The ECHR ruling of October 13, 2020 in the case of Koychev v. Bulgaria" (aplication No. 32495/15).
In 2015, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Bulgaria.
In the case, an aplication was successfully considered against the rejection of the claim of the biological father to appeal against paternity because of the need to respect the interests of the child, who was recognized by the husband of the biological mother of the child, and in the absence of sufficient guarantees for the biological father of the child. The case involved a violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In 2006, the applicant's former cohabitant gave birth to a child. In 2010, she began dating another man, whom she later married. In 2013, the applicant recognized the child, but the child's mother objected to such recognition. The husband of the child's mother recognized the child, and she agreed with this confession. The applicant unsuccessfully tried to appeal against this legal paternity, consistently appealing to the relevant Bulgarian authorities, the prosecutor's Office and the Bulgarian courts.
Regarding compliance with article 8 of the Convention. Bulgarian legislation did not provide for the possibility for a man claiming to be the biological father of a child whose paternity is established by a document on the recognition of legal paternity to directly appeal against such legal recognition or to seek recognition of his biological paternity.
The Bulgarian authorities erroneously claimed that the applicant could have obtained the termination of the procedure for registering the recognition of the child as the husband of the child's mother if he had notified the civil registration authorities in due time of his intention to file a paternity claim. Firstly, the applicant was not notified of the actions of the child's mother's husband. Secondly, the Bulgarian legislation did not provide for any special mechanism by which it would be possible to prevent an entry on the recognition of paternity in the child's birth certificate on the grounds that a person who had previously made a similar declaration of recognition filed a claim for establishing paternity. In addition, the Bulgarian legislation did not define any deadlines for such actions.
In contrast to the case "L. D. and P. K. v. Bulgaria" (L. D. and P. K. v. Bulgaria) (Judgment of the European Court of 8 December 2016, complaints No. 7949/11 and 45522/13), in the present case, the Bulgarian courts, refusing to consider the applicant's claim for establishing paternity, not only referred to the provisions of Bulgarian legislation, but also indicated several grounds for concluding that this approach would not meet the interests of the child, namely: (i) the risk of destruction of the emotional balance of the child and his ideas about the family, (ii) the lack of urgent action on the part of the applicant, since he waited seven years before recognizing his paternity, ((iii) Purpose, the task facing the Bulgarian legislation is to give priority to legalized parent-child relations that meet the social and family reality.
The European Court agreed that the above-mentioned grounds could in principle justify the restriction of the possibility of establishing biological paternity. However, other factors had to be taken into account.
The present case did not examine the relationship between the applicant and the child and their significance for these persons. As for the fact that the applicant did not recognize his child for seven years, the applicant's explanation that he did so at the request of the child's mother, and not because of a lack of interest in the child, was also not verified. Moreover, the Bulgarian legislation did not set any deadlines for the recognition of a child: such recognition could be carried out at any time if the child is not already recognized within the framework of other parent-child relationships. Although the actions taken by the applicant to recognize the child were unsuccessful, this was because the child's mother, after she protested against the recognition of her child by the applicant, immediately after that agreed to the recognition of her child by a third person - her husband. Nevertheless, the applicant was not notified of this and had no opportunity to appeal against this action.
The European Court also noted other procedural violations committed. First of all, with regard to the Department of Social Security: although the visit to the house where the child lived did allow for a thorough assessment of the situation, nevertheless, the fact was that the applicant could not take part in this procedure and protect his interests. In addition, the refusal of the Social Security Department was sent to the applicant by regular mail, and it was not a reasoned decision that the applicant could appeal to the court. In conclusion, the Social Security Department was not obliged to take into account all competing interests in the case, especially the alleged biological father.
As for the civil courts, the applicant was provided with an adversarial trial, but no detailed investigation of the circumstances of the case was carried out: the courts did not hear all the interested parties, especially the child, and the Supreme Court of Cassation of Bulgaria referred to the conclusions of the Department of Social Security, which, in addition to the above shortcomings, were about two years old.
Despite the broad freedom granted to the Bulgarian authorities, the Court concluded that the decision-making process in the present case was not accompanied by adequate guarantees, that a detailed study of the factual circumstances of the case was not carried out and the various interests affected in the case were not balanced.
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 European Court awarded the applicant 6,000 euros in compensation for non-pecuniary damage.