CASE OF RÓŻAŃSKI v. POLAND
Violation of Art. 8;Non-pecuniary damage - financial award
Christos Rozakis
9. The applicant was born in 1960 and lives in Gdańsk. 10. From 1990 to 1994 the applicant lived with B.F. On 29 August 1992 B.F. had a baby, a boy D. He was registered at the Birth Register as having “Stanisław F.” as father, i.e. a fictitious name, consisting of the applicant’s first name and the mother’s surname. 11. In April 1994 the relationship ended. B.F. left the child with the applicant and disappeared for over a month. The applicant submits a copy of a letter, in which B.F. states that she leaves him and the boy and that they should now fend for themselves. As the child subsequently fell ill, the applicant took him to a hospital. B.F. took D. from the hospital on 21 May 1994. She then stayed in hiding for several months. Since then the applicant has not had any contacts with the child. 12. Prior to this, on 18 April 1994, the applicant lodged a motion with the Gdańsk District Court, claiming that the paternity of D. be established and submitting that he was his biological father. He was subsequently summoned by the court to submit certain documents in order to have a guardian appointed who would bring a paternity action on the child’s behalf as under the domestic law the alleged biological father, not married to the mother, lacked standing in paternity proceedings. The applicant failed to do so. 13. In a note of 20 May 1994 the Gdańsk Social Assistance Centre informed the family court about the situation of D. and requested it to take steps to supervise B.F. in her exercise of parental rights. The social assistance officer also referred in her note to the applicant and stated that, in the light of the information received from his sister, in her view he would be unable to take adequate care of the child. 14. Subsequently the Gdańsk District Court instituted custody proceedings concerning D. By a decision of 26 May 1994 the court ordered that D. be taken into public care. Apparently shortly afterwards this decision was revoked. 15. In August 1994 the Gdańsk District Court requested the prosecuting authorities to investigate whether B.F. had committed a criminal offence by exposing D. to immediate danger of serious bodily injury. Such investigations were instituted in November 1995. 16. By a decision of 27 January 1995 the District Court gave a new decision on the basis of which D. was taken into public care. The custody rights of B.F. were restricted and she was only allowed to visit him. The applicant was not a party to the proceedings. B.F. refused to give D. away when police officers came to take him to a children’s home. 17. On that date the applicant lodged a new motion with the District Court to have a guardian appointed to represent D. for the purposes of the paternity proceedings. 18. Prior to that, on 9 January 1995, the applicant requested the Gdańsk District Prosecutor to institute on his behalf proceedings to have his paternity established in respect of D. In a reply of 5 May 1995, the prosecutor recalled that the applicant, by a motion of 27 January 1995, had requested the civil court to appoint a guardian for the child for the purpose of instituting the paternity proceedings, and that therefore it would not be advisable that the prosecuting authorities considered the applicant’s request, which, if successful, would lead to two parallel sets of proceedings pending at the same time, both concerning the determination of the applicant’s paternity in respect of D. 19. In July 1995 the Court rejected the applicant’s motion of 27 January 1995 because he had failed to pay the court fee. Subsequently, the applicant paid the fee and the proceedings were resumed. 20. At a hearing held on 10 November 1995 the applicant withdrew his motion to have a guardian appointed and the court discontinued the proceedings. 21. On 15 March 1996 B.F. declared before the Gdańsk District Court that her new partner J.M. was D’s biological father. On 18 March 1996 she lodged a motion with the District Court to have her full parental rights restored. By a decision of 26 March 1996 the District Court revoked its decision of 27 January 1995 to take D. into public care and ordered that he could stay with her until the termination of the proceedings, considering that since her living conditions had improved, she would be capable of taking adequate care of D. until a final decision on the merits be given. 22. By a decision of 10 July 1996 the District Court restricted B.F.’s parental rights by appointing a guardian to supervise her in the exercise of her rights. 23. On 15 July 1996 the new partner of B.F., J. M., was acknowledged as D.’s legal father, following his recognition of paternity. 24. On 8 August 1996 the applicant lodged with the Gdańsk District Prosecutor a request to institute investigations concerning his parental rights. He alleged that criminal offences had been committed in connection with the relevant proceedings. By a decision of 30 August 1996 the prosecution authorities refused to institute investigations, finding that no laws had been breached in connection with determination of the applicant’s parental rights. 25. On 8 August 1996 the applicant lodged another motion with the District Court, asking again for the appointment of a guardian to represent the child for the purpose of instituting paternity proceedings. By a decision of 15 November 1996 the District Court dismissed it, stating that the applicant had no right of action, since following the declaration of 15 July 1996 it was J.M. who was D.’s legal father. 26. On 12 November 1996 the applicant again requested the prosecutor to institute criminal proceedings, alleging that the birth certificate of D. had been forged. On 20 December 1996 the Gdańsk District Prosecutor refused to do so, finding that the child’s birth certificate had been amended following the recognition of the paternity of D. by his mother’s new partner J.M. The prosecutor observed that under the applicable laws recognition of a child was only possible if the mother gave her consent thereto. No criminal offence had been committed in that D.’s certificate had been rectified to reflect the recognition of paternity, effected with his mother’s consent. 27. The applicant appealed against the prosecutor’s decision. On 15 May 1997 the appellate prosecutor dismissed his appeal. 28. On 15 January 1997 the applicant challenged the decision of the Gdańsk District Court of 15 November 1996 by which it had stated that in view of the fact that J.M. had recognised his paternity of D., the applicant had no standing to bring paternity proceedings. On 29 January 1997 the court dismissed his appeal. 29. In a letter of 22 January 1997 the President of the Gdańsk District Court informed the applicant that the paternity proceedings had been discontinued due to the fact that B.F.’s new partner had recognised his paternity in respect of the child. 30. On 30 October 1997 the applicant complained to the Court of Appeal that the Gdańsk District Court failed to take steps in the interest of the child in order to have the applicant’s paternity recognised. He submitted that he did not have access to the child, although he was his biological father. He argued that the parental skills of B.F. were inadequate as shown by the fact that her two other children K. and T. had been placed with a foster family; that in 1994 she had left the child with him and disappeared for over a month, and that the man who had recognised D. as his child was a habitual offender. He emphasised that the court relied only on the submissions of the mother, disregarding entirely his interests as a biological father of the child, and failed to take the child’s best interests properly into consideration. 31. In a letter of 1 December 1997 of the President of the Gdańsk Court of Appeal, the applicant was informed that a copy of the decision of 15 November 1996 by which the District Court had dismissed the applicant’s request to have a guardian for the child appointed for the institution of paternity proceedings, had been sent to a wrong address. Therefore, the decision should be served again on the applicant. The applicant was further informed that the Gdańsk District Court had, on 18 April 1997, restricted the parental rights of B.F. and J.M. in respect of D. in that a guardian had been appointed to supervise them in the exercise of their parental rights. 32. By letters of 22 December 1997 and 7 January 1998 the President of the Court of Appeal informed the applicant that his further complaints concerning the conduct of the District Court as regards D. were unfounded, and that it was J.M. who was the father of the child. 33. In a letter of 12 January 1998 the Gdańsk Regional Prosecutor recalled that the applicant’s request to institute proceedings on his behalf in order to have him recognised as a biological father of D had been refused on 5 May 1995 as it was not in the child’s best interest. 34. On 6 November 1998 the Ministry of Justice informed the applicant, in reply to his complaints, that the case-files concerning the child had been reviewed and the applicant’s complaints about the failure to examine his position as a biological father of D. were unfounded. 35. The applicant does not have any access to the child. 36. Article 47 of the Constitution provides that “(e) everyone shall have the right to legal protection of his private and family life, of his honour and good reputation, and to make decisions about his personal life.” 37. Pursuant to Article 48, parents shall have the right to educate their children in accordance with their own convictions. Such upbringing shall respect the degree of maturity of a child as well as his freedom of conscience. Limitation or deprivation of parental rights may be effected only in the instances specified by statute and only on the basis of a final judicial decision. 38. Article 72 of the Constitution provides that “the Republic of Poland shall ensure protection of the rights of children.” 39. Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers. 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”. 40. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the judgment of the Constitutional Court. 41. Article 72 of the Code reads: “If there is no legal presumption in operation that the mother’s husband is the father of her child, or if such presumption has been rebutted, the paternity of the child may be established by the recognition of paternity by the father, or by a decision of a court.” 42. A declaration recognising paternity of a child can be made before a registrar of a local births, marriages and deaths register office. 43. Article 77 § 1 reads: “The recognition of paternity in respect of a minor child should be subject to the approval of its mother. On the death of the mother, or if her parental rights have been withdrawn, or if a contact with her is impossible, a court appointed guardian shall give consent to the recognition of paternity.” 44. Pursuant to Articles 80 to 83, an action to have the recognition of a child declared null and void can be brought by the mother, by the child and by the man who recognised his paternity. Under Article 86 the prosecutor may also bring an action to have the recognition of a child declared null and void. 45. Under Articles 84 and 86 of the Code, an action to establish paternity may be brought by the mother or by the child, or by the prosecutor. 46. Article 99 of the Code provides that a guardian can be appointed by the family court to represent the child, if neither of the parents can represent it in judicial proceedings. 47. In its judgment of 28 April 2003 (K 18/02) the Constitutional Court ruled on the Ombudsman’s request to have Article 77 of the Family and Custody Code and Article 84 § 1 of that Code declared incompatible with the Constitution. The Ombudsman argued that the fact that a biological father did not have standing to lodge himself with a court an action to have his paternity recognised in respect of an out-of-wedlock child and that such action on behalf of a father could be only brought by the public prosecutor, breached the father’s right to have access to a court, guaranteed by the Constitution. It was further argued that this restriction on access to a court was in violation of these provisions of the Constitution which guaranteed respect for private and family life. 48. The Constitutional Court observed that the Constitution does not regulate the issue of methods to be applied in order to establish filiation of children to whom a presumption of paternity of the mother’s husband did not apply. This matter is left to be regulated by statute. Nevertheless, the constitutional principle of protecting the child’s best interest, enshrined in Article 72 of the Constitution, indicated preference as to the manner in which legal procedures to establish filiation should be shaped, namely so as to allow legal filiation to be determined in accordance with child’s biological parentage. 49. The Constitutional Court observed that under Article 77 § 1 of the Custody and Family Code the recognition of paternity by way of unilateral declaration of a putative biological father was subject to the mother’s consent. 50. The Constitutional Court observed that the decision of the legislature to make the effectiveness of recognition of paternity by a declaration made under this provision conditional on the mother’s consent was justified by the need to protect mother’s personal rights. Had the requirement of consent been removed, it would create a situation in which a man would be the sole person capable of establishing the child’s filiation. This could result in creation of legal bonds inconsistent with biological reality and, also, expose the mother to the risk of harassment by a man claiming to be a biological father of her child. However, the Constitutional Court considered that it would not be justified to introduce a judicial control over the mother’s consent. This would ultimately lead to replacing the mother’s consent by consent given by a court, which would undermine the very reason for the existence of unilateral declaration of paternity as a special method of establishing legal ties between the father and child. 51. The Constitutional Court further considered that the lack of standing before a court for a man claiming to be the biological father of a child and trying to have his paternity recognised in law in procedure provided for by Article 84 of the Custody and Family Code had to be seen in the light of the fact that the recognition of paternity by way of declaration was conditional on the mother’s consent, referred to above. 52. The necessity of the mother’s consent, on the one hand, and the lack of standing before the court to have one’s paternity recognised in law on the other resulted in a situation in which, in the absence of such a consent, a biological father would be deprived of any possibility of creating legal ties between himself and his child, either by way of declaration or by instituting paternity proceedings. The Constitutional Court emphasised that a decision of the prosecuting authorities to institute proceedings with a view to creating such ties was left entirely to their discretion. All these factors taken together led the Court to the conclusion that the lack of standing before a court of the biological father in proceedings to have his biological paternity recognised in law were in breach of Article 72 of the Constitution, providing for protection of the children’s rights as a constitutional principle. It was further stated that this was also in breach of the father’s right to respect for his private and family life, guaranteed by Article 47 of the Constitution. Moreover, these provisions breached Article 45 of the Constitution, guaranteeing the right of access to a court.