CASE OF NOVOTNÝ v. THE CZECH REPUBLIC
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković
5. The applicant was born in 1942 and lives in Batelov. 6. In 1965 he had a sexual relationship with a woman who gave birth to a daughter, Z., on 2 March 1966. 7. As the applicant denied that he was the father, Z.’s legal guardian brought proceedings on her behalf in the Jihlava District Court (okresní soud) for a declaration of paternity. 8. After giving birth to Z., but before initiating the aforementioned proceedings, the mother married another man. 9. On 23 April 1970 the District Court found that the applicant was Z.’s father and ordered him to contribute to her maintenance. 10. The court reached its finding after hearing evidence from several witnesses. It also had regard to documentary evidence and took into consideration the results of a blood test known as a “bio-hereditary test” (dědicko-biologická zkouška). In addition, it established that the applicant had had intercourse with the mother sometime between 300 and 180 days before Z.’s birth. In such cases, a presumption of paternity arose under Article 54 of the Family Code, unless there were clear grounds to rebut the presumption. Another man had also had intercourse with the mother at the crucial time, however, the blood test established that he was not the father. 11. The applicant lodged an appeal with the Brno Regional Court (krajský soud) and requested another expert opinion. The Regional Court denied the request because the facts had been proved to a sufficient degree. It eventually upheld the judgment of the District Court on 2 June 1970, which became final on 10 June 1970. 12. In 2011 the applicant requested that the Prosecutor General (Nejvyšší státní zástupce) challenge his paternity in court. By a letter of 21 June 2011 he was informed that the requirements of Article 62 of the Family Code to initiate such proceedings had not been met. Z., by that time an adult, did not want to challenge paternity, it was not in her interests and the applicant had not produced any expert evidence credibly disproving it. 13. On 29 February 2012 the applicant and Z. underwent a DNA examination. The resulting report of 19 April 2012 unequivocally confirmed that the applicant was not Z.’s father. 14. On 9 May 2012 the applicant submitted a new request to the Prosecutor General to challenge his paternity in court. 15. On 12 September 2012 the Prosecutor General informed the applicant that the determination of his paternity had been decided by the Jihlava District Court under Article 54 of the Family Code and that therefore the prosecution service could not initiate proceedings under Article 62 and 62a of the Family Code. The Prosecutor General only had that specific competence as regards statutory presumptions of paternity under Articles 51 § 1 and 52 of the Family Code. When paternity had been established by a judicial declaration under Article 54 of that Code and the judgment had come into legal force, as in the applicant’s case, the law did not provide for any possibility to challenge it. 16. Relying on his rights under Article 6 § 1 of the Convention, the applicant lodged a constitutional complaint (ústavní stížnost) against the Prosecutor General’s decision of 12 September 2012. He maintained that he had proved that he was not Z.’s biological father and requested that the Constitutional Court (Ústavní soud) order the Prosecutor General to initiate proceedings and challenge his paternity. He also argued that Articles 61 § 1 and 62 § 1 of the Family Code were unconstitutional. 17. On 13 December 2012 the Constitutional Court dismissed the applicant’s complaint. It noted that his paternity had been established by a judicial decision which had come into legal force and stated, inter alia, that the competence of the Prosecutor General could only apply if all the legal requirements had been fulfilled, which was not, however, the applicant’s case.