THIRD
SECTION
CASE OF TAVLI v.
(Application no. 11449/02)
This version was rectified on
under Rule 81 of the
Rules of Court
JUDGMENT
FINAL
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 Tavlı v.
The European Court of Human Rights (Third
Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger,
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 11449/02) against the
2. The applicant was
represented by Mr I. Baykan, a lawyer practising in Aksaray. In the instant case, the Turkish Government (“the
Government”) did not designate an Agent for the purposes of the proceedings
before the Court.
3. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in
1962 and lives in
5. On
6. On
7. On
8. On
9. On
10. On 10 April 1997, relying
on the findings of the DNA test, the applicant filed an application before the Aksaray First Instance Court in Civil Matters, requesting a
retrial in his action for rejection of paternity. The court ordered another DNA
testing.
11. In the meantime, on
12. The forensic DNA test
carried out in the Biology Department of the Ministry of Justice confirmed the
findings of the earlier test. The report of
13. On
14. On
15. On
16. The proceedings were
resumed before the
17. On
18. On
II. RELEVANT DOMESTIC LAW
19. Article 445 § 1 of the
Code of Civil Procedure, pertaining at the time of the proceedings, provided as
follows:
“As regards the final decisions, retrial may
be requested under the following circumstances:
After the judgment is rendered, a certificate
or a document is found, which could not have been acquired during the trial
because of force majeure or because
of the acts of the party in favour of which the decision was given.”
20. The relevant provisions
of the Civil Code (Law no. 4721, dated
Article 285
“The husband is the father of the child, born
in wedlock, or within three hundred days after the marriage has ended.”
Article 286
“In order to rebut the presumption of
paternity, an action to reject paternity may be brought by the husband. Such an
action shall be brought against the mother and the child. ...”
Article 287
“If the child is conceived in wedlock, the
plaintiff has to prove that he is not the father of the child.
A child is considered to be conceived in
wedlock if he or she is born at least one hundred and eight days after the
marriage, or at the latest three hundred days from the end of the marriage.”
Article 289
“The husband shall bring an action within one
year from the moment he is informed of the birth, when he realizes that he is
not the father of the baby or when he finds out that the mother had sexual
intercourse with another man, during the period of conceiving; in any event,
within five years from the birth.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE
8 OF THE CONVENTION
21. The applicant, relying in
substance on Article 8 of the Convention, complained that although he had the
scientific evidence to the effect that he is not the father of the child born
to his former wife, he could not have this issue determined by a court. 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.”
A. Admissibility
22. The Court notes that the
application is not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
23. The Government maintained
that the purpose of the legal presumption of paternity was to protect the
marriage, the family and the stability of society in general. They argued that
there was a need to ensure legal certainty in family relations and to protect
the interest of the child. They therefore contended that in the present case,
the domestic courts had protected the interest of the child and the family,
rather than the interest of the applicant, who supported his claim with a
biological fact.
24. The applicant contended
that the conclusion of the medical report of
1. Applicability of Article 8
25. The Court has already
examined cases in which a husband wished to institute proceedings to contest
the paternity of a child born in wedlock. In those cases the question was left
open whether the paternity proceedings aimed at the dissolution in law of
existing family ties concerned the applicant's “family life” because of the
finding that, in any event, the determination of the father's legal relations
with his putative child concerned his “private life” (Yıldırım v. Austria (dec.), no. 34308/96,
19 October 1999, and Rasmussen v. Denmark, judgment of 28 November
1984, Series A no. 87, p. 13, § 33).
26. In the instant case the
applicant sought, by means of judicial proceedings, to rebut the legal
presumption of his paternity on the basis of biological evidence. The purpose
of those proceedings was to determine his legal relationship with Ms A.'s daughter, who was registered as his own.
27. Accordingly, the facts of
the case fall within the ambit of Article 8 of the Convention.
2. General principles
28. 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, Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002‑I).
29. 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,
judgment of 26 May 1994, Series A no. 290, p.19, § 49, and Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A
no. 297‑C, p. 56, § 31).
30. 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 Mikulić, cited above, § 59, and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55). The Court will therefore examine whether the respondent State, in handling the applicant's paternity action, has complied with its positive obligations under Article 8 of the Convention.
3. Compliance with Article 8
31. The Court observes that
there is no dispute between the parties that the domestic court's decision to
reject the applicant's request to annul the decision of
32. The Court has previously
maintained that the fact that an applicant was prevented from disclaiming
paternity, because he did not discover that he might not be the father until
more than a year after he learnt of the registration of the birth, was not
proportionate to the legitimate aims pursued (Shofman v. Russia, no. 74826/01, § 45, 24 November
2005). In Mizzi v. Malta judgment it
found that the fact that the applicant was never allowed to contest his
paternity was not proportionate to the legitimate aims pursued (no. 26111/02, §
114, ECHR 2006‑... ). However these findings
were made in cases where the applicant did not suspect that the child was not
his and had only began to doubt his paternity after the statutory time-limit to
bring an action had already expired.
33. The situation in the present case was, however, different. It appears that the applicant had doubts about his paternity since the beginning and he therefore filed an action for rejection of paternity less than two months after S.'s birth, i.e. within the time-limit provided by Article 289 of the Code of Civil Procedure. However, he was unable to prove that he was not the father of S., as provided under Article 287 of the Code of Criminal Procedure. Therefore, relying on the fact that the child was born in wedlock, the court ruled that the applicant was presumed to be the father.
When DNA testing became more widespread, the applicant and S. carried out a test and
it was concluded that he could not be her father. Nevertheless, even in the
absence of any doubts as to the accuracy of the test, the court dismissed the
applicant's request to have a retrial. It held that in order to have a retrial,
the newly obtained evidence must be existent at the time of the proceedings and
it must be inaccessible due to force
majeure. It concluded, however, that scientific progress could not be
considered as force majeure, within
the meaning of that Article.
34. The Court observes that
the Government did not give any reason why it should be “necessary in a
democratic society”, to refuse the applicant's request to have a retrial,
irrespective of the technological difficulty to have DNA testing in 1982, when
the applicant first filed the action for rejection of paternity. Furthermore,
the Court is not convinced by the Government's argument that the domestic
courts have protected the interest of the child and the family, rather than the
applicant. In particular, it has not been shown how the interest of the child
was protected. The Court notes that just as the applicant has a legitimate
right to have at least the opportunity to deny paternity of a child who, according to
scientific evidence, was not his own, S. has also an interest in knowing the
identity of her biological father.
35. According to the Court's
case-law, the situation in which a legal presumption is allowed to prevail over
biological and social reality, without regard to both established facts and the
wishes of those concerned, is not compatible, even having regard to the margin
of appreciation left to the State, with the obligation to secure effective
“respect” for private and family life (see, mutatis
mutandis, Kroon,
cited above, § 40).
36. The Court considers that
the fact that the applicant was prevented from disclaiming paternity, because
scientific progress was not considered to be a condition for retrial provided
under Article 455 § 1 of the Code of Civil Procedure, was not proportionate to
the legitimate aims pursued. It follows that a fair balance has not been struck
between the general interest of the protection of legal certainty of family
relationships and the applicant's right to have the legal presumption of his
paternity reviewed in the light of the biological evidence (see, mutatis mutandis, Mizzi,
cited above, § 114, and Shofman,
cited above, § 45). The Court is of the opinion that
domestic courts should interpret the existing legislation in light of
scientific progress and the social repercussions that follow.
37. The Court concludes that,
despite the margin of appreciation afforded to the respondent State, it has
failed to secure to the applicant the respect for his private life, to which he
is entitled under the Convention.
38. There has therefore been
a violation of Article 8 of the Convention
II. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
39. 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.”
40. The applicant sought
reparation for the damage he had sustained but left the amount to the
discretion of the Court.
[1]41. The Court notes that
there is no evidence before it of any pecuniary damage. On the other hand, the
Court accepts that the applicant has suffered damage of a non-pecuniary nature
as a result of the State's failure to comply with its positive obligations
relating to the right to respect for his private life. The Court considers that
the non-pecuniary damage sustained by the applicant is not compensated for by
the finding of a violation of the Convention. Making an assessment on an
equitable basis, it awards the applicant EUR 5,000, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
42. The applicant made no
claim under this head.
C. Default interest
43. 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 UNANIMOUSLY
1. Declares the application
admissible;
2. Holds that there has been a
violation of Article 8 of the Convention;
3. Holds
(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, EUR
5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable, to be converted into new Turkish liras at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amount at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points.
Done in
English, and notified in writing on
Vincent Berger Boštjan
M. Zupančič
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Mr Zupančič is annexed to this judgment.
B.M.Z.
V.B.
SEPARATE OPINION OF JUDGE ZUPANČIČ
1. Below are the relevant provisions of the Turkish law
that apply where the European Court of Human Rights has found that there has
been a violation.
Code of Civil Procedure (Law no. 1086, dated
18.6.1927, amended by Law no. 4793, dated 23.1.2003):
Article 445
“As regards the final decisions, retrial may be requested under the following circumstances:
The determination by a final decision of the European Court of Human Rights that the judgment was in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Article 447
[...]
The time period for retrial, for the reason written in sub-paragraph 11 of the first paragraph of Article 445, is one year from the date of the finalisation of the decision of the European Court of Human Rights.”
2. Similar provisions are now the rule in most of the Contracting States.
3. The critical difference
between the applicable formulas in other Contracting States and the above
quoted provision is that the
First Presidency of the Court of Appeals is not required to order a trial de
novo.
4. Article 41 of the European Convention on Human Rights 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.” [Emphasis added.] It follows logically that in cases where the internal law of the State concerned does provide for full reparation – in the case at hand this would be the re-opening of the procedure – just satisfaction will consist in the Court's requiring recourse to the already existing and applicable internal law.
5. By the logic of Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000‑VIII) and the subsequent case-law, which further developed that doctrine, and especially where domestic law does provide for the non-mandatory possibility of a re-trial, it would be logical and in the interests of justice to make the requirement of the domestic re-opening of the procedure mandatory in the operative part of the judgment of the European Court of Human Rights. Failing that, at least the so called Gençel
formula ought to have been added to the reasoning of the Court (Gençel v. Turkey, no. 53431/99,
6. Instead, we say in paragraph 42
of the judgment: “the Court accepts that
the applicant has suffered damage of a non-pecuniary nature as a result of the
State's failure to comply with its positive obligations relating to the right
to respect for his private life. The Court considers that the non-pecuniary
damage sustained by the applicant is not compensated for by the finding of a
violation of the Convention. Making an assessment on an equitable basis, it
awards the applicant EUR 5,000, plus any tax that may be chargeable on that
amount.” While the absurdity of offering monetary compensation for
reversible procedural errors as a remedy that is completely extraneous to the
just resolution of the case, is not specific to this case, see for example my
separate opinion in Lucà v. Italy ([GC], no. 33354/96, ECHR 2001‑II), we have now evolved our
case-law to the point at which the language of Article 41 of the Convention
should be interpreted as above.
7. Another point that should be
made in this case is as follows. The constructive interpretation of the
outdated provision of the Code of Civil Procedure (Law No. 1086, dated 18.6.1927)
Article 445
“As regards the final decisions, retrial may
be requested under the following circumstances: 1. After
the judgment is rendered, a certificate or a document is found, which could not
have been acquired during the trial because of force majeure or because of the acts of the party in favour of
which the decision was given.
is clearly the business of the