Violation of the privacy of a man who claims to be the biological father of a child, after unsuccessful attempts to acknowledge his paternity
JUDGMENT
Koychev v. Bulgaria 15.10.2020 (app. no. 32495/15)
SUMMARY
In this case, the applicant (Mr Koychev) claimed to be the biological father of a child born outside
marriage, and complained of the fact that his actions to have his paternity recognised had been
rejected on the grounds that the child had been recognised by another man, the mother’s new
husband.
The Court found that Mr Koychev had unsuccessfully attempted to be recognised as the child’s
biological father, in particular by filing a notarised statement recognising paternity, by bringing
several sets of judicial proceedings and by contacting the prosecutor’s office and the social welfare
services. The Court held that although the domestic courts and authorities had, in their decisions, set
out certain reasons which, in their view, justified the refusal to allow Mr Koychev to establish his
paternity, the decision-making process by which those decisions had been reached had not
guaranteed the requisite protection of the applicant’s interests and had not allowed for a detailed
assessment of the facts or a weighing up of the various interests at stake. In spite of the broad
margin of appreciation enjoyed by the State in such matters, Mr Koychev’s right to respect for his
private life had thus not been upheld.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Stoycho Koychev, is a Bulgarian national who was born in 1975 and lives in Pomorie
(Bulgaria).
From 2003 onwards Mr Koychev cohabited with a woman (S.S.). She became pregnant in 2005, and
the couple separated in October of that year.
In 2006 S.S. gave birth to a son. According to Mr Koychev, it was understood between him and the
mother that the child was his son; he saw the child, who called him “daddy”, on a regular basis; for
several years, however, he took no steps to have his paternity recognised, on the grounds that themother objected.
In 2010 S.S. began a relationship with another man (G.G.), whom she married in 2012.
In 2013 Mr Koychev made a statement before a notary, recognising the child. The following month
G.G. applied for the full adoption of the child. Mr Koychev asked the court to suspend this adoption
procedure, on the grounds that he had already recognised the child. The civil registry services
informed the mother about the recognition of paternity filed by Mr Koychev. She lodged an
objection, which had the effect of making Mr Koychev’s recognition null and void. On the same date G.G. made a statement before a notary, recognising his paternity of the child. The mother did not object, and this recognition of paternity took effect.
In the meantime, Mr Koychev brought an action to establish paternity before the Sofia City Court; he
then learned that G.G. had recognised the child and had been entered as the father on the birth
certificate, since the mother had not lodged an objection. In consequence, Mr Koychev’s action was
declared inadmissible, as the child’s legal parent-child relationship was already established.
In 2014 Mr Koychev brought an action to have it established that G.G. was not the child’s biological
father. His action was declared inadmissible on the grounds that Mr Koychev did not have standing
to challenge the recognition of paternity made by another man; only the mother and the child had
standing to do so. This order was upheld on appeal. An appeal by Mr Koychev on points of law was
dismissed in February 2015.
In the meantime, Mr Koychev had asked the Sofia public prosecutor’s office and the local
department of social welfare to bring an action to have G.G.’s recognition of paternity set aside. The
prosecutor’s office refused to bring an action of this sort, since the actions lodged by Mr Koychev
were intended to achieve the same result. The department of social welfare considered that such a
step was possible only when it was necessary in the interests of a child, particularly if he or she was
in danger, which was not the case here.
In 2015 Mr Koychev brought a second set of proceedings to establish that G.G. was not the child’s
biological father, but the domestic courts held that the Family Code did not permit an alleged
biological father to challenge a recognition-of-paternity statement. On 11 April 2016 the Supreme
Court of Cassation held that the child was living with his mother and G.G., who was his legitimate
father, and that to challenge this legally established parent-child relationship would not be in the
child’s interests.
Relying on Article 8 (right to respect for private and family life), Mr Koychev maintained that
Bulgarian law did not allow a child’s biological father to challenge a decision recognising another
man as the child’s father and to attempt to have the child recognised as his own.
THE DECISION OF THE COURT…
Article 8 (right to respect for private and family life)
The Court considered that it had to examine whether the domestic authorities had struck a fair
balance between the various public and private interests at stake, and the quality of the
decision-making process which had led to their decisions.
With regard to the reasons put forward by the national authorities, the Court noted that the
reasoning adopted by the Supreme Court of Cassation and the department of social welfare in the
present case (namely the risk of disrupting the child’s emotional and familial balance, and
Mr Koychev’s lack of diligence in recognising his paternity), and the objective underlying the
domestic legislation (namely that of giving priority to legal parent-child relationships which
corresponded to social and familial reality) were, in principle, capable of justifying a limitation on the
possibility of establishing biological paternity.
However, the Court considered that other factors should have been taken into consideration in
order to take account of all the interests involved. Thus, in spite of Mr Koychev’s allegations that he
had maintained an on-going relationship with the child S., who, he submitted, called him “daddy”,
neither the department of social welfare nor the Supreme Court of Cassation had attempted to
examine the relationship that existed between Mr Koychev and the child, and the importance of this
relationship for these two persons. Equally, although the Supreme Court of Cassation had criticised
Mr Koychev for failing to recognise the child for about seven years, it had not considered it
necessary to assess the explanations provided by the applicant, to the effect that he had acted in
this way at the mother’s request, and not from a lack of interest in the child.
Furthermore, contrary to what the Supreme Court of Cassation seemed to consider in stating that
Mr Koychev himself had created the situation of which he complained, the fact that he had not
recognised the child for several years did not seem to affect his capacity to establish his paternity
under domestic law, since the possibility of recognising a child was not subject to any time-limit and
could be done at any point, provided that no other legal parent-child relationship had been
established. Mr Koychev had thus been able to take this step, validly, in April 2013; in view of the
objection lodged by the mother, he had subsequently brought an action for the establishment of
paternity, which would normally have made it possible to verify his biological paternity. Although his
action was not ultimately examined, this was because the child’s mother had immediately accepted
the subsequent recognition registered by G.G., about which Mr Koychev had not been informed and
which he had no opportunity of opposing under domestic law. However, the Supreme Court of
Cassation had not taken these circumstances into account in its decision of 11 April 2016.
With regard to the decision-making process followed in this case, the Court noted that, although
the department of social welfare seemed to have carried out a detailed examination of the facts,
notably by visiting the child’s home, before concluding that it was not in the latter’s interest to call
into question the legal parent-child relationship in respect of the mother’s husband, Mr Koychev had
been unable to participate in this procedure and had been unable to defend his interests. He had
been informed about the department’s refusal only through ordinary letters, and not through a
reasoned decision that could have been appealed against to the courts. Indeed, the applicable
legislation stated that, in deciding whether it should exercise its prerogative to challenge in court a
recognition of paternity, the department of social welfare had to have regard to the best interests of
the child, but it was not required to take into consideration the various interests at stake, especially
those of the alleged biological father.
Admittedly, Mr Koychev had then been able to bring an action before the civil courts, challenging the recognition, and had been able to present his case in adversarial proceedings. However, the domestic courts did not seem to have carried out a detailed examination of the situation by hearing the parties concerned, and particularly by questioning the child. More specifically, the Supreme
Court of Cassation, in its decision of 11 April 2016, had relied on the conclusions of the department
of social welfare, which were about two years old, had been drawn up in proceedings which did not
provide sufficient guarantees in respect of Mr Koychev’s interests and had not enabled the various
interests at stake to be weighed up.
Thus, Mr Koychev had attempted unsuccessfully to be recognised as the child’s biological father, in
particular by filing a notarised statement recognising his paternity, by bringing several sets of judicial proceedings and by contacting the prosecutor’s office and the social welfare services. Although the domestic courts and authorities had, in their decisions, provided certain reasons which, in their view, justified a refusal to allow the applicant to establish his paternity, the decision-making process by
which those decisions were reached did not seem to have guaranteed the requisite protection of
Mr Koychev’s interests and did not allow a detailed assessment of the facts and a weighing up of the
various interests at stake. In consequence, the Court considered that, in spite of the broad margin of
appreciation enjoyed by the State in such matters, Mr Koychev’s right to respect for his private life
had not been upheld. It followed that there had been a violation of Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Bulgaria was to pay Mr Koychev 6,000 euros (EUR) in respect of non-pecuniary
damage and EUR 2,000 in respect of costs and expenses.
