LAAKSO v. FINLAND - 7361/05 - HEJUD [2013] ECHR 44 (15 January 2013)

JUDGMENT STRASBOURG 15 January 2013 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 Laakso 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. 7361/05) 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, Mr Tapio Olavi Laakso (“the applicant”), on 28 February 2005. The applicant was represented by Mr Jaakko Tuutti, a lawyer practising in Tampere. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The applicant alleged, in particular, that the time-limit for establishing the paternity of children born before the entry into force of the new Paternity Act on 1 October 1976 gave rise to a violation of his rights under Articles 8 and 14 as he could not have paternity established, while children born after 1 October 1976 did not face any such restrictions. On 24 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 1959 and lives in Tampere. The applicant was born out of wedlock. In 1961 the District Court, after having heard witnesses on the relationship between the applicant’s mother and K. R., ordered K. R. to pay child support to the applicant. K. R. had also told the applicant and his mother that he was in fact the father of the applicant. 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. K. R. died in August 1999. Subsequently, the applicant found out that K. R. had not been legally registered as his father. On 15 May 2003 the applicant initiated paternity proceedings against the heirs of K. R. in the Helsinki District Court ( käräjäoikeus, tingsrätten ). He requested the court to confirm that K. R. was his father. He referred, inter alia , to the Convention. On 22 August 2003 the District Court dismissed the applicant’s claim. It found that as the applicant was born before the entry into force of the Paternity Act, he should have brought the claim within the statutory five-year time-limit and at the latest on 1 October 1981. Making a reference to the Convention did not change the fact that the applicant had lost his right to initiate the proceedings on 1 October 1981. His claim was therefore time-barred. On 27 August 2003 the applicant appealed to the Helsinki Court of Appeal ( hovioikeus, hovrätten ) claiming, inter alia , that the District Court could not just ignore the Convention as it was to be given priority vis-à-vis the national legislation. Moreover, nowadays it was possible to obtain conclusive evidence, through DNA tests, to establish paternity. Section 7, subsection 2, of the Implementing Act of the Paternity Act had in fact become obsolete, a provision that had lost its acceptability and applicability. On 19 May 2004 the Court of Appeal upheld the District Court’s decision. It found, in addition to the District Court’s reasoning, that no legal impediment had prevented the applicant from initiating the proceedings within the five-year time-limit and that this time-limit was unconditional. On 27 May 2004 the applicant appealed to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds for appeal already presented before the Court of Appeal. On 4 February 2005 the Supreme Court refused the applicant leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitutional and other 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 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 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 his right to respect for family life had been violated. 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 maintained that, as the District Court had found it established that K. R. was the applicant’s father and had confirmed his liability for maintenance in 1961, the applicant had validly believed that paternity had been established. The applicant’s reasons for not taking steps to initiate paternity proceedings within the statutory time-limit had been connected to the legal decision to grant child support. K. R. had acknowledged his paternity both to the applicant and his mother. As K. R. had already died, the interests of his heirs could only be limited to the inheritance, namely, to interests which could not be given primacy vis-à-vis interests relating to personal identity. The Government accepted that the impossibility for the applicant to have his father’s paternity established after the expiry of the five-year time-limit had constituted an interference with his 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 17 years old when the Paternity Act entered into force in 1976 and that he had turned 18 on 21 January 1977. 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 child welfare supervisor could take steps in order to have paternity established only if the child was under 15 years of age and the mother or the legal guardian had expressed a wish that the child welfare supervisor attend to the investigation of paternity. The Government pointed out that the applicant would have been able to initiate the proceedings as from 1 October 1976 as he was already 15 years old at the time. The applicant had not given any reasons for not having instituted paternity proceedings during the statutory time-limit but twenty-two years later, in May 2003. Even though he had received child support from his putative father, this did not mean that the latter’s paternity had been established. The applicant had known, or at least had had grounds for assuming, who his father was. The reform of family legislation, including the paternity laws, had been one of the main legal reforms in the 1970s and it had been widely publicised. The applicant, being an adult for almost all of the five-year period, must have been aware of the law reform and the new possibility to have his 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 his legal relationship with the person he claimed was his 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 Mikuli ć 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 his 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, he complained that the time-limit imposed by the Implementing Act of the Paternity Act prevented him 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 May 2003 as he claimed that he had not known that paternity had not been legally established until August 1999 when K. R. had died. His 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 old 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 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 him in comparison with children born after the entry into force of the Paternity Act. He 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. 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 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 17 years old when the Paternity Act came into force and 22 years old when the time-limit expired. The identity of the applicant’s biological father, K. R., was known to the applicant: K. R. had already in 1961 been ordered by the District Court to pay child support to the applicant and he had also told the applicant and his mother that he was the applicant’s father. However, the applicant found out only in 1999, after K. R.’s death, that the latter had not been legally registered as his father. On 15 May 2003, at the age of 44, the applicant initiated paternity proceedings against the heirs of K. R. in the District Court. 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. In view of the fact that in the present case the biological father had already died, judicial proceedings before the national courts were the only avenue by which the applicant could have legally established the legal status of his biological father. 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 that K. R. was his father. He was deprived of this right even though he was in a situation where he had not had any realistic opportunity to go to court during the limitation period due to his incorrect perception that paternity had already been established when K. R. had been ordered by the District Court to pay child support to him (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 his private life. 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 his 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 6 of the Convention that he 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 100,000 euros (EUR) in respect of non-pecuniary damage. The Government considered the applicant’s claim too high as to quantum. Were the Court to find a violation of Articles 8 and/or 14 of the Convention, the compensation for non-pecuniary damage should not exceed the amount of EUR 1,000 in total. The Court awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses The applicant also claimed EUR 3,680.96 for the costs and expenses incurred before the domestic courts and EUR 2,196 for those incurred before the Court. The Government considered, as concerned the costs and expenses incurred before the domestic courts, that the hourly rate used was somewhat high. As to the costs and expenses incurred before the Court, the Government considered the applicant’s claim for costs and expenses reasonable. In any event, the total amount of compensation for costs and expenses should not exceed EUR 4,500 (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 5,000 (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 five votes to two 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 five votes to two (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 5,000 (five thousand euros), plus any tax that may be chargeable to him, 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 15 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 following separate opinions are annexed to this judgment: (a) partly dissenting opinion of Judge De Gaetano; (b) partly dissenting opinion of Judge Wojtyczek. I. Z. T. L. E. PARTLY DISSENTING OPINION OF JUDGE DE GAETANO 1. I regret that I cannot agree with the majority that in this case there was a violation of Article 8. In my view the facts disclose at best only ignorance of the law on the part of the applicant, and at worst carelessness on his part which, given the publicity leading up to and subsequent to the enactment of the Paternity Act, can only be described as carelessness of a very high degree. 2. This was not the typical case where up to the time of the expiry of the period within which the action for filiation could be brought, the applicant was unaware of who was his or her biological father; or merely suspected that a particular person was or could be his or her biological father; or was otherwise impeded from bringing the action by an “unavoidable” obstacle, physical or otherwise. In the instant case the applicant positively knew that K. R. was his father, and this well before the law came into force. The only argument brought by the applicant is that he was not aware that, in spite of K. R. paying child support as ordered by a court, the said K. R. had not been legally registered as his father. In other words he was under the mistaken belief that as the domestic court had confirmed K. R.’s liability for the payment of child support, paternity had been legally established. This, to my mind, is a mistake of law, that is a mistake as to the legal consequences of the court’s decision on child support. This mistake was in any case easily avoidable if only the applicant had bothered to consult a lawyer. As the Helsinki Court of Appeal held (§ 12) no legal impediment had prevented the applicant from initiating proceedings within the five-year time-limit. In other words the applicant had only himself to blame - imputet sibi - for the situation in which he found himself after the expiry of the five-year transitional period. 3. As this Court has had occasion to state, “...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” ( Phinikaridou v. Cyprus , no. 23890/02, § 52, 20 December 2007). The instant case is certainly not one where a legal presumption has been allowed to prevail in unreasonable circumstances over biological and social reality - the period of limitation was reasonable in length and pursued a legitimate aim, and the applicant was aware of the biological and social reality. Time-limits, which in themselves are designed to secure the proper administration of justice in compliance with the principle of legal certainty ( Mizzi v. Malta , no. 26111/02, § 83, ECHR 2006-I (extracts)), cannot be circumvented by the spurious argument that one was not aware of what the law said or provided, or was not aware of the legal effects or consequences of certain decisions (like the “incorrect perception” - see § 52 - as to the court order to pay child support). Even in Backlund v. Finland (no. 36498/05 , 6 July 2010 ) the Court was quick to dismiss “the applicant’s alleged ignorance of the statutory time-limit” (see § 53 of that judgment), although it then went on (wrongly, in my view) to find a violation of Article 8. 4. In the instant case, while I am prepared to subscribe to the judgment (on the Article 8 issue) as far as § 49, I am unable to agree with the reasoning and conclusion in §§ 50 to 56. In particular neither the fact that many States do not set a time-limit for an action for filiation (§ 52), nor the fact that the Finnish courts did not have the possibility to “balance the competing interests” (§§ 53 and 55), are relevant to the issue at hand. Had the Finnish courts carried out this balancing exercise, they should nonetheless have dismissed the applicant’s request because a “fair balance was struck” in this case - the applicant had only himself to blame for ignoring the law. 5. This judgment could be read as not only condoning ignorance of the law and carelessness, but also rewarding it with EUR 6,000. 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. At the same time, I fully share the concerns expressed by Judge De Gaetano and support the principal arguments developed in his partly dissenting opinion. 2. In the present case, the applicant knew the identity of his biological father. The Helsinki Court of Appeal has established that no legal impediment prevented the applicant from initiating proceedings within the statutory time-limit imposed by Finnish legislation. This time-limit, as applied in the circumstances of the present case, did not deprive the applicant of the possibility of fully exercising his rights protected under the Convention. In this context, I agree with Judge De Gaetano’s view that the applicant has only himself to blame for the situation in which he found himself after the expiry of the five-year transitional period to bring an action for filiation. However, I am not certain whether we can qualify the situation of the applicant as a mistake of law (a mistake as to the content of legislation) or rather as a mistake as to the content of the official registers. This doubt is, nonetheless, irrelevant for the solution of the case. 3. The European legal culture widely recognises the principle vigilantibus leges sunt scriptae . Any legal system is based on the assumption that its addressees should show due diligence as to the official registration or recognition of the existing social and legal realities. This pertains also to family law. The requirement of due diligence is the necessary correlate of the legal recognition of individual freedom and personal autonomy. In other words, freedom and diligence are two sides of the same coin. Legal certainty in family relationships is a prerequisite for the protection of the right to respect for private and family life enshrined in Article 8 of the Convention. The assumption that every adult is responsible for ensuring that the official registers reflect his family status may not be seen, in principle, as an interference with the rights protected by Article 8 of the Convention. 4. I have doubts about the method of interpretation of the Convention underlying the present judgment. I am neither convinced by the argument referring to the content of legislation in the majority of the High Contracting Parties nor by the reference to an existing tendency among the High Contracting Parties (paragraph 52). Firstly, these arguments indirectly confirm that there is no unanimity among the High Contracting Parties on the issue. Secondly, it has not been ascertained that the tendencies referred to really constitute a practice in the application of the Convention which would be relevant for the purposes of its interpretation under the applicable principles of international law pertaining to treaty interpretation. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII