CASE OF PHINIKARIDOU v. CYPRUS
Violation of Art. 8;Not necessary to examine Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings
7. The applicant was born in 1945 and lives in Nicosia. 8. The applicant was born out of wedlock. Her biological mother abandoned her outside the house of a woman who gave her to Mrs Maria Phinikaridou. The latter brought her up. Although estranged from her biological mother, the applicant did not lose all contact with her. In December 1997, when the applicant was fifty-two years old, her biological mother, just before dying, told her the name of her biological father in the presence of the applicant's son. Her mother died in January 1998. 9. On 24 June 1999 the applicant lodged an application with the Nicosia Family Court requesting judicial recognition of paternity on the basis of section 20(2) of the Children (Relatives and Legal Status) Law 1991 (hereinafter “the Children Law”). The respondent, whom the applicant claimed was her father, objected to the application and denied paternity. Without going into the merits of the paternity claim, he maintained that the applicant's claim was time-barred under section 22(3) of the above-mentioned Law. The applicant claimed, in reply, that the aforementioned section and, in addition, section 25(1) of the same Law setting in motion the period of limitation on the date of entry into force of the Law rather than on the date when she acquired knowledge of her father's identity, were unconstitutional. In particular, she argued that they were contrary to Articles 15 § 1 (the right to respect for private and family life), 28 (the principle of equality and non discrimination) and 30 § 1 (the right of access to a court) of the Constitution. The applicant contended that she had been prevented from having recourse to court and from determining through judicial proceedings whether or not she was the respondent's daughter. She had also been placed in a disadvantageous position with regard to other litigants who happened to acquire information concerning their father within the statutory time-limit. 10. On 15 September 1999 the respondent applied to the court for trial of the preliminary matter of whether the applicant's claim was statute-barred. On 30 October 2000 the applicant lodged an application requesting the court to refer the question to the Supreme Court. 11. On 17 May 2001 the Nicosia Family Court, following the agreement of the parties, decided to refer the issue of constitutionality of section 22(3) to the Supreme Court under Article 144 of the Constitution. 12. In its judgment of 23 November 2001 the Supreme Court, by a majority (Judges Artemides, Nicolaides, Kallis, Iliades, Kramvis and Gavrielides), held that sections 22(3) and 25(1) of the Children Law complied with the relevant provisions of the Constitution and the Convention. In particular, the Supreme Court noted the following: “The applicant's lawyer suggests that the violation of Articles 15 and 30 of the Constitution is caused by the fact that the applicant learnt the identity of her natural father in 1997. It was, consequently, objectively impossible to lodge the application for her recognition within the three-year period from the date the Law came into force. Therefore, as he concludes, Article 30 § 1 of the Constitution is also violated because the applicant is deprived of access to court to assert her statutory right, a right which originates directly from Article 15 of the Constitution, which protects private and family life. A further suggestion of the applicant's lawyer, concerning unfavourable discrimination caused by the different time-limits for the exercise of other rights that are provided for by the Law, we will not deal with because it was not pursued. ... The matters raised are extremely serious because they touch on the institution and the function of the family: the most important nucleus of society, the members of which are bound by the deepest and purest feelings of love and solidarity. The State considers self-evident the value of the institution of the family, which it also protects in its most powerful statute, the Constitution. This also regulates the whole range of family relationships – also on the basis of the criterion of their lawful functioning in society as a whole – in legislative rules which constitute the basis of the body of law known as Family Law. The basis of our discussion is Articles 15 and 30 of the Constitution, corresponding to Articles 8 and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was ratified by our House of Representatives by Law No. 39/62. Accordingly, the decisions of the European Court of Human Rights and the Commission on the matters with which we are concerned illustrate the approach to be taken, as does our jurisprudence . ... In the recent decision of the Full Court of the Supreme Court in Pantelis Yiorgalla v. Soulla Hadjichristodoulou (2000) 1 A.A.D. 2060, we dealt with the provisions of section 11(1)(a) of the same Law, according to which the husband of the mother is barred from contesting paternity after one year has elapsed from the time he is informed of the birth and the circumstances from which the conception of the child resulted. The Family Court had also addressed the same questions with reference again to Articles 15 § 1 and 30 § 1 of the Constitution. We refer to our above decision, the reasoning of which we believe holds in the present case as well without being distinguished on any ground whatsoever. The legal principles, as discussed and adopted, are applicable here too. ... The general principle which emerges from the decisions of the European Court of Human Rights is that the right of access to court is subject to legitimate restrictions, precisely so that it can function rationally for all interested parties in the judicial process. The ECHR considers that time-limits on the exercise of a right serve fundamental purposes inseparably interwoven with certainty about the rights of individuals and are intended to ensure the finality of the dispute. ... Yiorgalla is distinguishable, as the applicant's lawyer submits, in a situation where the child seeking recognition by its natural father learns his identity after its right has lapsed under the Law. In such a case, the lawyer asserts, the right is time-barred, as has happened in the case of the applicant. We do not agree with this submission. In the statute of limitations on civil rights the starting point of the time-limit is not the litigant's knowledge of the particulars on the basis of which he will pursue his right, but the event which created the cause of action. And this is determined, in case of disagreement, by the court according to objective criteria. This principle was applied by the Commission of Human Rights in the case of X. v. Sweden.” 13. The Supreme Court laid emphasis on the decision of the European Commission of Human Rights in the case of X v. Sweden (decision of 6 October 1982, no. 9707/82, Decisions and Reports 31, p. 223), in particular the following extract: “In the opinion of the Commission it must generally be accepted in the interest of good administration of justice that there are time-limits within which prospective proceedings must be instituted. It must also be accepted that the time-limit is final and that there is no possibility to institute proceedings even when new facts have arisen after the expiry of the time-limit. This is also true for paternity proceedings. The Commission is furthermore of the opinion that a time-limit of three years from the child's birth as in the present case, is not an unreasonable time-limit for instituting paternity proceedings. Accordingly, the Commission finds that the fact that the applicant was not permitted to institute paternity proceedings does not disclose any appearance of a violation of Article 6 of the Convention taken alone.” 14. The Supreme Court concluded that the provisions of sections 22(3) and 25(1) of the Children Law not only did not conflict with the provisions of Articles 15 and 30 of the Constitution but, on the contrary, were in line with the jurisprudence and reasoning which the Court has adopted in the operation and application of the corresponding Convention Articles. In this regard, the Supreme Court held as follows: “We also note that the entirety of the provisions of Articles 15 and 30 which have occupied our attention create not only rights but also obligations. Article 30 does not operate only on behalf of the person resorting to the court but also on behalf of those who are being sued. All the interested parties before the court have the right to a fair trial in accordance with paragraph 2 of the Article, and the right to present their case, adduce evidence and examine witnesses, as provided for in paragraph 3 of the same Article. The right of protection of private and family life is provided for in paragraph 1 of Article 15; in accordance with paragraph 2, however, interference with that right in accordance with the law is permitted for the protection of the rights and freedoms which the Constitution guarantees to any other person. The principle of proportionality and balance of the rights is also based on the spirit and letter of those provisions, as is discussed in the passages we have cited above. In the particular question before us, it should not be overlooked that in the period which will have elapsed between the birth of the child born out of wedlock and the submitting of the application for paternal recognition, the putative father could have created his own family. The submitting of an application for paternal recognition and indeed when the putative father is advanced in age will without doubt cause upheaval in his family life. Therefore the recognition of the right to submit an application without time-limits may, on the one hand, have as a consequence the creation of a family for the child but, on the other, lead also to the break-up of another family, the family of the putative father. It is for this reason that the principle of proportionality must play the decisive role. Its correct and commensurate application dictates that the exercise of the relevant right be time-barred after a reasonable time has elapsed since the child's birth.” 15. Lastly, in view of the interesting and novel legal matter raised before it, the Supreme Court did not make an order for costs. 16. However, a minority of the Supreme Court judges dissented (Judges Pikis, Nikitas, Konstandinides, Nicolaou and Hadjihambis). The minority found that section 22(3) of the Children Law was contrary to and incompatible with the provisions of Articles 15 § 1 and 30 §§ 1 and 2 of the Constitution since it extinguished the exercise of the family right to recognition of paternity. They therefore considered that the application could not be considered time-barred. 17. The minority, following the Supreme Court's judgment in Yiorgalla v. Hadjichristodoulou ((2000) 1 A.A.D. 2060), considered that the setting of a time-limit for the exercise of the civil right to recognition of paternity was acceptable provided that it was not oppressive and left a reasonable margin for the exercise of the right. The creation of an institution for the incorporation into the family of a child born out of wedlock was an obligation of the State that was imposed by both Article 15 of the Constitution and Article 8 § 1 of the Convention. 18. They further observed that it was indisputable that the right of recognition of paternity constituted an integral aspect of the family life of the individual which Article 15 § 1 of the Constitution safeguarded. It was equally certain in their view that the exercise of this right by the child might be subject to reasonable time-limits. The crucial question was whether a time-limit for the exercise of the right could be set irrespective of the knowledge of the facts that constituted the right or even the possibility, viewed objectively, of the holder of the right acquiring knowledge of that right. 19. The minority also examined the Limitation Law, Cap. 15, and in this context stated the following: “In civil law the setting of time-limits is related, as a rule, to the moment the cause of action arises. The Limitation Law, Cap. 15, provides for this. ... This principle is subject to two categories of exceptions, namely: the impossibility of exercise of the right by persons affected by an impediment – minority (under the age of 18), mental disturbance, prohibition from administering the individual's affairs or absence from the country; and the action is for relief from the consequences of a mistake. In both cases the time-period for the exercise of the right is suspended for as long as the ignorance or impediment exists. The spirit by which the Limitation Law is inspired is that the ignorance of or the impossibility of defending rights suspends, within the framework we have explained, the time-limits. The subject of paternity belongs to established civil rights which touch on the existence of the individual. The recognition of paternity takes effect against all and marks the framework of the family of the individual (see Nicolaides v. Yerolemi ((1984) 1 C.L.R. 742). The question in the present case is whether the right which the person concerned is ignorant of – and, objectively, could not have ascertained – can lapse before it comes to the knowledge of the person entitled to exercise it. The right under discussion is protected as a fundamental human right by the Constitution. The question arises whether the extinction of the right, independently of the knowledge or the possibility of acquiring knowledge of its existence, is compatible with the respect for the right to family life, which Article 15 § 1 of the Constitution safeguards and of the right of recourse to court, which Article 30 §§ 1 and 2 of the Constitution safeguard. Taking the question further: is elimination ever possible of a fundamental right, the existence of which the person concerned does not know and about which he does not have the means of being informed?” 20. The minority considered that the decision of the Commission of Human Rights in X. v. Sweden (cited above) did not touch directly on the matter before them, which revolved round respect for the right to family life. They did, however, find that it indirectly shed some light on the point in issue to the extent that it maintained that the separate regulation of the claim by the child for recognition of paternity was a right of a peculiar character which was connected to the particularities of the quest for paternity by the child itself. The Court's judgment in the case of Kroon and Others v. The Netherlands (judgment of 27 October 1994, Series A no 297C, p. 43), in which it was held that the limitations imposed by Dutch law on the recognition of paternity constituted a violation of the right to family life, was directly relevant to the facts of the applicant's case. 21. The minority finally underlined that: “The facts which relate to the paternity of a child relate to the time before its birth, in reality to the time which relates to its conception. Objectively, the child does not know, nor has it the means of discovering the facts surrounding its conception. The only persons who have authentic knowledge of these facts are the parents, each of them, primarily the mother. Chance knowledge, to the extent that the possibility of the paternity of a child is thought likely, may be acquired by third persons to the extent that the facts concerning the paternity of a child are rumoured, without it ever being certain that such possibility will come to the knowledge of the person affected. The setting of a time-limit for the exercise of the right to recognition of paternity, regardless and independent of the knowledge of facts that constitute it, reduces the right to the point of extinction. The core of the right to family life is violated and the right provided becomes only a right by law, and does not obtain respect.” 22. Following the Supreme Court's judgment, the applicant withdrew her application before the Family Court on 3 April 2002. 23. The applicant's putative biological father died on an unspecified date in 2004. 24. Article 15 of the Constitution provides: “1. Every person has the right to respect for his private and family life. 2. There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person.” 25. Article 28 §§ 1 and 2 provide: “1. All persons are equal before the law, the administration and justice and are entitled to equal protection thereof and treatment thereby. 2. Every person shall enjoy all the rights and liberties provided for in this Constitution without any direct or indirect discrimination against any person on the ground of his community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in this Constitution.” 26. Article 30 §§ 1 and 2 provide: “1. No person shall be denied access to the court assigned to him by or under this Constitution. The establishment of judicial committees or exceptional courts under any name whatsoever is prohibited. 2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law ... .” 27. Article 144 reads as follows: “1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court. 2. The Supreme Constitutional Court, on a question so reserved, shall, after hearing the parties, consider and determine the question so reserved and transmit its decision to the court by which such question has been reserved. 3. Any decision of the Supreme Constitutional Court under paragraph 2 of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall, in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, operate as to make such law or decision inapplicable to such proceedings only.” “Challenging paternity is excluded: (a) for the husband of the mother, when one year has passed since the date he was informed of the child's birth and the circumstances from which it emerges that the mother did not conceive by him, and, in every case five years after the birth... .” (1) “A child that is born out of wedlock acquires retrospectively after its birth the legal status and the rights of a child born in wedlock as against its parents and their relatives if the parents subsequently marry and the child had been recognised or after the marriage the child is recognised voluntarily or by judicial decision as the child of the husband. (2) The voluntary recognition as provided in paragraph (1) may be challenged on the grounds that the husband of the mother is not the father in accordance with the provisions of section 18.” “The paternal recognition of a child who is born out of wedlock is effected by (a) voluntary recognition or (b) recognition by judicial decision.” (1) “The father can recognise a child born out of wedlock as his own provided that the mother consents to this. (2) If the mother has died or does not have the capacity to enter legal relations, the recognition is effected by the sole declaration of the father. (3) If the father has died or does not have the capacity to enter into legal relations, the recognition may be given by the paternal grandfather or grandmother. (4) If the child has died the recognition takes effect for the benefit of its descendants.” “If the consent of the mother is given in accordance with the provisions of this section, the recognition is considered to have been carried out and the appropriate changes are made in the official registers.” (1) “The mother has the right to apply to the court for recognition of the paternity of her child that was born out of wedlock with its father”. (2) The child also has the right referred to in paragraph (1) above. (3) If the mother refuses her consent as provided for by paragraph (1) of section 16, the father also has the right to apply for recognition by judicial decision and in the case of paragraph (3) of section 16 that right vests in the paternal grandfather and grandmother.” “(1) The application of the mother for recognition by judicial decision is brought against the father or his heirs. (2) The application of the child for recognition by judicial decision is brought against the parent who has not proceeded with the necessary declaration for voluntary recognition or his heirs. (3) The application of the father or of his parents for recognition by judicial decision is brought against the mother or her heirs.” 28. Section 22 sets maximum time-limits after which it is not legally permissible for the mother, child or father, as the case may be, to seek judicial recognition of paternity. Unless exercised within the periods of limitation specified in the section, the legal right to seek judicial recognition lapses. “(1) The right of the mother to seek recognition by judicial decision of the paternity of her child shall lapse five years after the child's birth. (2) If the mother was married at the crucial period of the child's conception, her right to ask for recognition by judicial decision of the paternity of her child by the biological father shall lapse five years after the day when the decision upholding the challenge to paternity in accordance with the provisions of section 8 becomes final. (3) The right of the child to seek its recognition by judicial decision shall lapse three years after it has attained its majority. (4) The right of the father or of his parents to seek recognition by judicial decision shall lapse three years after the mother has refused to give her consent to voluntary recognition. (5) In the case of section 13 the right to recognition by judicial decision shall not lapse.” “In the case of voluntary recognition or recognition by judicial decision the child acquires from its birth the legal status and the rights of a child born in wedlock as against both its parents and their relatives.” 29. By virtue of section 25(1), in the case of applications for judicial recognition of paternity where majority has been attained before the Law entered into force, the three-year limitation period is set in motion on the date of entry into force of the Law, that is, 1 November 1991, and not on the earlier date of attaining majority as referred to in section 22(3): “In cases where reference is made in this Law to time-limits within which a person may exercise his rights or take the measures provided for in this Law , these time-limits shall begin to run from the date when this Law came into effect.” 30. Therefore, the limitation period provided for in section 22(3) is not retroactively applied. 31. The relevant provisions of Law 216/90 on parent-child relations provide: “(a) The care of a child who is a minor (“parental care”) is the duty and right of the parents, who shall exercise it jointly. (b) Parental care includes the determination of a name, the supervision of the person, the administration of the property and the representation of the child in each matter or legal transaction which relate to its person or property.” “(1) The parents have the obligation to maintain jointly their child who is a minor, each according to his capabilities. (2) By a decision and relevant arrangement by the court, the obligation of the parents by virtue of paragraph (1) may continue after the child attains its majority in cases where special circumstances demand this, such as in cases of incapacity or disability of the child or service in the National Guard or study at an educational institution or professional training school.” 32. In the case of Yiorgalla v. Hadjichristodoulou (cited above) the Supreme Court, sitting as a full bench, examined the constitutionality of the one-year limitation period set by section 11(1)(a) of the Children Law in respect of applications contesting paternity. Under this provision, the limitation period starts to run from the time the mother's husband is informed of the birth and the circumstances from which the conception of the child resulted. The question whether this time bar was in line with Articles 15 and 30 § 1 of the Constitution was referred to the Supreme Court by the Family Court. 33. The Supreme Court held that the protection of family life, which was safeguarded as a fundamental right by Article 15 § 1 of the Constitution and, in parallel, by Article 1 of the Convention, also extended to the procedural means which were provided for the constitution of the family and the relations between its members. Rights interwoven with family life were “civil rights” within the meaning of Article 30 of the Constitution and Article 6 § 1 of the Convention. Article 30 § 1 of the Constitution secured access to court for the exercise of civil rights. The setting of a time-limit for the exercise of civil rights was acceptable provided that the restriction which was set was not oppressive and left a reasonable margin for the exercise of the right. Furthermore, the time-limit had to correlate with the purpose which it aimed to serve. An objective purpose of time-limits was the securing of certainty as regards the rights of the individual. The repudiation of paternity was by nature a civil right, the exercise of which could be subject to time-limits. The creation of an institution for the incorporation into the family of a child born out of wedlock was an obligation imposed by Article 8 § 1 of the Convention on the State. 34. The Supreme Court noted that since the father had had knowledge of the material facts concerning the presumption of paternity from the day of the child's birth, the time-limit of one year was sufficiently long for the purposes of seeking judicial determination of his rights. 35. Accordingly, the Supreme Court held that the time-limit was in conformity with the Constitution.