CASE OF KALACHEVA v. RUSSIA
Violation of Art. 8;Non-pecuniary damage - award
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger
5. The applicant was born in 1978 and lives in Astrakhan. 6. On 5 September 2003 the applicant gave birth to a daughter out of wedlock. 7. On 11 November 2003 she lodged a claim with the Kirovskiy District Court of Astrakhan against Mr A., with whom she allegedly had been in a relationship since 2000, in order to establish paternity and obtain child maintenance. In the course of the proceedings the applicant was represented by a counsel. 8. On 15 December 2003 the court ordered a DNA test to be carried out. The blood samples were collected in Astrakhan and sent to a specialised institute in Moscow for a forensic genetic examination. According to the expert conclusion submitted on 19 March 2004, the probability that Mr A. was the father of the applicant’s daughter was 99.99%. 9. On 2 June 2004 the court heard the defendant’s representative, who contested the admissibility of the DNA test on account of procedural shortcomings, and the applicant, who insisted on its accuracy; and rejected the applicant’s claim in full. It found that the applicant had failed to support her allegations. With respect to the expert forensic report the court found as follows: “...Blood sampling for the expert report was entrusted to the Bureau of forensic-medical examinations in the Astrakhan Region... According to the Instruction on organisation and production of expert examinations in Bureaus of forensic medical examinations, blood samples must be packed individually... An envelope must be supplied, with identifying information (on the basis of an identity document) and signatures of a medical worker who took the blood samples and two medical workers who were present during this procedure... On the envelopes with the blood samples of Mr A., Ms Kalacheva and Ms K.D. [the applicant’s daughter] there are no data based on the identity documents of the above persons. Moreover, there are only two signatures on the envelopes, one of which belongs to a person who took the blood samples... Taking into account that the blood samples were collected with serious violations of the Instruction..., the court is critical of the expert conclusion, since it cannot exclude the possibility that the blood samples received by the experts were not those collected from the parties.” 10. The court found the other evidence submitted by the applicant, namely a photo showing her with the defendant and a badge in her name, issued by the hostel (where they allegedly met), insufficient to conclude that the defendant was her child’s father. 11. The applicant and her lawyer lodged an appeal against this judgment, claiming that the case should be sent to a fresh examination due to the court’s failure to respect the civil procedural law. On 29 June 2004 the Astrakhan Regional Court upheld the judgment of 2 June 2004. It mentioned that, under civil procedural law, an expert conclusion was not binding on the court, and that in the present case the DNA test, carried out in breach of the relevant procedure, was not corroborated by other evidence. 12. On 20 June 2005 the Supreme Court of the Russian Federation rejected an application for supervisory review lodged by the applicant’s lawyer. 13. Under Article 37 of the Code of Civil Procedure of the Russian Federation (“CCP”, in force as of 1 February 2003), rights and interests of minors are protected in court proceedings by their legal representatives – parents, adoptive parents or tutors. Under Article 49 of the Family Code of the Russian Federation of 29 December 1995 (Семейный кодекс РФ, in force as of 1 March 1996), 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, the paternity of the child shall be established in court proceedings on the application of either parent, or tutor, or a child in question upon reaching a full age. In such proceedings the court shall have regard to any evidence that establishes the child’s paternity with certainty. 14. Article 67 of the CCP provides that a court shall evaluate evidence in confidence, based upon a comprehensive, detailed and impartial review of all the evidence of the case. No evidence has a predetermined value. 15. An expert conclusion is not binding upon the court, and shall be evaluated by the court according to the rules stated in Article 67 of this Code. If the court disagrees with the expert conclusion, it shall explain its reasons in its decision (Article 86 § 3 of CCP). In case of doubt as to the accuracy or reasonableness of the expert conclusion, a court may order a second expert opinion to be prepared by other experts (Article 87 § 2 of CCP). 16. Resolution no. 9 of the Plenary Supreme Court of the Russian Federation of 25 October 1996 on application by the courts of the Family Code of the Russian Federation to cases concerning paternity and maintenance provides that in order to establish paternity the court may, if necessary, order a forensic examination. Under Article 86 § 3 of the CCP, the experts’ conclusion regarding a child’s descent, including a DNA test, is evidence that must be weighed together with other evidence (Article 6).