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THIRD
SECTION
CASE OF TAVLI v. TURKEY
(Application
no. 11449/02)
JUDGMENT
STRASBOURG
9
November 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Tavlı v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C.
Bîrsan,
Mrs A. Gyulumyan,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr V. Berger, Section Registrar,
Having
deliberated in private on 19 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11449/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Kazım Tavlı
(“the applicant”), on 1 February 2002.
- The
applicant was represented by Mr I. Baykan, a lawyer practising in
Aksaray. In the instant case, the Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
2 May 2005 the Court (Third Section) decided to communicate the
application to the Government. Under Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Dortmund, Germany.
- On
25 December 1980 the applicant registered his marriage with Ms A.
in Aksaray. Few months later the applicant moved to Germany to work.
- On 30 July 1981 Ms A. gave birth to a child, S. On
28 September 1981, soon after having been informed of the birth
of S., the applicant filed an action for rejection of paternity
before the Aksaray First Instance Court in Civil Matters. On 5
January 1982, based on the results of a blood test, the Ankara
University Forensic Institute concluded that it was likely that the
applicant was S.'s biological father.
- On
1 June 1982, in view of the medical report of the forensic institute
and considering the facts that the applicant and Ms A. had lived
together before the marriage, and that the child was born in wedlock,
the court dismissed the applicant's claim.
- On
6 June 1989 the marriage was dissolved by divorce. The court ordered
the applicant to pay an allowance of 1,500,000 Turkish liras (TRL)
and TRL 2,500,000 for the maintenance of S. and Ms A., respectively.
- On
4 March 1997 a DNA test was carried out in Germany which showed that
the applicant was not S.'s biological father.
- On
10 April 1997, relying on the findings of the DNA test, the applicant
filed an application before the Aksaray First Instance Court in Civil
Matters, requesting a retrial in his action for rejection of
paternity. The court ordered another DNA testing.
- In
the meantime, on 30 May 1997 Ms A. filed another action before the
same court, requesting to increase the allowance that the applicant
was ordered to pay for the maintenance of S. On 26 December 1997 the
Aksaray First Instance Court in Civil Matters decided to increase the
relevant amount to TRL 10,000,000. On 11 May 1998 the Court of
Cassation upheld this decision.
- The
forensic DNA test carried out in the Biology Department of the
Ministry of Justice confirmed the findings of the earlier test. The
report of 19 August 1998 concluded that the applicant was
not the biological father of S.
- On
20 May 1999 the Aksaray First Instance Court in Civil Matters
dismissed the applicant's request to annul the decision dated 1 June
1982 and to have a retrial. It interpreted Article 445 § 1 of
the Code of Civil Procedure to the effect that the newly obtained
evidence must have been existent at the time of the proceedings and
must have been inaccessible due to force majeure. However the
DNA test was carried out years after the court gave its final ruling
in the case. It recalled that, in a similar case dated 1969 the
Court of Cassation held that the plaintiff could not request to have
a retrial of an action for rejection of paternity, by invoking the
results of a blood test, carried out years after the final decision.
- On
6 July 1999 the applicant appealed against the decision of the
Aksaray First Instance Court in Civil Matters arguing that the court
could not dismiss a case for procedural reasons after examining its
merits. Furthermore he contended that the medical report of 5 January
1982 was merely based on assumptions, while the DNA tests carried out
in 1997 and 1998 revealed the biological fact that he could not be
the father of S.
- On
1 November 1999 the Court of Cassation quashed the decision of the
first instance court, holding that S. should have been a party to the
proceedings, as she has attained full age and her rights were
competing with those of the mother.
- The
proceedings were resumed before the Aksaray First Instance Court in
Civil Matters. S. was included in the proceedings as the second
defendant and she was notified about the hearing. However she neither
appeared before the Court nor submitted any written statements.
On 28 November 2000 the court dismissed the applicant's
request for retrial for the same reasons as before. The applicant
appealed.
- On
19 April 2001 the Court of Cassation upheld the decision of the first
instance court. It held that, in view of the jurisprudence of the
Court of Cassation, “scientific progress” (fennin
gelişmesi) could not be considered as force majeure
provided under Article 455 § 1 of the Code of Civil Procedure.
- On
12 October 2001 the applicant's request for rectification of the
decision was dismissed.
II. RELEVANT DOMESTIC LAW
- Article
445 § 1 of the Code of Civil Procedure, pertaining at the time
of the proceedings, provided as follows:
“As regards the final decisions, retrial may be
requested under the following circumstances:
After the judgment is rendered, a certificate or a
document is found, which could not have been acquired during the
trial because of force majeure or because of the acts of the
party in favour of which the decision was given.”
- The
relevant provisions of the Civil Code (Law no. 4721, dated
22 November 2001) read as follows:
Article 285
“The husband is the father of the child, born in
wedlock, or within three hundred days after the marriage has ended.”
Article 286
“In order to rebut the presumption of paternity,
an action to reject paternity may be brought by the husband. Such an
action shall be brought against the mother and the child. ...”
Article 287
“If the child is conceived in wedlock, the
plaintiff has to prove that he is not the father of the child.
A child is considered to be conceived in wedlock if he
or she is born at least one hundred and eight days after the
marriage, or at the latest three hundred days from the end of the
marriage.”
Article 289
“The husband shall bring an action within one year
from the moment he is informed of the birth, when he realizes that he
is not the father of the baby or when he finds out that the mother
had sexual intercourse with another man, during the period of
conceiving; in any event, within five years from the birth.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant, relying in substance on Article 8 of the Convention,
complained that although he had the scientific evidence to the effect
that he is not the father of the child born to his former wife, he
could not have this issue determined by a court. Article 8 of the
Convention reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the purpose of the legal presumption of
paternity was to protect the marriage, the family and the stability
of society in general. They argued that there was a need to ensure
legal certainty in family relations and to protect the interest of
the child. They therefore contended that in the present case, the
domestic courts had protected the interest of the child and the
family, rather than the interest of the applicant, who supported his
claim with a biological fact.
- The
applicant contended that the conclusion of the medical report
of 5 January 1982 could only be considered as an
assumption, since it was based on the results of a blood test,
carried out with the technology of the time. However the results of
the DNA tests carried out both in Turkey and in Germany reflected an
undisputable biological fact.
1. Applicability of Article 8
- The
Court has already examined cases in which a husband wished to
institute proceedings to contest the paternity of a child born in
wedlock. In those cases the question was left open whether the
paternity proceedings aimed at the dissolution in law of existing
family ties concerned the applicant's “family life”
because of the finding that, in any event, the determination of the
father's legal relations with his putative child concerned his
“private life” (Yıldırım v. Austria
(dec.), no. 34308/96, 19 October 1999, and Rasmussen v.
Denmark, judgment of 28 November 1984, Series A no. 87, p.
13, § 33).
- In
the instant case the applicant sought, by means of judicial
proceedings, to rebut the legal presumption of his paternity on the
basis of biological evidence. The purpose of those proceedings was to
determine his legal relationship with Ms A.'s daughter, who was
registered as his own.
- Accordingly,
the facts of the case fall within the ambit of Article 8 of the
Convention.
2. General principles
- The
Court reiterates that the essential object of Article 8 is to protect
the individual against arbitrary action by public authorities. There
may in addition be positive obligations inherent in ensuring
effective “respect” for private or family life. These
obligations may involve the adoption of measures designed to secure
respect for private life even in the sphere of the relations of
individuals between themselves (see, Mikulić v. Croatia,
no. 53176/99, § 57, ECHR 2002 I).
- However,
the boundaries between the State's positive and negative obligations
under this provision do not lend themselves to precise definition.
The applicable principles are nonetheless similar. In both contexts
regard must be had to the fair balance that has to be struck between
the competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation (see Keegan v. Ireland, judgment of 26 May
1994, Series A no. 290, p.19, § 49, and Kroon and Others v.
the Netherlands, judgment of 27 October 1994, Series A no.
297 C, p. 56, § 31).
- The
Court reiterates that its task is not to substitute itself for the
competent domestic authorities in regulating paternity disputes at
the national level, but rather to review under the Convention the
decisions that those authorities have taken in the exercise of their
power of appreciation (see Mikulić, cited above, §
59, and Hokkanen v. Finland, judgment of 23 September
1994, Series A no. 299-A, p. 20, § 55). The Court will therefore
examine whether the respondent State, in handling the applicant's
paternity action, has complied with its positive obligations under
Article 8 of the Convention.
3. Compliance with Article 8
- The
Court observes that there is no dispute between the parties that the
domestic court's decision to reject the applicant's request to annul
the decision of 1 June 1982 and to have a retrial was “in
accordance with the law”. Indeed the applicant's request was
based on Article 445 of the Code of Civil Procedure, which provided
that in case a document, which has not been acquired during the trial
due to force majeure, is found after the final ruling is
given, the court may decide to have a retrial. However the case-law
of the Court of Cassation provided that scientific progress cannot be
considered as force majeure within the meaning of the above
mentioned Article. Therefore domestic courts' interpretation of
Article 445 did not make any allowance for the persons who could not
establish the biological truth concerning paternity until the
forensic DNA testing came into widespread use.
- The
Court has previously maintained that the fact that an applicant was
prevented from disclaiming paternity, because he did not discover
that he might not be the father until more than a year after he
learnt of the registration of the birth, was not proportionate to the
legitimate aims pursued (Shofman v. Russia, no. 74826/01, §
45, 24 November 2005). In Mizzi v. Malta judgment it found
that the fact that the applicant was never allowed to contest his
paternity was not proportionate to the legitimate aims pursued (no.
26111/02, § 114, ECHR 2006 ... ). However these findings
were made in cases where the applicant did not suspect that the child
was not his and had only began to doubt his paternity after the
statutory time-limit to bring an action had already expired.
- The
situation in the present case was, however, different. It appears
that the applicant had doubts about his paternity since the beginning
and he therefore filed an action for rejection of paternity less than
two months after S.'s birth, i.e. within the time-limit provided by
Article 289 of the Code of Civil Procedure. However, he was unable to
prove that he was not the father of S., as provided under Article 287
of the Code of Criminal Procedure. Therefore, relying on the fact
that the child was born in wedlock, the court ruled that the
applicant was presumed to be the father.
When
DNA testing became more widespread, the applicant and S.
carried out a test and it was concluded that he could not be her
father. Nevertheless, even in the absence of any doubts as to the
accuracy of the test, the court dismissed the applicant's request to
have a retrial. It held that in order to have a retrial, the newly
obtained evidence must be existent at the time of the proceedings and
it must be inaccessible due to force majeure. It concluded,
however, that scientific progress could not be considered as force
majeure, within the meaning of that Article.
- The Court observes that the Government did not give
any reason why it should be “necessary in a democratic
society”, to refuse the applicant's request to have a retrial,
irrespective of the technological difficulty to have DNA testing in
1982, when the applicant first filed the action for rejection of
paternity. Furthermore, the Court is not convinced by the
Government's argument that the domestic courts have protected the
interest of the child and the family, rather than the applicant. In
particular, it has not been shown how the interest of the child was
protected. The Court notes that just as the applicant has a
legitimate right to have at least the opportunity to deny paternity
of a child who, according to scientific evidence, was not his own, S.
has also an interest in knowing the identity of her biological
father.
- According
to the Court's case-law, the situation in which a legal presumption
is allowed to prevail over biological and social reality, without
regard to both established facts and the wishes of those concerned,
is not compatible, even having regard to the margin of appreciation
left to the State, with the obligation to secure effective “respect”
for private and family life (see, mutatis mutandis, Kroon,
cited above, § 40).
- The
Court considers that the fact that the applicant was prevented from
disclaiming paternity, because scientific progress was not considered
to be a condition for retrial provided under Article 455 § 1 of
the Code of Civil Procedure, was not proportionate to the legitimate
aims pursued. It follows that a fair balance has not been struck
between the general interest of the protection of legal certainty of
family relationships and the applicant's right to have the legal
presumption of his paternity reviewed in the light of the biological
evidence (see, mutatis mutandis, Mizzi, cited above, §
114, and Shofman, cited above, § 45). The Court is of the
opinion that domestic courts should interpret the existing
legislation in light of scientific progress and the social
repercussions that follow.
- The
Court concludes that, despite the margin of appreciation afforded to
the respondent State, it has failed to secure to the applicant the
respect for his private life, to which he is entitled under the
Convention.
- There
has therefore been a violation of Article 8 of the Convention
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant sought reparation for the damage he had sustained but left
the amount to the discretion of the Court.
- The
Government expressed no opinion.
- The
Court notes that there is no evidence before it of any pecuniary
damage. On the other hand, the Court accepts that the applicant has
suffered damage of a non-pecuniary nature as a result of the State's
failure to comply with its positive obligations relating to the right
to respect for his private life. The Court considers that the
non-pecuniary damage sustained by the applicant is not compensated
for by the finding of a violation of the Convention. Making an
assessment on an equitable basis, it awards the applicant EUR 5,000,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant made no claim under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable, to be converted into new Turkish liras at the rate
applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Mr Zupančič
is annexed to this judgment.
B.M.Z.
V.B.
SEPARATE OPINION OF JUDGE ZUPANČIČ
1 Below
are the relevant provisions of the Turkish law that apply where the
European Court of Human Rights has found that there has been a
violation.
Code
of Civil Procedure (Law no. 1086, dated 18.6.1927, amended by Law no.
4793, dated 23.1.2003):
Article 445
“As regards the final decisions, retrial may be
requested under the following circumstances:
The determination by a final decision of the European
Court of Human Rights that the judgment was in violation of the
Convention for the Protection of Human Rights and Fundamental
Freedoms.
Article 447
[...]
The time period for retrial, for the reason written in
sub-paragraph 11 of the first paragraph of Article 445, is one year
from the date of the finalisation of the decision of the European
Court of Human Rights.”
- Similar
provisions are now the rule in most of the
Contracting States.
- The
critical difference
between the applicable formulas in other Contracting States and the
above quoted provision is that the First Presidency of the
Court of Appeals is not required to order a trial de novo.
- Article
41 of the European Convention on Human Rights provides “If
the Court finds that there has been a violation of the Convention or
the protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to
the injured party.” [Emphasis added.] It follows logically
that in cases where the internal law of the State concerned does
provide for full reparation – in the case at hand this would be
the re-opening of the procedure – just satisfaction will
consist in the Court's requiring recourse to the already existing and
applicable internal law.
- By
the logic of Scozzari and Giunta v. Italy ([GC], nos. 39221/98
and 41963/98, ECHR 2000 VIII) and the subsequent case-law, which
further developed that doctrine, and especially where domestic law
does provide for the non-mandatory possibility of a re-trial,
it would be logical and in the interests of justice to make the
requirement of the domestic re-opening of the procedure mandatory in
the operative part of the judgment of the European Court of Human
Rights. Failing that, at least the so called Gençel
formula ought to have been added to the reasoning of the Court
(Gençel v. Turkey, no. 53431/99, 23 October 2003).
- Instead,
we say in paragraph 42 of the judgment: “the Court accepts
that the applicant has suffered damage of a non-pecuniary nature as a
result of the State's failure to comply with its positive obligations
relating to the right to respect for his private life. The Court
considers that the non-pecuniary damage sustained by the applicant is
not compensated for by the finding of a violation of the Convention.
Making an assessment on an equitable basis, it awards the applicant
EUR 5,000, plus any tax that may be chargeable on that amount.”
While the absurdity of offering monetary compensation for reversible
procedural errors as a remedy that is completely extraneous to the
just resolution of the case, is not specific to this case, see for
example my separate opinion in Lucà v. Italy ([GC],
no. 33354/96, ECHR 2001 II), we have now evolved our
case-law to the point at which the language of Article 41 of the
Convention should be interpreted as above.
- Another
point that should be made in this case is as follows. The
constructive interpretation of the outdated provision of the Code of
Civil Procedure (Law No. 1086, dated 18.6.1927)
Article 445
“As regards the final decisions, retrial may be
requested under the following circumstances: 1. After the judgment is
rendered, a certificate or a document is found, which could not have
been acquired during the trial because of force majeure or
because of the acts of the party in favour of which the decision was
given.
is
clearly the business of the Constitutional Court. In countries where
there exists the possibility of an individual application to the
Constitutional Court the matter is resolved in internal law. It never
arrives in Strasbourg. On the one hand, if Turkey were to introduce
the possibility of an individual application to the Constitutional
Court in its internal law, this would then be our requirement in
terms of exhaustion of domestic remedies. On the other hand, I am
certain that a re-trial would have been ordered and the subject
matter would then have been resolved internally. Such an approach
would have the additional benefit of permitting the Constitutional
Court to address the abstract origin of the problem, i.e. the
outdated Article 445 of the 1927 Code of Civil Procedure.
