CASE OF SHOFMAN v. RUSSIA
Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Christos Rozakis
8. The applicant was born in 1957 and lives in Gross-Rohrheim (Germany). 9. On 10 August 1989 the applicant registered his marriage with Ms G. in Novosibirsk. After the marriage they moved to St. Petersburg. 10. On 12 May 1995, during her stay at her parents’ home in Novosibirsk, Ms G. gave birth to a son to whom she gave her surname, despite objections from the applicant. Shortly thereafter the birth was registered; the applicant was named as the child’s father in the register. 11. In late September 1995 Ms G. and her son returned to St. Petersburg. The applicant believed that he was the boy’s father and treated him as his own. 12. On 28 March 1996 the applicant moved to Germany. Until September 1997 he waited for Ms G. and the son to join him there. However, in a letter of September 1997, Ms G. informed him that she had no plans to continue their marriage and would be applying for maintenance for the child. At about that time the applicant’s relatives in Novosibirsk advised him that he was not the boy’s father. 13. On 16 December 1997 the applicant petitioned for divorce and brought an action contesting paternity. On 12 April 1999 the divorce was granted. 14. On 16 November 2000 the Zheleznodorozhniy District Court of Novosibirsk delivered judgment in the paternity action. It noted that genetic (DNA) tests of 28 June 1999 and 5 June 2000 demonstrated that the applicant could not be the boy’s father. Although Ms G. maintained that the applicant was the father, in the absence of any doubts as to the accuracy of the tests, the court established that the applicant was not the father of her son. The District Court ruled, however, that the case was governed by the RSFSR Marriage and Family Code of 30 July 1969 because the child had been born before 1 March 1996, that is to say before the new Family Code of the Russian Federation came into effect. The RSFSR Marriage and Family Code set a one-year limitation period for an action contesting paternity, the starting point of which was calculated from the date the putative father was informed that he had been registered as the father. As the applicant had not contested paternity when the child was born and had only applied to the courts in December 1997, after the expiry of the time-limit, his action was held to be time-barred. The fact that a new Family Code had been introduced which did not lay down a limitation period for paternity actions was irrelevant because it was only applicable to family-law disputes arising after 1 March 1996. 15. On 15 March 2001, on an appeal by the applicant, the Novosibirsk Regional Court upheld the judgment of 16 November 2000. 16. On 20 April and 26 October 2001 the Novosibirsk Regional Court and the Supreme Court of the Russian Federation, respectively, refused requests by the applicant for supervisory review. 17. On 12 September 2002 the Justice of the Peace of the Third Court Circuit of the Zheleznodorozhniy District of Novosibirsk granted Ms G.’s claim for maintenance and made a charging order over the applicant’s interest in a flat. 18. On 15 September 2003 the Zheleznodorozhniy District Court of Novosibirsk upheld the maintenance order. 19. The RSFSR Marriage and Family Code of 30 July 1969 (Кодекс РСФСР о браке и семье) provided that a person entered in the birth register as the father of a child could contest the entry within one year of the date he became or should have become aware that the entry had been made (Article 49). 20. The Family Code of the Russian Federation of 29 December 1995 (Семейный кодекс РФ, in force from 1 March 1996) provides that a person entered in the birth register as the father of a child may contest the entry by means of judicial proceedings (Article 52 § 1). It does not set any time-limit for bringing an action. 21. Resolution no. 9 of the Plenary Supreme Court of the Russian Federation of 25 October 1996 “On application by courts of the Family Code of the Russian Federation to the cases concerning paternity and maintenance” established that, in respect of children born before 1 March 1996, the RSFSR Marriage and Family Code was applicable and, accordingly, the time-limit for contesting paternity was one year from the date the person became or should have become aware of his registration as the child’s parent.