination of
any kind:
“Everyone is equal before the law.
No one shall, without an acceptable
reason, be treated differently from other persons on grounds of sex, age,
origin, language, religion, conviction, opinion, health, disability or other
reason that concerns his or her person. ...”
Article 10 of the Constitution guarantees the right
to privacy:
“Everyone’s private life, honour and the sanctity of the home
are guaranteed. More detailed provisions on the protection of personal data are
laid down by an Act.”
Article 21, paragraph 1, of the Constitution
guarantees to everyone the right to have one’s case dealt with by a court of
law:
“Everyone has the right to have his or her case dealt with
appropriately and without undue delay by a legally competent court of law or
other authority ...”
Article 106 of the Constitution gives a court of
law the right to give primacy to the Constitution when the application of an
Act would conflict with the Constitution:
“If, in a matter being tried by a court of law, the application
of an Act would be in evident conflict with the Constitution, the court shall
give primacy to the provision in the Constitution.”
According to Chapter 12, section 1, subsection
2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken;
Act no. 444/1999):
“A minor who has attained fifteen years of age shall have an
independent right of action and right to be heard in a matter concerning his or
her person, parallel to that of the person responsible for his or her care and
custody or his or her other legal representative.”
B. Provisions and practice regulating paternity
According to section 20 of the Act on Children
Born out of Wedlock (laki avioliiton
ulkopuolella syntyneistä lapsista, lagen om barn utom
äktenskap, Act no. 173/1922), a child born out of wedlock had a father, if
a man acknowledged paternity, but paternity could not be established against a
man’s will. According to section 24 of the same Act, such defendant was deemed to
be the person liable to provide child support to the child if he had had sexual
intercourse with the child’s mother at the time when the child was possibly
conceived. However, such an action was to be dismissed if it was manifestly
improbable that the child was conceived as a result of that sexual intercourse.
As children born out of wedlock were put in a
substantially worse position than children born in wedlock, there was a need to
guarantee equal treatment of all children before the law (see government
proposal HE 90/1974). This became the main aim of the new Paternity Act of
1975 (isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the
Act of 1922.
Section 3 of the Paternity Act provides that
paternity is established either by acknowledgement or by a court decision.
According to section 22, subsection 1, the child has a right to institute
proceedings with a view to having paternity established.
Section 4 of the Implementing Act of the
Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av
lagen om faderskap, Act no. 701/1975) provides that the provisions of the
Paternity Act shall also apply if the child was born before the entry into
force of the Act, unless otherwise provided. Section 5 provides that if a man,
pursuant to the Act on Children Born out
of Wedlock, enacted before the entry into force of the Paternity
Act, has committed or been obliged by a final judgment to pay child support to
a child born out of wedlock who has not the status of an acknowledged child,
the provisions in sections 6 and 7 of this Act shall apply to the investigation
of paternity, actions for the establishment of paternity and the exercise of
the child’s right to be heard.
Sections 6 and 7 of the Implementing Act of the
Paternity Act provide as follows:
“The child welfare supervisor shall attend to the investigation
of paternity as provided in the Paternity Act, if a child born before the entry
into force of this Act has not reached fifteen years of age and the mother or
the legal guardian of the child has expressed a wish that the child welfare
supervisor attend to the investigation of paternity. After a man has
acknowledged his paternity, the provisions in section 5, subsection 2; section 20,
subsection 1; and section 21 of the Paternity Act shall apply to the obligation
of the child welfare supervisor to attend to the investigation of paternity,
and to the enforcement of acknowledgement.”
“A child or his or her legal guardian shall have the right of
action for the establishment of paternity as provided in the Paternity Act. The
child welfare supervisor shall not be entitled to exercise the child’s right to
be heard without a separate authorisation. Proceedings for the establishment of
paternity must be initiated within five years from the entry into force of the
Paternity Act. However, no proceedings may be instituted if the man is deceased.”
It appears from the drafting history of the
Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10)
that considerations of legal certainty underlie the decision to restrict the
right of action. The entry into force of the Act opened up an opportunity to
initiate proceedings that did not exist at the time when the children in
question were conceived. The legislator considered that putative fathers’ legal
security required rapid elimination of uncertainty about possible claims being
brought against them on the basis of the Paternity Act. The restriction stating
that a man’s death prevented the initiation of proceedings was justified by the
argument that, in such cases, it was usually no longer possible to obtain sufficient
evidence of the man’s paternity.
The Supreme Court has held on several occasions
that the five-year time-limit in question is to be strictly applied. An
exception has been made in a case where the paternity of the mother’s husband
had to be annulled first and, as a result of that, the child would have become
fatherless if the time-limit had been strictly respected (see KKO 1993:58).
In its precedent case KKO 1982-II-165 the
Supreme Court considered that the five-year time-limit in section 7, subsection
2, of the Implementing Act of the Paternity Act was not such a time-limit that
could be restored by seeking extraordinary remedies (menetetyn määräajan
palauttaminen, återställandet av försutten fatalietid).
In its most recent precedent case KKO 2012:11
the Supreme Court found, in plenum composition, the following:
“27. As described above in points 11 and 12,
according to the interpretation of the European Court of Human Rights an
application of restrictions of right to institute paternity proceedings may
lead to a violation of the right to respect for private life protected by
Article 8 if such restrictions in practice prevent the fact of clarifying of a
person’s biological father and the confirmation of the paternity. This may have
been the case in situations in which a person has not had a real opportunity,
due to reasons beyond his or her control, to clarify the identity of his or her
biological father and to have the paternity confirmed by a court within the
time-limit.
28. According to the case-law of the European Court
of Human Rights the assessment whether reasons favouring the granting of the
right of appeal weigh heavier than the reasons speaking against it, must be
made in casu and with an intent to reach a fair balance between the
competing interests. The case-law does not give a direct guidance on what
issues the assessment needs to be based from the point of view of the putative
father’s and his family’s interests and general legal certainty. The scope of the
domestic margin of appreciation, as it appears from the current case-law of the
Court, remains in practice narrow. The Supreme Court considers that the in
casu assessment applied by the European Court of Human Rights means that
the aims of legal security and the protection of the prevailing circumstances,
which normally relate to the restricting of the time allowed to institute an
action, remain to a large extent unattained.
29. A paternity can currently be clarified with the
help of DNA tests with considerable certainty and without significance being
given to the passage of time in gathering evidence on the paternity. This
ground, which led to the imposition of the time-limit in section 7, subsection
2, of the Implementing Act [of the Paternity Act], has thus lost its
significance. Knowing one’s biological origin and its judicial confirmation and
pronouncement are, according to the current knowledge, important parts of a
person’s identity and therefore fall to the core areas of protection of private
life, guaranteed by Article 10 of the Constitution and Article 8 of the
Convention. The passage of time does not mean either that a child’s need to
know his or her both parents and to have the paternity confirmed would
disappear but it may even grow. Legal security and the long prevailed legal
state of affairs, which has not been the result of a child’s conscious and free
choice, are not as such sufficient grounds to support that a child should not
be able to institute paternity proceedings after the time-limit has expired. In
such situation the non-confirmation of the paternity requires that in that
particular case there are very strong factual counter reasons relating to the
putative father’s or to other persons’ rights.
30. On the above grounds the Supreme Court considers
that a principle emerges from the case-law of the European Court of Human
Rights that a child has, except in special circumstances, a right to know who
his or her biological father is and to have a case concerning confirmation of a
such legal status examined by a court, at least once. Such principle cannot
currently be regarded as unclear or subject to interpretation. At the same time
these rights concerning a person’s origin and identity clearly fall within the
scope of protection of private life guaranteed by Article 10 of the
Constitution.
31. The Supreme Court considers that the application
of the time-limit in section 7, subsection 2, of the Implementing Act in cases
in which legal or factual reasons have prevented the institution of paternity
proceedings in due time, can therefore lead to an evident conflict with the
Constitution. In such situation a court must, in accordance with Article 106 of
the Constitution, give primacy to the constitutional provision.
32. In Finland a legal relationship to a father can
be confirmed only, according to the Paternity Act, by acknowledgement or by a court
decision. Any legal effects which are based on other legislation cannot be
restricted in the context of the confirmation of the paternity but they are to
be decided, if need be, separately. Nor is imposing restrictions justified in
the present case as the expressly mentioned main aim of the Paternity Act is
the realisation of the legal equality of children. One has to take into account
also the principles of Article 6 of the Constitution, according to which
everyone is equal before the law and no one shall, without an acceptable
reason, be treated differently from other persons on grounds of origin or other
reason that concerns his or her person.”
In the case at hand the provision concerning the five-year
time-limit was therefore left inapplicable on the strength of Article 106 of
the Constitution and paternity was confirmed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that her right to
respect for family life had been violated when national legislation had
deprived her of her biological father. Article 8 of the Convention reads as
follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
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 Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant agreed that she had been an adult
when the Paternity Act had entered into force but pointed out that she had
learned about her origins only in 2001. She had lived with her mother and the
latter’s husband all her life, she bore her stepfather’s name and nobody, not
even her mother, had told her the truth. She had had no reason to suspect,
during the statutory five-year period, what her origins were. Nor had she had
any idea of the identity of her biological father. Had she known the truth at
the time, she would have started the proceedings against her biological father
within the five-year time-limit. The application of the five-year time-limit
was too strict and absolute. The interference with the applicant’s rights had thus
not been necessary in a democratic society.
The Government accepted that the impossibility
for the applicant to have her father’s paternity established after the expiry
of the five-year time-limit had constituted an interference with her private
life under Article 8 of the Convention. The impugned measures had had a basis
in Finnish legislation, namely in section 7, subsection 2, of the Implementing
Act of the Paternity Act.
As to whether the interference had been
“necessary in a democratic society”, the Government pointed out that the
applicant had been an adult, 22 years old, when the Paternity Act entered into
force in 1976. The Act was retroactive in order to guarantee equality in law
between children, irrespective of their descent. The time-limit of five years
only concerned cases where paternity was to be established by a court decision
while it was still possible for a father to acknowledge such a child. The aim
of the time-limit had been to ensure a rapid examination of possible claims
made against putative fathers in order to protect their rights and freedoms,
and to ensure legal certainty and finality in family relations. The restriction
concerning a man’s death was justified, as in such cases it was usually no
longer possible to obtain sufficient evidence of paternity.
The Government pointed out that, in the present
case, the applicant had been an adult when the Paternity Act came into force
and she would have been able to initiate proceedings during the five-year
time-limit. The applicant alleged that the reason for not having instituted
paternity proceedings during that time-limit but only twenty-two years later,
in February 2003, was that she had only learned on 13 December 2001 that she
was not the daughter of her mother’s husband. Even though the applicant had
received child support from her putative father, it did not mean that the
latter’s paternity had been established. The applicant had known, or at least
had had grounds for assuming, who her father was. She had suspected already as
a teenager, that is, before the entry into force of the Paternity Act, that her
mother’s husband was not her biological father. She could have checked that in the
church register, where the information had been correct, and initiated
proceedings. The reform of family legislation, including the paternity laws,
had been one of the main legal reforms of the 1970s and it had been widely
publicised. The applicant, being an adult during the five-year period, must
have been aware of the law reform and the new possibility to have her alleged
father’s paternity established by a court decision. The five-year time limit
was thus proportionate to the legitimate aim pursued, namely the general
interest in protecting legal certainty of family relationships.
2. The Court’s assessment
a. Applicability of Article 8 of the Convention
The Court notes that it is not disputed between
the parties that Article 8 is applicable.
In this connection the Court notes that the
applicant, born out of lawful wedlock, sought by means of judicial proceedings
to determine her legal relationship with the person she claimed was her father,
through the confirmation of the biological truth.
The Court has held on numerous occasions that
paternity proceedings fall within the scope of Article 8 (see Mikulić v. Croatia, no. 53176/99, § 51,
ECHR 2002-I; and Jäggi v. Switzerland,
no. 58757/00, § 25, ECHR 2006-X). In the instant case the Court is
not called upon to determine whether the proceedings to establish parental ties
between the applicant and her biological father concern “family life” within
the meaning of Article 8, since in any event the right to know one’s ascendants
falls within the scope of the concept of “private life”, which encompasses
important aspects of one’s personal identity, such as the identity of one’s
parents (see Odièvre v. France [GC],
no. 42326/98, § 29, ECHR 2003-III, and Mikulić
v. Croatia, cited above, § 53). There appears, furthermore, to be no
reason of principle why the notion of “private life” should be taken to exclude
the determination of a legal or biological relationship between a child born
out of wedlock and his natural father (see, mutatis
mutandis, Mikulić, ibid.;
and Jäggi v. Switzerland, cited above, § 25).
Accordingly, the facts of the case fall within
the ambit of Article 8 of the Convention.
b. Whether the case involves a positive obligation or
an interference
The Court reiterates that the essential object
of Article 8 is to protect the individual against arbitrary action by public
authorities. There may in addition be positive obligations inherent in ensuring
effective “respect” for private or family life. These obligations may involve
the adoption of measures designed to secure respect for private life even in
the sphere of the relations of individuals between themselves (see Kroon and
Others v. the Netherlands, 27 October 1994, § 31, Series A no. 297-C;
and Mikulić v. Croatia, cited above, § 57). However,
the boundaries between the State’s positive and negative obligations under this
provision do not lend themselves to precise definition. The applicable
principles are nonetheless similar. In both contexts regard must be had to the
fair balance that has to be struck between the competing interests of the
individual and of the community as a whole; and in both contexts the State
enjoys a certain margin of appreciation (see Keegan v. Ireland, 26 May
1994, § 49, Series A no. 290; and Kroon
and Others v. the Netherlands, cited above).
The Court reiterates that its task is not to
substitute itself for the competent domestic authorities in regulating
paternity disputes at the national level, but rather to review under the
Convention the decisions that those authorities have taken in the exercise of
their power of appreciation (see, inter alia,
Różański v. Poland, no. 55339/00,
§ 62, 18 May 2006; Mikulić
v. Croatia, cited above, § 59; and Hokkanen
v. Finland, 23 September 1994, § 55, Series A no. 299-A). The
Court will therefore examine whether the respondent State, in handling the
applicant’s action for judicial recognition of paternity, has complied with its
positive obligations under Article 8 of the Convention.
c. Whether the impossibility to bring an action was
“in accordance with the law” and pursued a legitimate aim
At the outset, the Court observes that the
applicant did not dispute that the impossibility of bringing an action for
judicial recognition of paternity was “in accordance with the law”. Indeed, she
complained that the time-limit imposed by the Paternity Act prevented her from
having the possibility of obtaining judicial recognition of paternity before
the domestic courts, in violation of Article 8 of the Convention.
In this connection it can be observed that the
Paternity Act introduced the right of a child or his or her legal guardian to
institute proceedings for judicial recognition of paternity in the domestic
legal system in 1976. According to the Implementing Act of the Paternity Act
and concerning children born before the entry into force of the Paternity Act,
this right was subject to a five-year time-limit which started to run from the
entry into force of the Act in 1976. Thus, in the instant case the applicant
had until 1 October 1981 to institute paternity proceedings. The applicant,
however, instituted such proceedings only in February 2003 as she claimed that she
had not known that her mother’s husband was not her biological father until in December
2001 when she found out about the child support agreement signed by her
biological father and the entry in the church register. Her application was
then found to be time-barred.
The impossibility of bringing an action for
judicial recognition of paternity pursued a legitimate aim. The time-limit
imposed by the Implementing Act of the Paternity Act for actions concerning
recognition of paternity was intended to protect the interests of putative
fathers from stale claims and prevent possible injustice if courts were
required to make findings of fact that went back many years (see, inter alia, Mizzi v. Malta, no. 26111/02,
§ 83, ECHR 2006-I (extracts); Shofman v.
Russia, no. 74826/01, § 39, 24 November 2005; and, mutatis mutandis, Stubbings and Others
v. the United Kingdom, 22 October 1996, § 51, Reports of Judgments and
Decisions 1996-IV).
d. Whether a fair balance was struck
The Court points out that it has previously
accepted that the introduction of a time-limit for the institution of paternity
proceedings was justified by the desire to ensure legal certainty and finality
in family relations (see, for example, Mizzi v. Malta, cited above, §
88; and Rasmussen v. Denmark, 28 November 1984, § 41, Series A no. 87).
Accordingly, the existence of a limitation period per se is not incompatible with the
Convention. What the Court needs to ascertain in a given case is whether the
nature of the time-limit in question and/or the manner in which it is applied
is compatible with the Convention.
When deciding whether or not there has been
compliance with Article 8 of the Convention, the Court must determine whether,
on the facts of the case, a fair balance was struck by the State between the
competing rights and interests at stake. Apart from weighing the interests of
the individual vis-à-vis the
general interest of the community as a whole, a balancing exercise is also
required with regard to competing private interests. In this connection, it
should be observed that the expression “everyone” in Article 8 of the
Convention applies to both the child and the putative father. On the one hand,
people have a right to know their origins, that right being derived from a wide
interpretation of the scope of the notion of private life (see Odièvre v. France [GC], cited above, §
42). A person has a vital interest, protected by the Convention, in receiving
the information necessary to uncover the truth about an important aspect of his
or her personal identity and eliminate any uncertainty in this respect (see Mikulić v. Croatia, cited above, §§ 64 and 65).
On the other hand, a putative father’s interest in being protected from claims
concerning facts that go back many years cannot be denied. Finally, in addition
to that conflict of interest, other interests may come into play, such as those
of third parties, essentially the putative father’s family, and the general
interest of legal certainty.
While performing the “balancing of interests
test” in the examination of cases concerning limitations on the institution of
paternity claims, the Court has taken a number of factors into consideration.
For instance, the particular point in time when an applicant becomes aware of
the biological reality is pertinent. The Court will therefore examine whether
the circumstances substantiating a particular paternity claim are met before or
after the expiry of the applicable time-limit (see, for instance, the cases of Shofman v. Russia, cited above, §§ 40 and
43; and Mizzi v. Malta, cited
above, §§ 109-111, concerning disavowal of paternity claims). Furthermore, the
Court will examine whether or not an alternative means of redress exists in the
event that the proceedings in question are time-barred. This would include, for
example, the availability of effective domestic remedies to obtain the
re-opening of the time-limit (see, for example, Mizzi
v. Malta, cited above, § 111) or exceptions to the application of a
time-limit in situations where a person becomes aware of the biological reality
after the time-limit has expired (see Shofman
v. Russia, cited above, § 43).
The yardstick against which the above factors
are measured is whether a legal presumption has been allowed to prevail over
biological and social reality and if so whether, in the circumstances, this is
compatible, having regard to the margin of appreciation left to the State, with
the obligation to secure effective “respect” for private and family life,
taking into account the established facts and the wishes of those concerned
(see Kroon and Others
v. the Netherlands, cited above, § 40). For example, the Court has found
that rigid limitation periods or other obstacles to actions contesting
paternity that apply irrespective of a putative father’s awareness of the circumstances
casting doubt on his paternity, without allowing for any exceptions, violated
Article 8 of the Convention (see, Shofman
v. Russia, cited above, §§ 43-45; see also, mutatis mutandis,
Mizzi v. Malta, cited above, §§ 80
and 111-113; Paulík v. Slovakia,
no. 10699/05, §§ 45-47, ECHR 2006-XI (extracts); and Tavlı v. Turkey, no. 11449/02, §§
34-38, 9 November 2006).
In connection with the above, the Court further
reiterates that the choice of the means calculated to secure compliance with
Article 8 in the sphere of the relations of individuals between themselves is,
in principle, a matter that falls within the Contracting States’ margin of
appreciation. In this connection, there are different ways of ensuring “respect
for private life”, and the nature of the State’s obligation will depend on the
particular aspect of private life that is at issue (see Odièvre v. France [GC], cited above, § 46; and X and Y v.
the Netherlands, 26 March 1985, § 24, Series A no. 91).
Turning to the present case, the Court notes
that the applicant was 22 years old when the Paternity Act came into force
and 27 years old when the time-limit expired. However, the identity of the
applicant’s biological father become known to her only in December 2001 when
she found out about the child support agreement signed by her biological father
and the entry in the church register. On 6 February 2003, at the age of 48, the
applicant initiated paternity proceedings against her biological father in the
District Court. After the court proceedings, in 2007, the paternity of the
applicant’s biological father was confirmed by a DNA test. On 3 July 2008 the
applicant’s biological father died.
The Court notes that, when the paternity
proceedings were initiated in 2003, the five-year time-limit provided by the
national legislation was strictly applied. The national legislation did not
provide any alternative means of redress as the time-limit could not as such be
restored by seeking extraordinary remedies. Nor had the Supreme Court, at the
time, agreed to any exceptions to the application of the time-limit in
question, except in one exceptional case.
The Court notes that it has already had occasion
to observe that a significant number of States do not set a limitation period
for children to bring an action aimed at having paternity established and that
there is a tendency towards a greater protection of the right of the child to
have his paternal affiliation established (see Phinikaridou v. Cyprus, no.
23890/02, ECHR 2007-XIV (extracts)). The Court has also on several
occasions found that it has difficulties in accepting
inflexible limitation periods which do not provide any exceptions to the
application of that period (see, mutatis
mutandis, Shofman
v. Russia, cited above, § 43; Grönmark
v. Finland, no. 17038/04, § 55, 6
July 2010; and Backlund v. Finland, no. 36498/05, § 53, 6 July 2010). The main problem therefore is the absolute nature of the
time-limit rather than its dies a quo as such. As a result of this rigid time-limit, as upheld by
the Supreme Court, the applicant was deprived of the possibility of obtaining a
judicial determination of the paternity of her biological father. She was
deprived of this right even though she was in a situation where she had not had
any realistic opportunity to go to court during the limitation period due to the
fact that she, at the time, had no reason to suspect what her origins
were (see, mutatis
mutandis, Phinikaridou
v. Cyprus, cited above, § 62; and Turnalı v. Turkey, no.
4914/03, § 44, 7 April 2009).
The Court notes that, at the time of the
domestic proceedings, in the Supreme Court’s practice the general interest as
well as the competing rights and interests both of a putative father and his
family were accorded greater weight than a child’s right to have his origins
legally confirmed. In the present case, the national courts did not have any possibility
to balance the competing interests but only concluded that the applicant’s
claim was time-barred. Thus, the national courts could not consider at all
whether or not the general interest in protecting legal certainty of family
relationships or the interest of the father and his family outweighed the
applicant’s right to have an opportunity to seek a judicial determination of
paternity. The Court considers that such a straightforward restriction of the
applicant’s right to institute proceedings for the judicial determination of
paternity was not proportionate to the legitimate aim pursued. In this
connection the Court reiterates that the Convention is intended to guarantee
not rights that are theoretical or illusory but rights that are practical
and effective (see Airey v. Ireland, 9 October 1979, § 24,
Series A no. 32).
The Court notes, however, that the Supreme Court
has recently changed its previous line of case-law and considered that the
application of the five-year time-limit could lead to an apparent contradiction
with the Constitution in cases in which legal or factual reasons have prevented
the institution of paternity proceedings within the time-limit. Therefore, in
that case, the time-limit was left inapplicable on the strength of Article 106
of the Constitution (see KKO 2012:11).
Hence, even having regard to the margin of
appreciation left to the State, the Court considers that, at the time of the
facts of the present case, the application of a rigid time-limit for the
exercise of paternity proceedings and, in particular, the lack of any possibility
to balance the competing interests by the national courts, impaired the very
essence of the right to respect for one’s private life under Article 8 of the
Convention. In view of the above, the Court finds that a fair balance was not
struck in the present case between the different interests involved and,
therefore, that there has been a failure to secure the applicant’s right to
respect for her private life.
Accordingly, the Court finds that there has been
a violation of Article 8.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
The applicant also complained that the five-year
time-limit set in national legislation amounted to discrimination against her
in comparison to children born after the entry into force of the Paternity Act.
She referred to Article 14 of the Convention which reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Court observes that at the heart of this
part of the application is the impossibility for the applicant to have her
biological father’s paternity legally confirmed. The Court has examined this
issue above under Article 8 of the Convention and has found a violation of this
Article. In view of those findings it finds it unnecessary to examine the facts
of the case separately under Article 14 taken in conjunction with Article 8 of
the Convention.
III. REMAINDER OF THE APPLICATION
The applicant also complained under Article 13
of the Convention that she could not have the paternity issue examined by the
domestic courts.
Having regard to the case file, the Court finds
that the matter complained of does not disclose any appearance of a violation
of the applicant’s rights under the Convention. Accordingly, this part of the
application is manifestly ill-founded and must be rejected pursuant to Article
35 §§ 3 and 4 of the Convention.
IV. 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 20,000 euros (EUR) in
respect of pecuniary and EUR 10,000 for non-pecuniary damage.
The Government considered that there was no
causal link between the alleged violation of Articles 8 and/or 14 of the
Convention and any pecuniary damage suffered. In any event, the applicant’s assessment
of pecuniary damage was speculative and could not be accepted as such. Were the
Court to find a violation, the Government suggested that the question of
pecuniary damage be reserved. As to non-pecuniary damage, the Government
considered the applicant’s claim too high and that, in any event, compensation
for non-pecuniary damage should not exceed EUR 1,000 in total.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged (see Grönmark
v. Finland (just satisfaction), no. 17038/04, §§ 14-15, 12 July 2011; and Backlund
v. Finland (just satisfaction), no. 36498/05, §§ 14-15, 12 July 2011); it therefore
rejects this claim. On the other hand, it awards the applicant EUR 6,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 581.50 for the
costs and expenses incurred before the domestic courts and EUR 3,581.89 for
those incurred before the Court.
The Government considered that the total amount
of compensation for costs and expenses should not exceed EUR 3,500 (inclusive
of value-added tax).
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
information in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 4,000 (inclusive of value-added tax) covering
costs under all heads.
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
1. Declares unanimously the complaints under
Articles 8 and 14 of the Convention admissible and the remainder of the
application inadmissible;
2. Holds by six votes to one that there has
been a violation of Article 8 of the Convention;
3. Holds unanimously that it is not necessary
to examine separately the complaint under Article 14 of the Convention taken in
conjunction with Article 8;
4. Holds by six votes to one
(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:
(i) EUR 6,000 (six thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 4,000 (four thousand euros), plus any tax
that may be chargeable to her, in respect of costs and expenses;
(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;
5. Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 29 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Ineta
Ziemele
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Wojtyczek is annexed
to this judgment.
I.Z.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK
1. I respectfully disagree with the majority view
that there has been a violation of Article 8 of the Convention in the present
case.
2. In my view, the Finnish Government have
convincingly established that the applicant had doubts since she was a teenager
about the identity of her biological father. She was 22 years old when the
Paternity Act entered into force on 1 October 1976. At that time the church
register contained the correct information about the paternity of the
applicant. In such a situation, she could have easily checked the information
in the church register and initiated the appropriate proceedings to establish
paternity within the time-limit defined by Finnish law.
3. In my opinion, the Finnish courts have examined
the applicant’s case with due diligence. The judgment of the District Court of
18 June 2003 confirms that the applicant, since her teenage years, had doubts
about the identity of her biological father. In such a context, according to
the District Court, the applicant could have initiated the proceedings within
the statutory time-limit. I note further that the Court of Appeal upheld, on
the same grounds, the decision of the District Court.
4. Taking into account all relevant facts, I give
credence to the statement of the Finnish Government that “the applicant’s
allegation that she did not know that her stepfather was not her father thus
cannot be accepted” (observations of the Government of Finland, dated 17 September
2008, par. 38). Therefore, in the specific circumstances of the present case,
the interference with the applicant’s rights protected by Article 8 of the
Convention does not reach the threshold of a violation.
