ECHR judgment of 08 December 2016 in the case of L.D. and P.K. (L.D. and P.K.) v. Bulgaria (applications N 7949/11 and 45522/13).
In 2011 and 2013, the applicants were assisted in the preparation of applications. Subsequently, applications were consolidated and communicated to Bulgaria.
In the case, a complaint was successfully considered on the lack of possibility for a man claiming to be recognized as a biological father, to challenge his paternity with respect to a child who has already been recognized as another man. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants in each of the two cases claimed (with a probability of 99.99% according to DNA analysis in one case) that they are the biological fathers of children for whom paternity has already been recognized by another man. Domestic legislation did not allow the contestation of paternity by a person or recognition of a child as his own. Having confined themselves to pointing out the connection between the legal father and the child, the courts of the country denied the applicants the right to initiate legal proceedings.
One of the applicants, who suspected that there was trafficking in persons (the mother subsequently admitted that the clinic that had observed her pregnancy linked her to a couple who wanted to adopt a child), persuaded the prosecutor to institute proceedings in a competent court. Without giving reasons, the prosecutor terminated the proceedings, after which the applicant vainly tried to resume it.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. In 2012, the European Court conducted a comparative legal study showing that a large majority of States allow filing lawsuits to challenge paternity, but there is no consensus in this regard. In view of this observation and other relevant factors, the authorities of the respondent State had wide margin of appreciation. However, the examination of the present case compelled the Court to conclude that they went beyond these limits.
In the present case, with reference to various provisions of the Family Code, the domestic courts rejected the applicants' claims because of the lack of the right to apply to the court. The legislative ban on contesting registered paternity does not seem to allow exceptions to the Bulgarian legislation. It follows from the intention of the country's legislator to give priority to the already established legal relationships to ensure the stability of family relations, and not to resolve the claims of the alleged biological fathers.
In the Court's view, although, of course, it was reasonable on the part of the domestic authorities to take into account the fact that the child already had established relations between the parent and the child, other factors, such as the special circumstances of each case, and in particular the situation various participants in the proceedings: the child, mother, stepfather and the alleged biological father. Nevertheless, the domestic courts did not take into account these circumstances.
With regard to any other remedies available to applicants under Bulgarian law, the following reasons forced the Court to conclude that they were ineffective in the situations that occurred.
(a) Possibility of direct action in accordance with Article 8 of the Convention. Although the latest decision of the Supreme Court of Appeal appears to offer such an opportunity, the respondent Government did not give examples of such actions. The suit brought by the first applicant on this basis was in fact declared inadmissible for consideration.
(b) The possibility of involving the prosecutor or social protection services. The domestic legislation allowed the prosecutor's office or the territorial subdivision of the social service to initiate proceedings to challenge paternity, which could lead to a declaration that the recognition of paternity is invalid if it does not correspond to the genetic relationship (art. 66, para. 5 of the Family Code). Thus, a person who claims to be a biological father can put forward his demand in the above-mentioned bodies and ask them to initiate proceedings. This method, which, apparently, was used in practice, nevertheless, had the following limitations:
(i) neither the Family Code nor any other legislative act indicated the situation in which the authorities should take such an initiative. From the domestic case-law and the explanations provided by the Social Security Agency, it follows that such proceedings must be initiated if it is suspected that the confession was used to bypass adoption legislation or there is a threat to the child;
(ii) this claim was not directly available to the applicants, since its filing was at the discretion of those public authorities who could use it in a particular case;
(iii) there was no statutory obligation to hear such an applicant (although in practice this was done in the context of domestic research);
(iv) any refusal to institute proceedings or its subsequent termination could not be appealed in the courts. In both cases, the relevant body was not required to give reasons for its decision;
(v) in order to decide whether to initiate proceedings, the relevant authorities were not required to consider the various interests concerned. While they seem to have taken into account the best interests of the child, especially if there was a risk to his health or well-being, or enforced adoption legislation, it does not appear that these interests were compared to other interests, especially those of the biological father;
(vi) the purpose of this claim was in fact not the judicial determination of the paternity of the biological father, but only the abolition of the legal relationship between the parent and the child arising from recognition. Consequently, such proceedings appeared to be limited to exceptional situations regarding compliance with the law or a threat to the child, and not by the conflict over the establishment of paternity.
(c) The possibility of recognizing paternity before birth. The law did allow the recognition of the child's paternity before birth, from the moment of conception. However, this was not always possible, especially if the father was not informed of the pregnancy, and in any case this was not a common practice in Bulgaria.
Even in the case of early recognition, the mother had the opportunity to make it ineffective by filing an objection. If the mother agreed to the recognition of paternity by another man before the man who calls himself the father who made the first declaration of recognition could have sued paternity, the latter, even if he was the biological father, would be in the same situation as the applicants in the present case, without the possibility of proving his paternity.
Accordingly, the possibility of recognizing paternity before birth could not be considered an effective means of establishing paternity in the absence of the consent of the mother.
In such circumstances, the European Court can not blame the applicants for failing to issue a declaration of paternity before their birth. In both cases, the applicants actually took steps to establish their paternity as soon as they learned of the birth of children.
From the foregoing, it can be concluded that the applicants did not have an effective opportunity to challenge the legal relationship between the parent and the child established by their confession, or directly establish their paternity. Accordingly, their right to respect for their personal lives was violated.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded each applicant 6,000 euros (EUR) in respect of non-pecuniary damage. See also Rozanski v. Poland, judgment of 18 May 2006, application no. 55339/00.