CASE OF BACKLUND v. FINLAND
Violation of Art. 8;Pecuniary damage - reserved;Non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1937 and lives in Norrnäs. 6. The applicant was born out of wedlock. His mother, grandmother and everyone around him always considered N.S. as his father. N.S. never married or had other children. 7. On 1 October 1976 the Paternity Act came into force. The transitional provisions in the Implementing Act of the Paternity Act state that paternity proceedings with regard to a child born before the entry into force of the law had to be initiated within five years, that is, before 1 October 1981. Moreover, no claim could be examined after the death of the father. No such restrictions exist for children born after the entry into force of the Paternity Act. 8. N.S. was placed under guardianship in 2000. 9. In May 2002 the applicant requested the Korsholm District Court (käräjäoikeus, tingsrätten) to establish paternity. The court ordered DNA tests, which established with 99.4 % certainty that N.S. was the applicant's biological father. 10. On 7 April 2003 the District Court dismissed the applicant's claim. It found that as the applicant was born before the entry into force of the Paternity Act, he should have lodged his claim within the time-limit of five years, that is, before 1 October 1981. As he had lodged his claim only in May 2002, his claim was time-barred. 11. The applicant appealed to the Vasa Appeal Court (hovioikeus, hovrätten) claiming, inter alia, that the paternity of N.S. could not be established otherwise as, due to his state of health, he could no longer make a legally valid acknowledgement of paternity with respect to the applicant. This fact would place the applicant in a worse position vis-à-vis the children who were born after the entry into force of the Paternity Act. N.S's guardian supported the claim to have paternity established. 12. N.S. died in March 2004 while the case was pending before the Appeal Court. The inventory of his estate was made in June 2004. The estate, worth some 140,500 euros, was divided among N.S.'s siblings and their heirs. 13. On 8 July 2004 the Appeal Court dismissed the applicant's appeal. 14. The applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating his grounds of appeal already presented before the Appeal Court. 15. On 14 April 2005 the Supreme Court refused leave to appeal. 16. The Constitution of Finland (perustuslaki, grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to everyone equality before the law and forbids discrimination of any kind: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on grounds of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. ...” 17. Article 21, paragraph 1, of the Constitution guarantees to everyone the right to have one's case dealt with by a court of law: “Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ...” 18. Article 106 of the Constitution gives a court of law the right to give primacy to the Constitution when the application of an Act would conflict with the Constitution: “If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court shall give primacy to the provision in the Constitution.” 19. According to section 20 of the Act on Children Born out of Wedlock (laki avioliiton ulkopuolella syntyneistä lapsista, lagen om barn utom äktenskap, Act no. 173/1922), a child born out of wedlock had a father, if a man acknowledged paternity, but paternity could not be established against a man's will. According to section 24 of the same Act, such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child's mother at the time when the child was possibly conceived. However, such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse. 20. As the children born out of wedlock were put in a substantially worse position than the children born in wedlock, there was a need to guarantee equal treatment of all children before the law (see government proposal HE 90/1974). This became the main aim of the new Paternity Act of 1975 (isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the Act of 1922. 21. Section 3 of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision. According to section 22, subsection 1, the child has a right to institute proceedings with a view to having paternity established. 22. Section 4 of the Implementing Act of the Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om faderskap, Act no. 701/1975) provides that the provisions of the Paternity Act shall also apply if the child was born before the entry into force of the Act, unless otherwise provided below. Section 5 provides that if a man, pursuant to the Act on Children Born out of Wedlock, enacted before the entry into force of the Paternity Act, has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child, the provisions in sections 6 and 7 of this Act shall apply to the investigation of paternity, actions for the establishment of paternity and the exercise of the child's right to be heard. 23. Sections 6 and 7 of the Implementing Act of the Paternity Act provide as follows: “The child welfare supervisor shall attend to the investigation of paternity as provided in the Paternity Act, if a child born before the entry into force of this Act has not reached fifteen years of age and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity. After a man has acknowledged his paternity, the provisions in section 5, subsection 2; section 20, subsection 1; and section 21 of the Paternity Act shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity, and to the enforcement of acknowledgement.” “A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in the Paternity Act. The child welfare supervisor shall not be entitled to exercise the child's right to be heard without a separate authorisation. Proceedings for the establishment of paternity must be initiated within five years from the entry into force of the Paternity Act. However, no proceedings may be instituted if the man is deceased.” 24. It appears from the drafting history of the Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that considerations of legal certainty underlay the decision to restrict the right of action. The entry into force of the Act opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived. The legislator considered that putative fathers' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of the Paternity Act. The restriction that a man's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man's paternity. 25. The Supreme Court has held on several occasions that the five-year time-limit in question is to be strictly applied (see for example KKO 2003:107). An exception has been made in a case where the paternity of the mother's husband had to be annulled first and, as a result of that, the child would have become fatherless if the time-limit had been strictly respected (see KKO 1993:58). 26. In its precedent case KKO 1982-II-165 the Supreme Court considered that the five-year time-limit in section 7, subsection 2, of the Implementing Act of the Paternity Act was not such a time-limit that could be restored by seeking extraordinary remedies (menetetyn määräajan palauttaminen, återställandet av försutten fatalietid).