third section decision as to the admissibility of

CONSEIL
DE L’EUROPE
COUNCIL
OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34308/96
by Ibrahim YILDIRIM
against Austria
The European Court of Human Rights (Third Section) sitting on 19 October 1999 as a
Chamber composed of
Sir Nicolas Bratza, President,
Mr J.-P. Costa,
Mr L. Loucaides,
Mr P. Kūris,
Mrs F. Tulkens
Mr W. Fuhrmann,
Mr K. Traja, judges,
and
Mr Erik Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms;
Having regard to the application introduced on 11 November 1996 by Ibrahim
Yildirim against Austria and registered on 19 December 1996 under file no. 34308/96;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
34308/96
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THE FACTS
The applicant is a Turkish national, born in 1956 and living in Eferding in Austria. He
is represented before the Court by Mr Hans Leitner, a lawyer practising in Wels.
A.
Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 17 July 1989 the applicant married an Austrian national before the competent
authorities in Turkey. At the time of their marriage his wife was already pregnant and the
applicant knew that he was not the father of the future child. After their marriage, the
applicant and his wife moved to Austria. They separated in September 1989.
On 15 January 1990 the applicant’s wife gave birth to a daughter. As the applicant
and his wife were still married, the child was deemed to be their legitimate daughter in
accordance with section 138 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) and
was entered in the birth register as such. The applicant submits that he was not aware of this
legal presumption or the fact that the husband can only bring an action to contest the
legitimacy of a child born in wedlock within a one-year time-limit after its birth, while after
that only the Public Prosecutor can do so. Moreover, he claims that his wife had assured him
that the name of the natural father had been entered in the birth register.
In 1991 the applicant and his wife filed a petition for divorce by consent with the
Wels District Court. The applicant submits that it was only in the course of the divorce
proceedings that he became aware of the fact that the child was considered to be his daughter.
By then the one-year time-limit for contesting the child’s legitimacy had already expired.
On 4 November 1991 the applicant, referring to section 158 of the Civil Code,
requested the Wels Public Prosecutor’s Office (Staatsanwaltschaft) to institute proceedings to
contest the legitimacy of the child.
On 11 November 1991 the Public Prosecutor’s Office heard the applicant’s wife. She
stated that she had not had any sexual relationship with the applicant before their marriage
and that Mr. T.M. was the child’s father. T.M. was questioned by a German court under
letters rogatory. He conceded having had a sexual relationship with the applicant’s wife
before her marriage, but claimed that he was not the only one.
On 21 January 1993 the Wels Public Prosecutor’s Office informed the applicant that it
did not see any reason to bring an action to contest the legitimacy of the child. Such an action
would not be in her interests as T.M., whom the mother considered to be the child’s natural
father, had also denied his paternity. As the action could result in the finding that the
applicant was not the child’s father, she risked losing her maintenance claim against him, and
it appeared uncertain in the circumstances whether or not it would ever be possible to
determine who her natural father was.
On 8 April 1993 the Linz Senior Public Prosecutor’s Office (Oberstaatsanwaltschaft)
dismissed the applicant’s request to instruct the Public Prosecutor’s Office to file an action to
contest the legitimacy of the child. It confirmed the Public Prosecutor’s assessment of her
interests and added that the said action was not required by any public interest as the
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34308/96
applicant had already known when he married that his wife was pregnant with another man’s
child.
On 12 April 1994 the Federal Ministry of Justice (Bundesministerium für Justiz)
rejected the applicant’s further request to instruct the Public Prosecutor’s Office to file an
action to deny his paternity, on the ground that the applicant could not claim to have a right to
the initiation of proceedings by the Public Prosecutor.
The Ministry noted that the one-year limitation-period during which the husband
could lodge an action to contest the legitimacy of a child born in wedlock served the purpose
of limiting any uncertainty as regards the status of the child. Thus, it served legal certainty
and, as a general rule, the interests of the child. Nevertheless, the legislator had accepted as a
consequence that paternity based on the presumption of legitimacy and natural paternity will
in some cases not coincide. Following expiry of the time-limit, only the Public Prosecutor
could bring such an action if it was required in the interests of the child or in the public
interest.
The applicant had argued that the public interest required an action in his case, as he
had not been familiar with Austrian law and had therefore failed to comply with the timelimit. However, the Ministry noted that, according to his own submissions, he had known that
his wife was pregnant with another man’s child when they were married. Given that they
separated before the child’s birth, he could have been expected to seek legal advice, all the
more so as Turkish law contains a similar time-limit for such actions. The applicant had
further argued that the action was required in the interests of the child, who had no contact
with him and did not regard him as its father. Her maintenance would not be endangered as
Austria was a welfare State. In this regard the Ministry found that the Public Prosecutor had
rightly assessed the situation. It did not suffice that the child’s interests were not endangered;
the action had to be required in its interest. This was not the case, as it was by no means sure
that eventual paternity proceedings against T.M. would be successful.
On 20 June 1994 the Constitutional Court (Verfassungsgerichtshof) refused to deal
with the applicant’s complaint and referred the case to the Administrative Court
(Verwaltungsgerichtshof).
On 14 December 1995 the Administrative Court rejected the applicant’s complaint on
the ground that he had no right to appeal. As he had failed to introduce an action within the
one-year time-limit, he no longer had any right to contest the child’s legitimacy himself. Nor
did he have a right to have such proceedings introduced by the Public Prosecutor. The
decision was served on the applicant on 20 May 1996.
B.
Relevant domestic law
According to section 138 § 1 of the Civil Code a child who is born while its mother is
married is presumed to be legitimate. This presumption may only be rebutted by a judicial
decision establishing that the child is not the child of the mother’s husband.
Section 156 §§ 1 and 2 of the Civil Code provides that the mother’s husband may
contest the legitimacy of the child within a one-year time-limit, which starts running from the
moment when the husband learns about the circumstances which cast doubt on the child’s
legitimacy, but not before the birth of the child.
34308/96
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Section 158 of the Civil Code provides that, in case the husband has not contested the
legitimacy of the child within the one-year time-limit, or in case he has died or his
whereabouts are unknown, the Public Prosecutor may contest the legitimacy of the child, if
he deems that this is required in the public interest or in the interests of the child or its
descendants.
COMPLAINTS
1.
The applicant complains under Article 6 of the Convention that he did not have a
review by a tribunal of the Public Prosecutor’s refusal to bring proceedings to contest the
legitimacy of the child. He submits in particular that the Administrative Court, in finding that
he did not have a right to have such proceedings instituted by the Public Prosecutor, failed to
decide on the merits of the Public Prosecutor’s decision, thereby violating his right to have a
determination of his civil rights by a tribunal.
2.
Further, the applicant complains under Article 8 of the Convention that the Public
Prosecutor’s refusal to bring proceedings to contest the legitimacy of the child violated his
right to respect for his private and family life. He argues that it was both in his and the child’s
interests to have the identity of her biological father determined, particularly as he and his
wife had already separated before her birth and he had never established any relationship with
her. He further argues that it cannot be in the public interest to maintain a legal presumption
while his divorced wife admitted that he was not the biological father of the child.
THE LAW
1.
The applicant complains under Article 6 of the Convention that he did not have a
review by a tribunal of the Public Prosecutor’s refusal to bring proceedings to contest the
legitimacy of the child. Article 6, so far as relevant, reads as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a
fair and public hearing ... by an independent and impartial tribunal established by law
... .”
The Court notes that the applicant complains in essence about a lack of access to
court. However, he does not raise this complaint as regards the one-year limitation period
which applies to a husband’s action for contesting the legitimacy of a child born in wedlock,
but asserts that he should have had access to court as regards the Public Prosecutor’s refusal
to bring such an action after the expiry of the said time-limit.
The Court recalls that Article 6 § 1 of the Convention secures to everyone the right to
have any claim relating to his civil rights and obligations brought before a court or tribunal
(see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18,
p. 18, § 36). However, Article 6 § 1 only applies to disputes (“contestations”) over rights
which can be said, at least on arguable grounds, to be recognised under domestic law. The
dispute must be genuine and serious; it may relate not only to the actual existence of a right
but also to its scope and the manner of its exercise. The outcome of the proceedings must be
directly decisive for the right in question, mere tenuous connections or remote consequences
not being sufficient to bring Article 6 § 1 into play (see for instance the Werner v. Austria
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34308/96
judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2507,
§ 34).
The Court notes that, according to section 158 of the Civil Code, the Public
Prosecutor may contest the legitimacy of the child following the expiry of the one-year timelimit for the husband’s action, if he deems that this is required in the public interest or in the
interests of the child or its descendants. Having regard to the wording of this provision and its
interpretation by the domestic authorities, including the Administrative Court, which clearly
stated that the applicant’s own action was time-barred and that he did not have a right to have
such proceedings introduced by the Public Prosecutor, the Court finds that the applicant
asserts a “right” which cannot arguably be said to be recognised under Austrian law.
Therefore, Article 6 § 1 of the Convention does not apply in the present case.
It follows that this complaint is incompatible ratione materiae with the provisions of
the Convention pursuant to Article 35 § 3 of the Convention.
2.
Further, the applicant complains under Article 8 of the Convention that the Public
Prosecutor’s refusal to bring proceedings to contest the legitimacy of the child violated his
right to respect for his private and family life. He argues that it was both in his and the child’s
interests to have the identity of her biological father determined, particularly as he and his
wife had already separated before her birth and he had never established any relationship with
her. He further argues that it cannot be in the public interest to maintain a legal presumption
while his divorced wife admitted that he was not the biological father of the child
Article 8 reads in its relevant part as follows:
“1. Everyone has the right to respect for his private and family life, ...
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
… for the protection of health or morals, or for the protection of the rights and
freedoms of others.”
The Court observes at the outset that the applicant’s reference to the child’s interests
appears to be in support his own complaint and is not a complaint on her behalf. It is not
therefore necessary to examine whether the applicant has legal standing to represent his
putative daughter in the present proceedings.
The Court recalls that in a similar case, in which a husband wished to institute
proceedings to contest the paternity of a child born in wedlock, the question was left open
whether there was “family life” in such instances because of the finding that, anyway, the
matter undoubtedly concerned “private life” (see the Rasmussen v. Denmark judgment of 28
November 1984, Series A no. 87, p. 13, § 33). Following this approach in the present case,
the Court will examine whether the Public Prosecutor’s refusal to introduce proceedings to
contest the child’s legitimacy reveals a lack of respect for the applicant’s private life.
The Court reiterates that the essential object of Article 8 is to protect the individual
against arbitrary action by the public authorities. There may in addition be positive
obligations inherent in ensuring effective “respect” for family life (or, as in the present case,
private life). However, the boundaries between the State’s positive and negative obligations
34308/96
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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 for instance the
Kroon and Others v. the Netherlands judgment of 27 October 1994, Series A no. 297-C,
p. 56, § 31).
The applicant argues that it cannot be in the public interest to maintain a legal
presumption of his paternity while his divorced wife admitted that he was not the father of the
child. However, in this respect the Court recalls that there are legitimate reasons of legal
certainty and the security of family relationships for States to apply a general presumption
that a married man is to be regarded as the father of his wife’s children (see no. 27110/95,
Nylynd v. Finland, Dec. 29.6.99, to be published in the Court’s official series).
The Court notes that section 156 of the Austrian Civil Code provides a possibility for
the husband to rebut the presumption of legitimacy within a one-year time-limit. Thereafter
only the Public Prosecutor can do so under section 158 of the Civil Code, if it appears
necessary in the public interest or in the interests of the child. In the present case, the
applicant failed to bring proceedings within the statutory time-limit and subsequently
requested the Public Prosecutor to do so. The domestic authorities carefully examined his
argument that he had not been aware of the limitation period but concluded that, in the
circumstances of the case, he could have been expected to seek adequate legal advice.
Further, the domestic authorities pointed out that the introduction of such proceedings by the
public prosecutor would not have served the interests of the child, who risked losing her
maintenance claim against the applicant, whilst the determination of her natural father’s
identity remained uncertain. Thus, the present application differs fundamentally from the
above-mentioned Kroon and Others case, which concerned biological parents and their child
which was born some seven years after its mother had separated from her husband and lost
contact with him, where the presumption of legitimacy could not be disproved by those
concerned and hindered the intended recognition of the child by its biological father, without
actually benefiting anyone (loc. cit., p. 58, § 40).
In sum, the Court finds that the relevant law as applied to the applicant struck a fair
balance between the different interests involved. In particular, it appears justified that, once
the limitation-period for the applicant’s own claim to contest his paternity had expired,
greater weight was given to the interests of the child than to the applicant’s interest in
disproving his paternity. Thus, the Public Prosecutor’s refusal to introduce proceedings to
contest the legitimacy of the child, does not disclose a lack of respect for the applicant’s
private life. It follows that this part of the application must be rejected as being manifestly illfounded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Erik Fribergh
Registrar
N. Bratza
President