CASE OF TSVETELIN PETKOV v. BULGARIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
5. The applicant was born in 1974 and lives in Sofia. 6. On 15 October 1993 the applicant got married. At the time of the marriage, the applicant’s wife had an almost three-year old son, who had been born on 20 September 1990 and whose father had been registered as “unknown”. On 21 September 1993 the applicant was registered as having recognised paternity in respect of that child. 7. The spouses apparently stopped living together about two years after their marriage and divorced in 1997. 8. In 1999 the applicant brought a claim in court to declare his recognition of paternity null and void. In particular, he asserted that the declaration, with which the child had been recognised and which had been enclosed in the case file, bore a signature that was not his. The Sofia City Court examined his case and found that the legal requirements for recognition of the child had not been met. More specifically, the applicant had not personally expressed his will to recognise the child before the State agent authorised to receive such declarations; in addition, it had been established on the basis of an expert report during the proceedings that the signature on the documents with which the child had been recognised in 1993 was not that of the applicant. The court declared the recognition of the child by the applicant null and void in a final decision of June 2001, which entered into force the following month. 9. In March 2002 the applicant’s former wife brought a claim on behalf of her child to establish the applicant’s paternity. She asked the court to order gynecological and blood tests in the context of the proceedings. She indicated in the claim the applicant’s “permanent address” as the address where he could be reached. 10. The applicant was not found at his “permanent address” when the authorities visited it once in April 2002. According to a note by the summons officer, a neighbour had indicated that the applicant no longer lived there. The authorities proceeded by summoning the applicant with a publication in the State Gazette in July 2002. As he did not appear in court, a lawyer was appointed ex officio to represent him. The lawyer attended the court hearing before the Sofia City Court which took place on 2 December 2002; it appears that she had no contact with the applicant at any point in time, either before or after the hearing. 11. In a judgment of 16 December 2002 the Sofia City Court allowed the claim, declaring the applicant the biological father of the child. The court also held that the child was to carry the applicant’s names (as a patronymic and family name) and determined a monthly amount of child maintenance which the applicant had to pay. The court remained silent on the request for blood tests made by the applicant’s former wife. Instead, it based its findings on the date of the child’s birth and on testimony submitted by the applicant’s former wife’s cousin and aunt. The latter stated that, at the time of the child’s conception, the mother had been in an intimate relationship only with him. The court held that this was sufficient to conclude that the applicant was the child’s father. The applicant was also ordered to pay about 50 euros (EUR) in legal fees to each of the ex officio lawyers appointed by the court to represent him and the child respectively. 12. On 19 December 2002 the Sofia City Court prepared two notifications of the judgment, one for the attention of the applicant and another for the attention of the child. The notification to the child was handed in person to the child’s lawyer on 8 January 2003. As for the notification to the applicant, on 13 January 2003 a court officer indicated on the court papers for notification that according to information from the applicant’s neighbours he no longer lived at his “permanent address” and no new address was known for him. On 16 January 2003 the court ordered that the notification be sent to the applicant’s ex officio lawyer; the latter was personally served a notice of the judgment on 18 January 2003. The notice indicated that an appeal against the judgment could be filed within 14 days from the moment of notification. The applicant’s ex officio lawyer did not appeal against the judgment and it became final. 13. The applicant found out about the judgment on 26 April 2004 when he was informed, at his “permanent address”, of his obligation to pay child maintenance in accordance with a writ of execution following the 2002 Sofia City Court judgment. A later certificate, issued on 25 May 2011 by the bailiff service and enclosed in the case file, indicated that no payments had been received in connection with the writ. 14. On 26 July 2004, the applicant filed a request for reopening, relying on Article 231 (e) and Article 231 (ж) of the Code of Civil Procedure 1952 in force at the time (see paragraph 28 below). He claimed in particular that he had been deprived of the opportunity personally to participate in the court proceedings in which he had been declared the father of the child. 15. The Supreme Court of Cassation (SCC) examined his request for reopening. It observed that the applicant had only learned about the Sofia City Court 2002 decision on 26 April 2004. It found his request for reopening procedurally admissible as lodged within the statutory time-limit. Nevertheless, the SCC rejected the request on the ground that the procedure for summoning him to the hearing had been observed, namely, attempted service at the applicant’s last known address and publication in the State Gazette. The Court also noted that a legal representative had been appointed ex officio and had represented the applicant during the proceedings. The court concluded, in a final judgment of 11 November 2005, that the applicant’s right to take part in those proceedings and to exercise his defence had not been infringed.