ECHR decision of 16 June 2020 in the case "Boljevic v. Serbia" (aplication No. 47443/14).
In 2014, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Serbia.
the case successfully considered an aplication about the inability, due to the expiration of the statute of limitations, to conduct a dna test of the deceased person and to review the final court decision confirming the refusal of paternity, made without the applicant's knowledge and before it was possible to do such tests. The case involved a violation of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
Prior to the death of A., the applicant's mother's ex-husband, the latter believed that A. was his natural father. In 2011-2012, the applicant learned that in 1972, when he was three years old, a final court decision was issued, which satisfied A.'s claim to renounce paternity. The applicant unsuccessfully sought to have the case reopened in order to establish the identity of his natural father by means of a DNA test, which could not have been carried out in 1972. The Serbian courts refused the applicant, mainly referring to the expiration (in 1977) of the five-year period for the resumption of proceedings in the case and to the fact that in the course of the contested proceedings the applicant was represented by a legally appointed guardian.
Regarding compliance with article 8 of the Convention. The Court considered the present case from the point of view of the positive obligations of the Serbian authorities.
(a) Whether the refusal to resume proceedings in a previously closed civil case was in accordance with the law, and whether it had a legitimate purpose. There were no signs of arbitrariness in the reasoning behind the decisions of the courts of the respondent State. In addition, when it comes to the resumption of proceedings in a case that has already been completed by a final judgment, in the context of paternity or otherwise, the very nature of the dispute implies serious consequences, among other things, for legal certainty. the statute of limitations in paternity cases, in particular, has a legitimate purpose: it is intended to protect alleged fathers from long-standing claims, thereby preventing the unfairness that may arise if the courts have to draw conclusions about circumstances that occurred many years before. Thus, the courts of Serbia could no doubt lawfully refuse to resume proceedings on other grounds not related to the statute of limitations, if they were duly found to be unconfirmed.
In view of the above, the refusal to resume proceedings in a civil case completed in the 1970s was in accordance with the law and had the legitimate aim of ensuring legal certainty and protecting the rights of others.
(b) Whether a fair balance has been struck. First, the applicant sought to establish the identity of his natural father, which is recognized as a vital interest that falls under the protection of the Convention and does not disappear with age. Secondly, the applicant did not have the opportunity to obtain the restoration of the time limit for applying for the resumption of proceedings in the case. The law of the respondent State did not allow taking into account the specifics of the applicant's situation or comparing competing interests. Third, the personal life of the deceased person whose DNA test was to be carried out could not be negatively affected by the relevant requirement. Fourth, there was no indication in the case file of the deceased's family's position on the DNA test. In any event, the applicant's complaint concerned the denial of the possibility of proving that A. was indeed his natural father. In addition, as far as he knew, this fact was not disputed until 2011-2012. Even in the birth certificates issued much later, in 2014 and 2019, A. was still listed as the applicant's father. finally, the court could not accept the serbian authorities ' argument that the applicant could have applied to the court again in civil proceedings.
Consequently, the preservation of legal certainty was not in itself sufficient to deprive the applicant of the right to establish paternity. The Serbian authorities acknowledged that the courts of the respondent State had failed to consider the substantive question of whether A. was the applicant's natural father, due to the existing time constraints for the resumption of the proceedings. Taking into account the circumstances of the case and the applicant's prevailing interest, and despite the limits of discretion granted to the authorities of the respondent State in the present context, the authorities did not ensure that his right to respect for his private life was respected (see, for comparison, mutatis mutandis, the Judgment of the European Court of Justice in A. L. v. Poland of 18 February 2014, Complaint No. 28609/08, and the Judgment of the European Court of Justice in R. L. and Others v. Denmark (R. L. and Others v. Denmark). Denmark) of 17 March 2017, complaint No. 52629/11, in which the conclusions that there was no violation of article 8 of the Convention were largely based on an analysis of what were the best interests of the children who were not the applicants in the case).
In respect of complaints concerning sensitive and important matters, such as the one under consideration in the present case, various opposing interests are involved, which must be compared with each other. Depending on the specific circumstances, this, in turn, may lead the European Court to different conclusions in such cases, provided that they comply with general principles.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. the court considered that the finding of a violation of the convention was in itself sufficient just compensation for non-pecuniary damage.