YILDIRIM v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant is a Turkish national, born in 1956 and living in Eferding in Austria. He is represented before the Court by Mr Hans Leitner, a lawyer practising in Wels. A. On 17 July 1989 the applicant married an Austrian national before the competent authorities in Turkey. At the time of their marriage his wife was already pregnant and the applicant knew that he was not the father of the future child. After their marriage, the applicant and his wife moved to Austria. They separated in September 1989. On 15 January 1990 the applicant's wife gave birth to a daughter. As the applicant and his wife were still married, the child was deemed to be their legitimate daughter in accordance with section 138 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) and was entered in the birth register as such. The applicant submits that he was not aware of this legal presumption or the fact that the husband can only bring an action to contest the legitimacy of a child born in wedlock within a one-year time-limit after its birth, while after that only the Public Prosecutor can do so. Moreover, he claims that his wife had assured him that the name of the natural father had been entered in the birth register. In 1991 the applicant and his wife filed a petition for divorce by consent with the Wels District Court. The applicant submits that it was only in the course of the divorce proceedings that he became aware of the fact that the child was considered to be his daughter. By then the one-year time-limit for contesting the child's legitimacy had already expired. On 4 November 1991 the applicant, referring to section 158 of the Civil Code, requested the Wels Public Prosecutor's Office (Staatsanwaltschaft) to institute proceedings to contest the legitimacy of the child. On 11 November 1991 the Public Prosecutor's Office heard the applicant's wife. She stated that she had not had any sexual relationship with the applicant before their marriage and that Mr. T.M. was the child's father. T.M. was questioned by a German court under letters rogatory. He conceded having had a sexual relationship with the applicant's wife before her marriage, but claimed that he was not the only one. On 21 January 1993 the Wels Public Prosecutor's Office informed the applicant that it did not see any reason to bring an action to contest the legitimacy of the child. Such an action would not be in her interests as T.M., whom the mother considered to be the child's natural father, had also denied his paternity. As the action could result in the finding that the applicant was not the child's father, she risked losing her maintenance claim against him, and it appeared uncertain in the circumstances whether or not it would ever be possible to determine who her natural father was. On 8 April 1993 the Linz Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) dismissed the applicant's request to instruct the Public Prosecutor's Office to file an action to contest the legitimacy of the child. It confirmed the Public Prosecutor's assessment of her interests and added that the said action was not required by any public interest as the applicant had already known when he married that his wife was pregnant with another man's child. On 12 April 1994 the Federal Ministry of Justice (Bundesministerium für Justiz) rejected the applicant's further request to instruct the Public Prosecutor's Office to file an action to deny his paternity, on the ground that the applicant could not claim to have a right to the initiation of proceedings by the Public Prosecutor. The Ministry noted that the one-year limitation-period during which the husband could lodge an action to contest the legitimacy of a child born in wedlock served the purpose of limiting any uncertainty as regards the status of the child. Thus, it served legal certainty and, as a general rule, the interests of the child. Nevertheless, the legislator had accepted as a consequence that paternity based on the presumption of legitimacy and natural paternity will in some cases not coincide. Following expiry of the time-limit, only the Public Prosecutor could bring such an action if it was required in the interests of the child or in the public interest. The applicant had argued that the public interest required an action in his case, as he had not been familiar with Austrian law and had therefore failed to comply with the time-limit. However, the Ministry noted that, according to his own submissions, he had known that his wife was pregnant with another man's child when they were married. Given that they separated before the child's birth, he could have been expected to seek legal advice, all the more so as Turkish law contains a similar time-limit for such actions. The applicant had further argued that the action was required in the interests of the child, who had no contact with him and did not regard him as its father. Her maintenance would not be endangered as Austria was a welfare State. In this regard the Ministry found that the Public Prosecutor had rightly assessed the situation. It did not suffice that the child's interests were not endangered; the action had to be required in its interest. This was not the case, as it was by no means sure that eventual paternity proceedings against T.M. would be successful. On 20 June 1994 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant's complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof).  On 14 December 1995 the Administrative Court rejected the applicant's complaint on the ground that he had no right to appeal. As he had failed to introduce an action within the one-year time-limit, he no longer had any right to contest the child's legitimacy himself. Nor did he have a right to have such proceedings introduced by the Public Prosecutor. The decision was served on the applicant on 20 May 1996. B. Relevant domestic law According to section 138 § 1 of the Civil Code a child who is born while its mother is married is presumed to be legitimate. This presumption may only be rebutted by a judicial decision establishing that the child is not the child of the mother's husband. Section 156 §§ 1 and 2 of the Civil Code provides that the mother's husband may contest the legitimacy of the child within a one-year time-limit, which starts running from the moment when the husband learns about the circumstances which cast doubt on the child's legitimacy, but not before the birth of the child. Section 158 of the Civil Code provides that, in case the husband has not contested the legitimacy of the child within the one-year time-limit, or in case he has died or his whereabouts are unknown, the Public Prosecutor may contest the legitimacy of the child, if he deems that this is required in the public interest or in the interests of the child or its descendants.