Refusal to reopen paternity proceedings dating back 40 years breached the private life of the son

JUDGMENT

Boljević v. Serbia 16.06.2020 (no. 47443/14)

see here 

SUMMARY

The case concerned the domestic courts’ refusal to reopen paternity proceedings dating to the
1970s because they were time-barred. The applicant alleged that that decision had denied him the
opportunity to prove his origins via modern DNA testing methods.

The Court found that, although time-limits in paternity-related proceedings were intended to
preserve legal certainty, that had not been a sufficient enough reason to deprive the applicant of the
right to discover the truth about an important aspect of his personal identity, without weighing up
the interests at stake in his case.

Indeed, the domestic law on deadlines for reopening proceedings had not allowed the authorities to
carry out such a balancing exercise, taking into account the very specific circumstances of the
applicant’s case, namely that he had only found out about the paternity proceedings in 2011/12
when the person who he thought was his biological father had died and inheritance proceedings
were instituted.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Peđa Boljević, is a Serbian national who was born in 1969 and lives in Ečka (Serbia).

Up until 2011/12, the applicant considered it undisputed that a certain Mr A was his biological
father.

However, during the inheritance proceedings following Mr A’s death, the applicant became aware of
a final judgment dating to the 1970s which concluded that he could not have been his biological
father. The courts had essentially reached that conclusion on the basis of witness testimony as to
when the applicant’s mother and Mr A had met.

In January 2012 the applicant and his mother requested the reopening of the paternity proceedings.
They argued in particular that the applicant had only just found out about the 1970 judgments, and
that, while DNA testing had not been possible at that time, such a test could now be carried out on
the basis of a court order. Moreover, Mr A had always been recognised as the applicant’s father in
the official register of births.

The courts at first and second instance refused the request, finding that it was time-barred. In
particular, requests for reopening on the basis of new facts or evidence had to be lodged within five
years of the final decision in the case, meaning that the applicant would have had to lodge his
request in 1977. The Court of Appeal also added that the applicant’s argument that he had only recently been informed of the 1970 judgments was irrelevant since his rights had been properly secured in the original proceedings through a legal guardian.

The Constitutional Court also ruled against the applicant in 2014.

THE DECISION OF THE COURT…

The Court found that the Serbian judicial authorities’ refusal to reopen the civil proceedings
concluded in the 1970s had been in accordance with the law. It could see no evidence of
arbitrariness in the reasoning of the first and second instance courts.

Furthermore, that refusal had pursued the legitimate aims of ensuring legal certainty and protecting
the rights of others. In particular, time-limits in paternity-related proceedings were intended to
protect the interests of purported fathers from stale claims, and to prevent possible injustice if
courts were required to make findings of fact that went back many years.

However, the preservation of legal certainty was not in itself a sufficient ground for depriving the
applicant of the right to discover the truth about his origins, bearing in mind the specific
circumstances of his case and what was at stake for him, namely finding out about an important
aspect of his personal identity.

Indeed, as acknowledged by the Government, there had been no legal way for the applicant to have
the deadline for his request to reopen the proceedings extended. No balancing of the relevant
interests, taking into account his specific situation, could therefore be carried out.

The Court noted in particular that, as far as the applicant had known, Mr A was his biological father
until the inheritance proceedings in 2011/12. Moreover, Mr A had still been identified as his father
in birth certificates issued in 2014 and 2019.

In any event, the private life of a deceased person, in this case Mr A, could not be adversely affected
by a request for a DNA sample, and there was no indication in the case file as to what his family’s
reaction would have been to a DNA test.

Regardless of the leeway (“margin of appreciation”) the Court gave to States to decide on such
sensitive matters as raised in the applicant’s case, it therefore found that the Serbian authorities had
not secured to him respect for his private life as guaranteed under the Convention.

There had accordingly, in the very specific circumstances of the present case, been a violation of Article 8 of the Convention.

Just satisfaction (Article 41)

The Court held that the finding of a violation was in itself sufficient just satisfaction for any nonpecuniary
damage sustained by the applicant.


ECHRCaseLaw

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