ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 02.06.2005<ДЕЛО ЗНАМЕНСКАЯ (znamenskaya) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ZNAMENSKAYA v.
RUSSIA
(Application No. 77785/01)
JUDGMENT <*>
(Strasbourg,
2.VI.2005)
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<*> 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
Znamenskaya v. Russia,
The European Court of Human Rights (First
Section), sitting as a Chamber composed of:
Mr C.L. Rozakis,
President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated
in private on 12 May 2005,
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in an application
(No. 77785/01) against the Russian Federation lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by a Russian national, Ms Natalya Vasilyevna
Znamenskaya, on 14 November 2001. The applicant, who had been granted legal aid,
was represented before the Court by Ms E. Liptser, a lawyer with the
International Protection Centre in Moscow.
2. The Russian Government
("the Government") were represented by Mr P. Laptev, Representative of the
Russian Federation at the European Court of Human Rights.
3. The
applicant alleged, in particular, that the domestic courts" refusal to establish
the paternity of the stillbirth and change its name accordingly had violated her
right to respect for private and family life.
4. The application was
allocated to the First Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 25 March 2004, the Court declared the application partly
admissible.
6. On 1 November 2004 the Court changed the composition of
its Sections (Rule 25 § 1). This case was assigned to the newly composed First
Section (Rule 52 § 1).
7. Neither the Government nor the applicant filed
observations on the merits (Rule 59 § 1).
THE FACTS
I. The
circumstances of the case
8. The applicant was born in 1955 and lives in
Moscow.
9. In 1997 the applicant became pregnant.
10. In the night
of 1 August 1997, in the thirty-fifth week of pregnancy, the embryo asphyxiated
in the womb. On 4 August 1997 the applicant gave birth to a stillborn baby boy
and decided to bury him.
11. On 13 August 1997 the stillbirth was
registered by the Chertanovskiy branch of the Civil Acts Registration Service
(Чертановский отдел ЗАГС). Mr Z., who had been the
applicant"s husband until their divorce on 25 March 1997, was entered as the
stillbirth"s father in the birth certificate (акт о рождении) and in
the birth register (книга записей рождений).
12. The
applicant submitted that the biological father of the stillbirth had been Mr G.,
with whom she had been living as man and wife since 1994. Mr G. had expected the
child and talked about their future son as his own. They could not, however,
file a joint declaration establishing the child"s paternity because Mr G. had
been placed in a detention facility on 20 June 1997. It appears that the
applicant had no access to her partner after that date. On 12 October 1997 Mr G.
died in custody.
13. The applicant refused to put her former husband"s
surname on the stillborn child"s tombstone and left it empty.
14. On 10
August 2000 the applicant requested the Chertanovskiy District Court of Moscow
to establish Mr G."s paternity in respect of the stillbirth and amend the
child"s surname and patronymic name accordingly. In Russian, patronymic names
are normally formed from the father"s forename and a special ending, -ovich for
sons or -ovna for daughters. The applicant relied on Article 49 of the Family
Code.
15. On 21 November 2000 the applicant"s former husband died.
16. On 16 March 2001 the Chertanovskiy District Court of Moscow gave its
decision. It held that the stillborn child had not acquired civil rights,
whereas Article 49 of the Family Code only applied to living children. It
ordered the discontinuation of the proceedings because "[the applicant"s claim]
was not fit for examination and determination in the framework of civil
proceedings".
17. On 18 May 2001 the Moscow City Court, on an appeal by
the applicant, upheld the decision of 16 March 2001. The court repeated that
"the case could not be examined as a civil action because the child had not
acquired civil rights".
II. Relevant domestic law
18. The Russian Civil
Code (Law of 30 November 1994) provides that a person"s legal capacity shall
begin at the moment of birth and terminate on death (Article 17 § 2).
19. The Russian Family Code (Law of 29 December 1995) provides:
Article
48. Establishment of the child"s descent
"2. If a child is born to
parents who are married to each other or within three hundred days of their
divorce... or the death of the spouse of the child"s mother, the spouse (former
spouse) of the mother shall be deemed to be the father of the child unless
proved otherwise...
3. If the child"s mother declares that her spouse
(former spouse) is not the child"s father, the child"s paternity shall be
established in accordance with paragraph 4 of this Article or Article 49 of this
Code.
4. The paternity of a person who is not married to the child"s
mother shall be established on the basis of a joint declaration filed by the
father and mother of the child..."
Article 49. Establishment of paternity
in court proceedings
"If a child is born to parents who are not married
to each other and there is no joint declaration or declaration by the child"s
father (Article 48 § 4 of this Code), the paternity of the child shall be
established in court proceedings on the application of either parent... [In such
proceedings] the court shall have regard to any evidence that establishes the
child"s paternity with certainty."
Article 50. Establishment by a court
of the fact of acknowledgement of paternity
"If the person who
acknowledged the paternity of the child but was not married to his/her mother
dies, the fact of his having acknowledged paternity may be established by a
court in accordance with the rules on civil procedure."
Article 51.
Entering the child"s parents in the birth register
"1. If the father and
mother are married to each other they shall be entered as the child"s parents in
the birth register on the basis of an application lodged by either of them.
2. If the parents are not married to each other the mother"s particulars shall
be entered on an application by her, and the father"s particulars entered on a
joint application by the father and mother of the child, or on an application by
the father of the child (paragraph 4 of Article 48) or pursuant to a judicial
decision..."
THE LAW
I. Alleged violation of Article 8 of the
Convention
20. The applicant complained under Article 8 of the Convention
that the domestic courts had not considered her claim for the establishment of
the stillbirth"s descent from her late partner and for an amendment of its name.
Article 8 provides 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. The parties" arguments
21. The applicant submitted that
the domestic authorities had failed in their positive obligation to ensure
effective respect for her private and family life. Referring to the Court"s
case-law, she maintained that "respect" for "family life" requires that
biological and social reality prevail over a legal presumption which... flies in
the face of both established fact and the wishes of those concerned without
actually benefiting anyone" (Kroon and Others v. the Netherlands, judgment of 27
October 1994, Series A No. 297-C, § 40).
22. The Government accepted
that the domestic courts" refusal to entertain the applicant"s claim had had no
legal basis. Under Article 50 of the Family Code, even in the event of death of
the person who had acknowledged paternity and was not married to the child"s
mother, the courts could establish the fact of his having acknowledged
paternity. Such an acknowledgement would entail, as a consequence, an amendment
to the birth certificate and attribution of the presumed father"s family name
and patronymic name to the child.
B. The Court"s assessment
1.
Applicability of Article 8 of the Convention
23. The Court observes,
firstly, that it has on a number of occasions held that disputes relating to
individuals" surnames and forenames come within Article 8 of the Convention.
Although that provision does not mention a right to a name explicitly, a
person"s name - as a means of personal identification and of linking to a family
- nonetheless concerns his or her private and family life (see, in particular,
the following judgments: Burghartz v. Switzerland of 22 February 1994, Series A
No. 280-B, p. 28, § 24; Stjerna v. Finland of 25 November 1994, Series A No.
299-B, p. 60, § 37; and Guillot v. France of 24 October 1996, Reports of
Judgments and Decisions 1996-V, pp. 1602 - 03, § 21).
24. In the instant
case, however, the core of the applicant"s grievance is the impossibility of
having her stillbirth"s patronymic name and surname amended so as to reflect its
biological descent from her late partner. The present application is therefore
distinguishable from the cases where the domestic authorities opposed the
parents" choice of the child"s forename (see, for example, Salonen v. Finland,
No. 27868/95, Commission decision of 2 July 1997, and Guillot, cited above) or
their request to give the child the mother"s surname rather than the father"s
(see, for example, G.M.B. and K.M. v. Switzerland (dec.), No. 36797/97, 27
September 2001, and Bijleveld v. the Netherlands (dec.), No. 42973/98, 27 April
2000). Nor is the case-law concerning a person"s request to change his or her
own surname (see Stjerna, cited above, and The Former King Constantinos of
Greece and Others v. Greece, No. 25701/94, Commission decision of 21 April 1998)
applicable, because a stillbirth could not be considered to have acquired a
right to respect for his private or family life separate from that of his
mother.
25. In the Court"s view, what lies at the heart of the present
case is the applicant"s ability to obtain recognition of Mr G. as the biological
father of the stillborn child, notwithstanding the legal presumption that the
husband was the father of the child born within three hundred days of the
dissolution of the marriage. The attribution of her late partner"s surname and
patronymic name to the stillbirth would come as a corollary of such
recognition.
26. As is well established in the Court"s case-law, the
notion of "family life" in Article 8 refers to the existence of "family ties"
between partners, whether marital or non-marital, and a child born to the
partners is ipso jure part of that relationship from the moment of its birth and
by the very fact of it (see, in particular, the following judgments: {Gul}
<*> v. Switzerland of 19 February 1996, Reports of Judgments and Decisions
1996-I, § 32; Keegan v. Ireland of 26 May 1994, Series A No. 290, p. 17, § 44,
and Kroon and Others v. the Netherlands of 27 October 1994, Series A No. 297-C,
§ 30).
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<*> Здесь и
далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены
фигурными скобками.
27. The existence or non-existence of
"family life" for the purposes of Article 8 is essentially a question of fact
depending upon the real existence in practice of close personal ties (see K. and
T. v. Finland [GC], No. 25702/94, § 150, ECHR 2001-VII). It is obvious that in
the instant case no such personal ties could have developed because the child
was stillborn and because its biological father had been separated from the
applicant before its birth and died shortly thereafter. However, it has also
been the Convention organs" traditional approach to accept that close
relationships short of "family life" would generally fall within the scope of
"private life" (see, for example, Wakefield v. the United Kingdom, No. 15817/89,
Commission decision of 1 October 1990 [relationship between a prisoner and his
{fiancee}]; X. and Y. v. the United Kingdom, No. 9369/81, Commission decision of
3 May 1983 [same-sex relationship]; and X. v. Switzerland, No. 8257/78,
Commission decision of 10 July 1978 [relationship between a foster mother and
the child she had looked after]). Bearing in mind that the applicant must have
developed a strong bond with the embryo whom she had almost brought to full term
and that she expressed the desire to give him a name and bury him, the
establishment of his descent undoubtedly affected her "private life", the
respect for which is also guaranteed by Article 8. That provision is therefore
applicable in the present case.
2. Compliance with Article 8 of the
Convention
28. 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 effective "respect"
for family life. 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 Kroon,
cited above, § 31).
29. In the instant case the existence of a
relationship between the applicant and Mr G. was not disputed. Nor has anyone
contested Mr G."s paternity in respect of the stillborn child to whom the
applicant gave birth on 4 August 1997. As the child was stillborn, the
establishment of its paternity did not impose a continuing obligation of support
on anyone involved. It appears therefore that there
