ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 24.11.2005<ДЕЛО ШОФМАН (shofman) ПРОТИВ РОССИИ> [англ.]

(Application No. 74826/01)
(Strasbourg, 24.XI.2005)
<*> 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 Shofman v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 3 November 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (No. 74826/01) 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 Mr Leonid Mikhaylovich Shofman, on 5 September 2001. The applicant was a Russian national at the time of the events complained of; he subsequently obtained German nationality.
2. The applicant, who had been granted legal aid, was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld, Germany. The Russian Government ("the Government") were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, a violation of Article 8 of the Convention, in that proceedings to disclaim his presumed paternity were held to be time-barred under the law in force at the material time.
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. Neither the applicant nor the Government filed observations on the merits (Rule 59 § 1).
7. 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).
I. The circumstances of the case
8. The applicant was born in 1957 and lives in Gross-Rohrheim (Germany).
9. On 10 August 1989 the applicant registered his marriage with Ms G. in Novosibirsk. After the marriage they moved to St. Petersburg.
10. On 12 May 1995, during her stay at her parents" home in Novosibirsk, Ms G. gave birth to a son to whom she gave her surname, despite objections from the applicant. Shortly thereafter the birth was registered; the applicant was named as the child"s father in the register.
11. In late September 1995 Ms G. and her son returned to St. Petersburg. The applicant believed that he was the boy"s father and treated him as his own.
12. On 28 March 1996 the applicant moved to Germany. Until September 1997 he waited for Ms G. and the son to join him there. However, in a letter of September 1997, Ms G. informed him that she had no plans to continue their marriage and would be applying for maintenance for the child. At about that time the applicant"s relatives in Novosibirsk advised him that he was not the boy"s father.
13. On 16 December 1997 the applicant petitioned for divorce and brought an action contesting paternity. On 12 April 1999 the divorce was granted.
14. On 16 November 2000 the Zheleznodorozhniy District Court of Novosibirsk delivered judgment in the paternity action. It noted that genetic (DNA) tests of 28 June 1999 and 5 June 2000 demonstrated that the applicant could not be the boy"s father. Although Ms G. maintained that the applicant was the father, in the absence of any doubts as to the accuracy of the tests, the court established that the applicant was not the father of her son.
The District Court ruled, however, that the case was governed by the RSFSR <*> Marriage and Family Code of 30 July 1969 because the child had been born before 1 March 1996, that is to say before the new Family Code of the Russian Federation came into effect. The RSFSR Marriage and Family Code set a one-year limitation period for an action contesting paternity, the starting point of which was calculated from the date the putative father was informed that he had been registered as the father. As the applicant had not contested paternity when the child was born and had only applied to the courts in December 1997, after the expiry of the time-limit, his action was held to be time-barred. The fact that a new Family Code had been introduced which did not lay down a limitation period for paternity actions was irrelevant because it was only applicable to family-law disputes arising after 1 March 1996.
<*> RSFSR - Russian Soviet Federalist Socialist Republic.
15. On 15 March 2001, on an appeal by the applicant, the Novosibirsk Regional Court upheld the judgment of 16 November 2000.
16. On 20 April and 26 October 2001 the Novosibirsk Regional Court and the Supreme Court of the Russian Federation, respectively, refused requests by the applicant for supervisory review.
17. On 12 September 2002 the Justice of the Peace of the Third Court Circuit of the Zheleznodorozhniy District of Novosibirsk granted Ms G."s claim for maintenance and made a charging order over the applicant"s interest in a flat.
18. On 15 September 2003 the Zheleznodorozhniy District Court of Novosibirsk upheld the maintenance order.
II. Relevant domestic law
19. The RSFSR Marriage and Family Code of 30 July 1969 (Кодекс РСФСР о браке и семье) provided that a person entered in the birth register as the father of a child could contest the entry within one year of the date he became or should have become aware that the entry had been made (Article 49).
20. The Family Code of the Russian Federation of 29 December 1995 (Семейный кодекс РФ, in force from 1 March 1996) provides that a person entered in the birth register as the father of a child may contest the entry by means of judicial proceedings (Article 52 § 1). It does not set any time-limit for bringing an action.
21. Resolution No. 9 of the Plenary Supreme Court of the Russian Federation of 25 October 1996 "On application by courts of the Family Code of the Russian Federation to the cases concerning paternity and maintenance" established that, in respect of children born before 1 March 1996, the RSFSR Marriage and Family Code was applicable and, accordingly, the time-limit for contesting paternity was one year from the date the person became or should have become aware of his registration as the child"s parent.
I. Alleged violation of Article 8 of the Convention
22. The applicant complained under Article 8 of the Convention that he had been prevented from instituting proceedings to contest paternity by the fact that, for statute-of-limitations purposes, time had started to run from the date the birth was registered. Article 8 reads 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. Arguments by the parties
1. The applicant
23. The applicant submitted, firstly, that even though the paternity proceedings had been aimed at the dissolution of existing family ties, the determination of his legal relations with his child undoubtedly concerned his private life (Rasmussen v. Denmark, judgment of 21 November 1984, Series A No. 87, p. 13, § 33). The State had a positive obligation under Article 8 to secure respect for private life even in the sphere of the relations of individuals between themselves (Botta v. Italy, judgment of 24 February 1998, Reports of Judgments and Decisions 1998-I, p. 422, § 33). In particular, the child had the right under Article 8 to establish a legal relationship with his natural father ({Mikulic} v. Croatia, No. 53176/99, §§ 64 - 66, ECHR 2002-I) and the husband had the right to contest paternity in order to establish that he was not the biological father. In the applicant"s opinion, Article 8 guaranteed the right to dissolve a family tie which was not the result of a biological bond. He concluded on the basis of the Kroon judgment that biological and social reality should prevail over legal presumptions and the quest for legal certainty of relations, so that any presumption of paternity had to be effectively capable of being rebutted and not amount to a de facto rule (Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A No. 297-C, § 40). The right to contest paternity was accepted in all Contracting States, including the Russian Federation. The applicant contended that the decisions of the domestic courts to declare his action disclaiming paternity time-barred constituted an interference with his right to respect for his private and family life.
24. The applicant accepted that the judgments of the domestic courts had been based on the law in force at the material time. He stressed, however, that the Government had not advanced any reasons to show that the law in question had pursued a legitimate aim and that the interference had been necessary in a democratic society. The applicant submitted that the interference had not been necessary and was not justified for the following reasons.
25. For the purposes of the limitation period provided for in the national law and applied in the applicant"s case, time had started to run irrespective of whether the husband had any doubts concerning his biological paternity at that juncture. A legal father would only disclaim paternity if he was put on notice of facts that showed that he was not the father. Only under these circumstances could he make an informed choice regarding the child: either to disavow it or continue to assume the parental obligations under a form of legalised adoption. Therefore, the legislature should have allowed an appropriate period during which the putative father could make a considered decision. In the applicant"s assessment, his rights would be sufficiently safeguarded only if time started to run from the date the husband learnt of the facts suggesting that he might not be the biological father. Furthermore, he contended that such an arrangement would not impair the interests of the child and that it was better psychologically for the child"s legal paternity to correspond to the biological reality.
26. The applicant laid emphasis on the fact that the new Family Code (effective from 1 March 1996) contained no time-limit for contesting paternity. An authoritative legal commentary on the new Family Code written by a former Russian Justice Minister acknowledged that the position of the legislature reflected in the new Code "placed an emphasis on the factual descent of the child as opposed to the mere formalism of the civil record which impeded the establishment of the truth". In the applicant"s opinion, this change at the domestic level demonstrated that the interests of the child could be safeguarded without preventing a putative father from contesting paternity.
27. The applicant asserted that in most other Contracting States either the limitation period for contesting paternity was relatively long in countries in which time was calculated from the child"s birth, or time only started to run once the legal father became aware of facts showing that he was not the biological father. In certain countries there was no time-limit at all or the limitation period was very long.
28. Finally, the applicant submitted that by the time he had discovered that he might not be the biological father the time-limit had already expired. There were no interests of the child that conflicted with his right to disclaim paternity because he had been living permanently in Germany since 28 March 1996 and there had been no actual family bond between him and the child.
2. The Government
29. The Government submitted that the judgments of the domestic courts were fully in compliance with the domestic law, notably the RSFSR Code of Marriage and Family, which was applicable in the applicant"s case. The domestic courts established that the applicant had agreed to his registration as the child"s father in July 1995 and, accordingly, could have contested the entry before 30 June 1996. However, he had not issued proceedings until December 1997 and his action had therefore been time-barred. The Government concluded that there had been no interference with the applicant"s right to respect for his private and family life.
B. The Court"s assessment
1. Applicability of Article 8 of the Convention
30. The Court has already examined cases in which a husband wished to institute proceedings to contest the paternity of a child born in wedlock. In those cases the question was left open whether the paternity proceedings aimed at the dissolution in law of existing family ties concerned the applicant"s "family life" because of the finding that, in any event, the determination of the father"s legal relations with his putative child concerned his "private life" (Yildirim v. Austria (dec.), No. 34308/96, 19 October 1999; and Rasmussen, cited above, § 33).
31. In the instant case the applicant sought, by means of judicial proceedings, to rebut the legal presumption of his paternity on the basis of biological evidence. The purpose of those proceedings was to determine his legal relationship with Ms G."s son, who was registered as his own.
32. Accordingly, the facts of the case fall within the ambit of Article 8.
2. General principles
33. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in ensuring effective "respect" for private or family life. These obligations may involve the adoption of measures designed to secure respect for private

[рус., англ.](по состоянию на 31.12.2004) "><СТАТУС КОНВЕНЦИИ n 179 МЕЖДУНАРОДНОЙ ОРГАНИЗАЦИИ ТРУДА "О НАЙМЕ И ТРУДОУСТРОЙСТВЕ МОРЯКОВ" (ЖЕНЕВА, 22 ОКТЯБРЯ 1996 ГОДА)> [рус., англ.](по состоянию на 31.12.2004)  »
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