X AND OTHERS v. LATVIA
Inadmissible
Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits
1. The applicants are three Latvian nationals. They were represented before the Court by Ms A. Rektiņa, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3. The first applicant is the third applicant’s biological mother. The third applicant – a child – was born out of wedlock in January 2004. The second applicant does not live with the child and his mother. According to the applicants, the child nevertheless recognises the second applicant as his father. 4. On 1 June 2006 S.G. lodged an action with the Riga City Vidzeme District Court seeking to establish his paternity of the third applicant, submitting that he was the biological father. 5. On the following day – 2 June 2006 – the second applicant officially acknowledged his paternity of the third applicant. 6. On 9 May 2007 the Riga City Vidzeme District Court adopted a judgment in which it dismissed S.G.’s claims in full. The first applicant was the respondent and the second applicant was a third party in the civil proceedings. The court held the corresponding provision of the Civil Procedure Law did not give S.G. the standing to dispute in court a voluntary acknowledgement of paternity. 7. S.G. appealed to the Riga Regional Court and later – on 10 October 2007 – requested the same court to order genetic (DNA) testing in order to establish whether the second applicant or S.G. was the biological father of the child. 8. On the same day, 10 October 2007, the Riga Regional Court held a hearing and adopted a decision to order the genetic testing of S.G., the second applicant and the third applicant in order to verify the child’s biological descent. According to the court, it was necessary to order genetic testing because the second applicant had acknowledged paternity of the child only after S.G. had already lodged the action with the court. For that reason it was held that S.G. had standing to bring a claim to determine paternity. The decision to order genetic testing was not subject to appeal in accordance with the provisions of the Civil Procedure Law. On 22 October 2007 a copy of the record of the hearing was sent to the applicant’s representative. 9. On 12 November 2007 the applicants, relying on sections 483 and 484 of the Civil Procedure Law, submitted a request to the President of the Civil Division of the Senate of the Supreme Court asking him to lodge a protest against the order of the Riga Regional Court. They claimed, inter alia, that in giving the order for genetic testing the Riga Regional Court had failed to take into consideration the interests of the child and the second applicant’s right to respect for his private and family life. 10. On 20 December 2007 the President of the Civil Division of the Senate of the Supreme Court lodged a protest, citing several violations of procedural and substantive law, notably that: the contested order had been issued prior to the examination on the merits of the civil case; the decision had not been prepared in accordance with the procedure set out by the Civil Procedure Law; and the court had not examined whether the medical laboratory was authorised to carry out such tests. In particular, the wording of the protest noted that at the time of the examination of the case the child’s paternity had been voluntarily acknowledged, whereas the claimant – S.G. – had not challenged the paternity. 11. On 5 March 2008 the Senate of the Supreme Court, relying on section 448 of the Civil Procedure Law, dismissed the protest. The Senate considered that the claim submitted by S.G. had not been intended to challenge the paternity of the second applicant; rather, it considered that the claim had been submitted in order to determine S. G.’s paternity. The Senate argued that the second applicant had recognised his paternity only after S.G. had lodged his action and that therefore, the question of S.G.’s standing would only fall to be examined when the case was examined on the merits. The Senate also disagreed that procedural violations such as those alleged in the protest were decisive for the outcome of the case. 12. Section 483 (as worded at the material time) provided that a protest against a court judgment and/or decision that had taken effect might be submitted to the Senate of the Supreme Court by the President of the Supreme Court, by the President of the Civil Division of the Senate of the Supreme Court or by the Prosecutor General, provided that no more than ten years had passed since the ruling took effect. 13. Section 484 provides that admissible grounds for submitting a protest regarding a ruling (a judgment or decision) that has taken effect are: substantive breaches of material or procedural legal provisions in cases which have been adjudicated only by a first-instance court (provided that no appeal against the ruling has been lodged by the parties to the case in accordance with the law, for reasons beyond their control), or the rights of State or municipal institutions or persons who were not parties to the case have been affected by the ruling. 14. Section 448 sets out the jurisdiction of the Senate when reviewing an ancillary complaint. It follows from the domestic courts’ practice that the Senate has the same jurisdiction when reviewing a protest. In particular, the Senate may adopt the following decisions: 1) to uphold the lower court’s decision and dismiss the appeal or protest; 2) to quash the decision, in whole or in part, and remit it to the lower court for fresh examination; 3) to quash the decision, in whole or in part, and decide the question on the merits; 4) to amend the decision.