CASE OF VEISS v. LATVIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1965 and lives in Riga. 6. The applicant had been living with A.Z. since the summer of 2005. They were not married. In the course of that year, A.Z. became pregnant. After the birth of A.E.Z. on 24 May 2006, the applicant continued to care for the child and to support A.Z. and the child financially, including paying the rent and utility bills for the apartment in which they were residing. 7. On an unspecified date the applicant suggested to A.Z. that they officially register the birth of A.E.Z. and record the applicant’s paternity in the register of births. A.Z. refused. 8. The applicant informed A.Z. that he would try to have his paternity established by the courts. 9. Starting from 13 January 2007 A.Z. no longer permitted the applicant to meet the child. 10. On 15 January 2007 the applicant consulted a lawyer and on the same day requested a copy of a report of the registration of the child’s birth (izziņa par bērna dzimšanas reģistrāciju) from a civil registry office (dzimtsarakstu nodaļa). He received the requested report on 18 January 2007 and found out that the previous day, on 17 January 2007, a certain A.L. had voluntarily acknowledged his paternity and had been registered as the child’s father. According to the applicant, he did not know who A.L. was. 11. On 8 February 2007 the applicant lodged a claim with the Riga City Zemgale District Court. He asked the court to order forensic biological testing in order to establish the child’s descent, to strike the record of A.L.as the father of the child and to record himself, the applicant, as the child’s father instead. 12. On 4 April 2007 A.Z. and A.L. submitted a response, arguing that the fact that civil proceedings had been instituted had infringed their rights guaranteed by, inter alia, Article 8 of the Convention. The respondents also argued that the applicant lacked standing to contest paternity and denied that he had ever co-habited with A.Z. 13. The Zemgale District Court held hearings on 28 June, 31 August and 12 September 2007. On 13 September 2007 it decided to discontinue the proceedings. The court agreed with the respondents that the applicant lacked standing to contest a voluntary acknowledgement of paternity. It reached that conclusion by interpreting the Civil Law in conjunction with the Convention on the Legal Status of Children Born out of Wedlock (“the Legal Status Convention”) and the 11 October 2004 judgment of the Latvian Constitutional Court, and found that the restrictions in section 156 of the Civil Law (see paragraph 53 below) were not contrary to the Legal Status Convention. 14. The applicant appealed on 24 September 2007. On 27 September 2007 the case was forwarded to the Riga Regional Court, which held hearings on 17 January and 22 September 2008, and quashed the lower court’s decision by a decision adopted on the latter date. It was found that the lower court had erred in not ordering forensic biological testing. The case was remitted to the Zemgale District Court. 15. The first hearing in the Zemgale District Court was held on 12 November 2008 and was attended only by the applicant’s lawyer. The hearing was adjourned. The verbatim record of the hearing shows that the court decided to invite a representative of the Guardianship Tribunal (bāriņtiesa) to attend the following hearing. 16. According to the applicant’s lawyer, the question of involving the Guardianship Tribunal had not in fact been discussed in court and therefore she requested the removal of the judge in charge of the case. 17. On 26 November 2008 the judge withdrew from the case. The proceedings were accordingly adjourned. 18. The next hearing was held on 26 January 2009 and was attended by the applicant’s lawyer, the two respondents and their lawyer, as well as by a representative of the Guardianship Tribunal. 19. On 4 February 2009 the Zemgale District Court ordered forensic genetic testing and ordered the applicant, A.Z., A.L. and the child to submit the necessary samples of genetic material before 31 March 2009. 20. On 1 April 2009 the court was informed that the applicant had submitted a tissue sample on 6 February 2009, while A.Z., A.L. and the child had not appeared at the testing laboratory. 21. On 8 April 2009 the applicant asked the court to order that the respondents and the child be delivered for genetic testing under constraint. The hearing organised on 26 May 2009 to decide that question was adjourned because the respondents and their lawyer had not appeared in court. 22. In the course of the hearing of 15 June 2009 the court rejected the applicant’s request on the grounds that the child was not a party to the case and therefore his delivery under constraint could not be ordered. No ordinary appeal lay against that decision. The applicant’s representative requested that the proceedings be adjourned so that an extraordinary complaint could be lodged with the Prosecutor General. 23. On 26 June 2009 the applicant asked the Prosecutor General to lodge an extraordinary complaint (protests) about the decision of the Zemgale District Court. On 16 July 2009 the Prosecutor General granted the applicant’s request and asked the Senate of the Supreme Court to quash the 15 June 2009 decision. On 28 August 2009 the Senate accepted the Prosecutor General’s complaint for examination. 24. On 13 January 2010 the Senate decided to uphold the Prosecutor General’s complaint, to quash the Zemgale District Court’s decision and to remit the case to another judge of the same court. 25. After adjourning the hearing of 15 March 2010 owing to the respondents’ failure to appear in court, on 16 March 2010 the Zemgale District Court decided to grant the applicant’s request and to order the municipal police to deliver the respondents and the child for genetic testing under constraint. The court also fined A.L. and A.Z. 50 Latvian lati (LVL) each for failing to appear at the hearing without a justified reason. 26. On 10 May 2010 the applicant informed the court that the decision of 16 March did not appear to have been sent to the municipal police. 27. That omission was admitted by the court in a decision of 14 May 2010, by which the court decided to order the State police to deliver the respondents and the child for testing under constraint. 28. On 22 June 2010 the director of the testing laboratory informed the Zemgale District Court that a tissue sample had been taken from A.L. on 18 June 2010 but that A.Z. and the child had not appeared at the laboratory for testing. 29. According to a letter sent by the police to the court on 17 June 2010, on several occasions police officers had not found A.Z. and the child at their stated address and a neighbour had informed the police that a woman with a small child was not residing there. 30. On 5 July 2010 the applicant asked the Zemgale District Court to order a search (izsludināt meklēšanā) for A.Z. and the child. 31. On 15 July 2010 the Zemgale District Court examined the applicant’s request on the merits. The respondents were absent. The court fined A.L. and A.Z. LVL 50 each for failing to appear at the hearing without a justified reason. 32. By a decision of 20 July 2010 the court granted the applicant’s request. 33. On 8 October 2010 a genetic sample was taken from the child at the testing laboratory. 34. On 13 October 2010 the testing laboratory issued a report, finding that the probability that the applicant was the father of A.E.Z. was 99.9999141 % and that it was impossible that A.L. was the father. 35. The next hearing of the Zemgale District Court was held on 11 November 2010. 36. On 25 November 2010 the Zemgale District Court adopted a judgment by which it rejected the applicant’s claim. The court held that, even though the applicant was the child’s biological father, the Civil Law did not give him the right to contest a voluntary acknowledgement of paternity. 37. The applicant appealed on 15 December 2010. On 17 January 2011 the Riga Regional Court instituted appeal proceedings. The Regional Court held a hearing on 16 May 2011. 38. On 26 May 2011 the Regional Court decided to uphold the impugned judgment. In response to the applicant’s complaint that the overall length of the proceedings was excessive within the meaning of Article 6 § 1 of the Convention, the appeal court noted that such questions were outside its competence. 39. On 11 July 2011 the applicant submitted an appeal on points of law, complaining, inter alia, that the time taken by the first-instance court to examine his claim had been excessive. 40. On 26 October 2011 the applicant asked the Senate of the Supreme Court to expedite the examination of the case, referring to Article 6 § 1 of the Convention and the urgent nature of cases relating to the interests of children. The Senate instituted cassation proceedings on 29 December 2011. 41. The Senate held the first hearing on 7 March 2012. On 21 March 2012 the Senate decided to examine the case in an extended composition (paplašinātā tiesas sastāvā) of seven judges instead of the usual three-judge composition. A final decision was adopted by the Senate on 16 May 2012. 42. The Senate disagreed with the lower-level courts’ interpretation of section 156 of the Civil Law. It held that that section could not be interpreted so as to deny a biological father the right to contest a voluntary acknowledgement of paternity if the legal father had acknowledged paternity in the knowledge that he was not in fact the father of the child. On the other hand, having the standing to contest a voluntary acknowledgement of paternity did not mean that the claim should be automatically upheld, since the courts were obligated to balance the rights of the child and the rights of the biological father. 43. Turning to the facts of the specific case, the Senate noted that during the 16 May 2011 hearing of the appeal court, the representative of the Guardianship Tribunal had explained that the child was living in a “united family” (apvienotā ģimenē) and that upholding the applicant’s claim would be contrary to the child’s interests. The Senate found no reason to doubt the professional competence of the staff of the Guardianship Tribunal and agreed with its assessment of the interests of the child. 44. In conclusion, the Senate held that the appeal court had erred in deciding that the applicant lacked standing to contest the acknowledgment of paternity. However, “taking into account the unreasonable length of the proceedings”, the Senate, decided not to remit the case to the appeal court. The judgment of the appeal court was thus upheld. 45. The applicant submitted that after the decision became final, he learned of certain facts previously unknown to him. In particular, he found out that when the child was born and throughout the proceedings A.L. had been married to J.Z. and had five children in that marriage. In addition, from 2003 until March of 2012 A.L. had been living with yet another woman (D.B.) and several of his children from his marriage to J.Z. The applicant submitted to the Court a written statement from D.B. to that effect. 46. On 27 June 2012 the applicant submitted a complaint about the actions of representatives of the Guardianship Tribunal to the Children’s Rights Inspectorate (Valsts bērnu tiesību aizsardzības inspekcija). Among other things, he complained that the Guardianship Tribunal had come to the unsubstantiated conclusion that A.L. was living with A.Z. and the child, whereas in fact he had been living with another woman in a different town. 47. On 23 July 2012 the Inspectorate replied to the applicant, informing him that the Guardianship Tribunal was responsible for omissions (pieļāvusi trūkumus), which could have had a negative effect on the performance of its duty to protect the rights and legal interests of children. 48. On 2 October 2012 the applicant submitted the present application to the Court. 49. On 23 November 2012 the applicant requested that the Supreme Court reopen the proceedings in the light of the newly discovered circumstances, namely, the information set out in paragraph 45 above. 50. On 14 January 2013 the present application was communicated to the respondent Government. 51. On 5 March 2013 the Supreme Court examined the applicant’s request to reopen the proceedings and rejected it, finding that the circumstances invoked by the applicant could not be considered as “newly discovered” within the meaning of the Civil Procedure Law. 52. The applicant submitted an ancillary complaint and on 12 June 2013 the Senate of the Supreme Court quashed the decision of the Supreme Court, examined the applicant’s request on the merits and upheld it, quashing the decision of the Riga Regional Court of 26 May 2011 (see paragraph 38 above). The case was sent for fresh examination to the Riga City Zemgale District Court, which held the first hearing on 3 October 2013. The court decided to invite the Guardianship Tribunal to submit a report concerning the family situation of the child. The proceedings have been adjourned until 13 February 2014.