The refusal to revoke the decision regardng the recognition of paternity, which was later proved by DNA that he was not the biological father and despite the consent of him and the child, violated the right to family life.

JUDGMENT

Bocu v. Romania 30.06.2020 (appl. no. 58240/14)

see here  

SUMMARY

Recognition of paternity. Revocation of paternity recognition decision due to the existence of new strong opposing data.

The applicant was recognized by an irrevocable court decision as the father of B.AM., with a simple blood test and speculation of their biological connection. When B.AM. as an adult, he agreed to conduct a genetic DNA test, which ruled out the applicant’s father for sure. The domestic courts rejected his request for a retrial.

The Court considers that when a breach of Article 8 of the Convention on the Rights regarding paternity is found, the existence of a sufficient legal means to allow the person concerned to seek redress is the only appropriate solution to end the breach.

In the present case, the ECtHR ruled that rejecting the request to reopen the process of recognizing the paternity of a child born out of wedlock, when all interested parties appeared to be in favor of establishing the biological truth, on the basis of scientific evidence, not available. research on paternity in the normal procedure, the national authorities have not achieved a fair balance between the interests involved.

The Court found a violation of family life (Article 8 of the ECHR) and awarded € 5,000 for non-pecuniary damage.

PRINCIPAL FACTS

The applicant, Mr Octaviean Bocu, is a Romanian national who was born in 1947 and lives in Braşov.
The case concerned the lack of a review of a final judgment declaring him the father of B.A.M., even
though he had, with the latter’s agreement, secured scientific proof that he was not his biological
father.

On 2 February 1972 the mother of B.A.M., who had been born on 18 September 1971, instituted
court proceedings to establish Mr Bocu’s paternity. By a judgment of 6 November 1972, Mr Bocu
was declared to be the child’s father. That judgment was based on witness statements and forensic
blood grouping. This judgment was confirmed by a final judgment on March 23, 1973.

In 2012 Mr Bocu brought a court action to annul the declaration of paternity. He requested the court
to order a DNA analysis. The court dismissed his action and Mr Bocu appealed. By a judgment of
3 December 2012 the County Court dismissed the appeal and ruled that an action to annul the
declaration of paternity could only be filed by a husband of a woman who had given birth to a child
within wedlock.

In 2013 Mr Bocu obtained the consent of B.A.M., who had since come of age, to out-of-court
forensic testing on both of them in order to determine whether or not he was the biological father.
Following genetic testing, an expert assessment established that Mr Bocu was not B.A.M.’s biological
father.

On 4 June 2013 Mr Bocu applied to the County Court for a review of the 23 March 1973 judgment.
The court declared the application for a review inadmissible on the grounds that it did not satisfy the
admissibility conditions laid down in Article 322 of the former Code of Civil Procedure.

Relying on Article 8 (right to private and family life), the applicant complained that he had not been
able to obtain judicial recognition of the fact that he was not B.A.M.’s father, despite the fact that
the expert assessment conducted with the consent of B.A.M., on the latter’s majority, had ruled out
his paternity.

THE DECISION OF THE COURT…

The Court notes first that it has already found violations of Article 8 of the Convention in cases where the applicants had no opportunity to challenge, in the light of new biological evidence, the declaration of their paternity by a final court decision The present case therefore follows well-established case-law of the Court.

The Court observed that what it had sanctioned from the standpoint of Article 8 of the Convention in judgments concerning legal questions similar to those raised in the present case was the impossibility for the persons concerned to challenge, on the basis of new biological evidence, judicial declarations of paternity concerning children who have grown up in the meantime, in cases where the biological reality did not correspond to social reality. It considers that when a violation of Article 8 of the Convention is found for this reason, the existence of a legal avenue capable of enabling the person concerned to obtain the reopening of the internal proceedings constitutes in principle a solution appropriate, or often the most appropriate, to end the violation and erase its effects.

In this context, the Court observes that Article 509 § 1 (10) of the Code of Civil Procedure provides for the possibility of obtaining the review of a final decision when the Court has found a violation of fundamental rights or freedoms due to a decision justice and that the consequences of this violation are serious and persistent. There is no mention in this text of a possibility of obtaining the reopening of civil proceedings on the basis of a decision to strike out a case, whether on the basis of a settlement amicable agreement reached by the parties or that of a unilateral declaration. The Government have not produced examples of decisions adopted by national courts which would be capable of demonstrating that they sometimes open internal civil proceedings on the basis of decisions by which the Court struck a case out of the list. Finally, the Court noted that there was no mention in the unilateral declaration presented by the Government of an undertaking on its part allowing the reopening of the proceedings, if the applicant so wished.

In the present case, the Court noted that in 1972, shortly after the birth of B.A.M., his mother brought proceedings against the applicant in an action to seek paternity. This action was upheld on the basis of testimony and a forensic examination of blood groups which indicated that the applicant could be the biological father of the child.

Subsequently, following an extrajudicial forensic expertise carried out with the agreement of B.A.M. stating that he was excluded from being his biological father, the applicant asked for the review of the judgment of 23 March 1973 based essentially on Article 322 § 5 of the Code of Civil Procedure which provides for the possibility of reopening ” a procedure when the impossibility of presenting documents during the initial procedure was due to an event foreign to the will of the parties. The applicant’s claim was declared inadmissible by the national courts on the ground that the condition that the said documents should already exist at the time of the initial proceedings was not fulfilled.

While taking into account the observations formulated by the Government, the Court sees no reason to depart in the present case from the conclusion it reached in Ostace. It considers that by rejecting the request to reopen the procedure to seek paternity of the child born out of wedlock, when all the interested parties seemed to be in favor of establishing the biological truth concerning the parentage of B.A.M. Having become of legal age, on the basis of scientific evidence, inaccessible at the time of the paternity search action, the national authorities have not struck a fair balance between the interests involved.

Consequently, there has been a violation of Article 8 of the Convention in the present case.

 

 


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