DARMON v. POLAND
Inadmissible
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Marian Darmoń, is a Polish national who was born in 1947 and lives in Cracow. He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In December 1972 the applicant got married and on 18 May 1973 the applicant’s wife gave birth to a girl, J. The applicant did not try to rebut the legal presumption that he was J’s father. Subsequently, a second daughter was born of the applicant’s marriage. In 1984 the applicant divorced from his wife. The court awarded custody of the children to the applicant’s former wife and ordered the applicant to pay child maintenance for them. No doubts as to the applicant’s paternity were raised in the divorce proceedings. The applicant submitted that he had had doubts as to his paternity of his older daughter since the beginning of his marriage which had been reinforced during the divorce proceedings when his wife had admitted to infidelity. However, the applicant had neither brought an action denying paternity after the birth of J nor raised doubts as to his paternity in the divorce proceedings, considering that at the material time there had been no reliable scientific method of ascertaining that he was not the biological father of J. When DNA evidence had become possible in Poland and the applicant had decided to bring an action denying paternity, J had refused to undergo the test. On 24 November 2003 the applicant requested the Cracow District Prosecutor (Prokurator Rejonowy) to initiate civil proceedings by which he could deny his paternity of J. The applicant based his application on his personal conviction that J was not his daughter and on his suspicion that a certain Z.M. could be her biological father. On 5 April 2004 the applicant supplemented his application by submitting documents that had been requested by the prosecutor. Subsequently, the prosecutor obtained the case file of the applicant’s divorce proceedings from 1984 and heard testimonies from the applicant’s former wife. She denied having had an affair with Z.M., who had been her employer at the material time, and confirmed that the applicant was the father of her children. She also refused to submit to DNA testing. On three occasions in May and June 2004 the prosecutor attempted to hear evidence from the applicant, but he failed to reply to the summons. On 30 June 2004 the prosecutor sent him a letter refusing to initiate such proceedings. The prosecutor based that decision on the statements by the applicant’s former wife that the applicant was the biological father of J. As the applicant himself had failed to appear for interview with the prosecutor and his former wife had refused to undergo a DNA test, the prosecutor concluded that there was no evidence supporting the applicant’s request. The applicant contested this decision. On 27 July 2004 the Cracow Regional Prosecutor (Prokurator Okręgowy) informed him that he fully agreed with the findings of the District Prosecutor. On the same day the applicant appeared before the prosecutor without being summoned. On 16 November 2004 the Regional Prosecutor questioned the applicant and again dismissed his request to bring civil proceedings denying his paternity. The prosecutor considered that it was not possible to grant the applicant’s request solely on the basis of his statement. The prosecutor pointed to the fact that the applicant had not denied his paternity in the divorce proceedings twenty years ago and that his former wife had confirmed that he was the biological father of J. In those circumstances only genetic evidence could cast doubt on the presumption that the applicant was the father of J. Such a medical test could be ordered by the prosecutor; however, in the instant case it had not been possible given the lack of consent of all the parties involved, including his former wife. The applicant again contested the above decision. On 8 December 2004 the Cracow Appeals Prosecutor dismissed his complaint as groundless. Under Article 62 of the 1964 Family and Custody Code (Kodeks Rodzinny i Opiekunczy – “the Code”), if a child was born in wedlock there is a legal presumption that the mother’s husband is the father of her child. That presumption can be rebutted by bringing a civil action denying paternity (zaprzeczenie ojcostwa) (Article 62 § 3 of the Code). Under Article 63, an action denying paternity can be brought by the husband of the mother within six months of learning that his wife has given birth to a child. Finally, Article 86 of the Code provides that paternity may at any time be challenged by a prosecutor.