CASE OF JÜSSI OSAWE v. ESTONIA
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1979 and lives in Tallinn. 6. On 29 June 2005 the applicant and O., a Nigerian national, married in Copenhagen, Denmark, where they were living at that time. 7. Since 1 November 2005 they have lived apart. According to the applicant, in 2006 she initiated proceedings for dissolution of the marriage in Denmark. By a decision of 2 November 2007 the Copenhagen City Court decided to grant the applicant separation from O. – which in Danish law is not identical to a divorce, since the spouses remained legally married. According to the decision O. was thought to be in Nigeria; he had been summoned to court by a public notice but had not appeared. It appears that the marriage between the applicant and O. has not been officially dissolved. 8. In September 2008 the applicant moved to Estonia. On 4 October 2008 she gave birth to a daughter, A., whose father, according to the applicant, was D. When registering the birth, the applicant was told by the officials of the municipality that since she was married, her husband O. would be registered as the child’s father. According to the applicant this was done despite her objections. 9. On 28 September 2009 the applicant lodged a claim with the Harju County Court seeking a declaration that the entry in the birth register concerning her daughter’s father was incorrect. She provided the court with a notice from the Copenhagen population register about O.’s registered address but added that in fact O. no longer lived there and she did not know his actual address. She asked the court to serve the summons on the defendant by a public notice. 10. By a decision of 15 December 2009 the County Court declined to proceed with the examination of the claim. It noted that the applicant had paid 1,000 kroons (EEK) (approximately 64 euros (EUR)) in State fees instead of the applicable fee of EEK 5,000 (EUR 320). The County Court gave the applicant a thirty-day time-limit to pay the remaining part of the fee. It also gave the applicant the same time-limit to find out where O. currently lived. The court noted that in accordance with the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), in filiation cases parties had to appear in court in person and they also had to be summoned personally. Accordingly, the court could not proceed with the claim without having information about the defendant’s address. The court noted that in view of the fact that the defendant was a Nigerian national probably living in Denmark, it was likely that the defendant had to be heard in a court in the place of his residence in line with the provisions of EU Council Regulation no. 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. However, for that it was necessary to ascertain where O. was residing. The court noted that it was the plaintiff’s obligation to find out where O. actually lived; it considered that the applicant’s efforts in this respect had not been sufficient. It referred to the fact that O. was the applicant’s husband and that divorce proceedings were pending before a Danish court, and concluded that the applicant had better chances of ascertaining O.’s whereabouts, for example through his acquaintances, relatives and colleagues. 11. On 30 December 2009 the applicant requested the County Court to declare unconstitutional the provisions of the Code of Civil Procedure related to the State fee and the requirement that the defendant be summoned and that he appear in court in person. She also informed the court of her intention to request information from the Danish police as to the defendant’s residence and asked for an extension of the time-limit to rectify the deficiencies in her claim indicated by the County Court in its decision of 15 December 2009. 12. By a decision of 12 February 2010 the County Court dismissed the applicant’s request concerning the alleged unconstitutionality of the provisions of the Code of Civil Procedure. It acceded to the applicant’s request for the extension of the time-limit. 13. It appears that the applicant did not inform the County Court of whether she had made any inquiries about O.’s whereabouts to the Danish authorities or of the results of any such inquiries. 14. On 16 April 2010 the County Court declined to entertain the case since the applicant had failed to eliminate the deficiencies indicated in its earlier decisions. The applicant did not lodge an appeal against that decision. 15. In the meantime, on 18 March 2010, the applicant lodged a new claim with the Harju County Court seeking the establishment of her daughter’s filiation from D., a British national living in the United Kingdom. She asked the court to order that a DNA test be carried out with the assistance of the British authorities. The applicant supplied the court with D.’s and his parents’ addresses. 16. On 20 April 2010 the County Court refused to examine the claim. Referring to the Supreme Court’s case-law (judgment of 12 September 1996, case no. 3-2-3-20-96), the County Court found that it was not legally possible to establish the child’s filiation from D. without the entry in the birth register, according to which her father was O., having been declared incorrect beforehand. The claims could not be examined simultaneously. 17. The applicant appealed. On 17 June 2010 the Tallinn Court of Appeal dismissed the appeal. 18. The applicant appealed to the Supreme Court, which decided not to examine the appeal on 8 September 2010.