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FIRST
SECTION
CASE OF FELLAS v. GREECE
(Application
no. 46400/09)
JUDGMENT
STRASBOURG
18
October 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Fellas v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly
Kovler,
President,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 46400/09) against the
Hellenic Republic lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a
British and Cypriot national,
Mr Christakis Fellas (“the applicant”), on 27 July 2009.
- The
applicant was represented by Ms A. Kaftani, a lawyer practising in
Athens. The Greek Government (“the Government”)
were represented by their Agent’s
delegate, Mr D. Kalogiros, Legal Assistant at the State Legal
Council.
- On
3 June 2010 the
President of the First Section decided to give notice of the
application to the Government.
- The
Government of Cyprus and of the United Kingdom were given notice of
the application. They both informed the Court that they did not wish
to exercise their right to intervene in the proceedings.
- In
accordance with Protocol No. 14, the application was allocated to a
Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in London.
- In
June 1986 he started an intimate relationship with S.D. who was at
the time married to another man but separated from him. S.D. gave
birth to two children on 26 August 1987 and 25 November 1995
respectively. The applicant voluntarily recognised the second child
in France where it was born.
- S.D.
got divorced in 1998. The applicant’s relationship with her
also ended in March of the same year. The applicant maintained
regular communication with the two children until 2000, when the
contact with them became irregular due to the opposition on the part
of S.D.
A. Interim applications
- On
11 October 2000 the applicant lodged an interim application asking
for visiting rights as regards the two children before the Family
Court of First Instance of Athens. His request was accepted on 15
February 2001 (judgment no. 1586/2001).
- On
11 October 2001 S.D. lodged an interim application with the Family
Court of First Instance of Athens asking to have the applicant’s
visiting rights withdrawn. This request was rejected on 29 April 2002
(judgment no. 3369/2002).
- On
11 June 2002 S.D. lodged another interim application with the Family
Court of First Instance of Athens asking to have the applicant’s
visiting rights withdrawn. On 12 August 2002 her application was
accepted (judgment no. 6306/2002). The court decided that the
applicant was not the lawful father of the children, as S.D. was
still married to another man when the children were born, and
therefore, according to Article 1465 of the Civil Code, it was
presumed that her husband was the father of the children. Further, it
was observed that the applicant had never challenged the paternity of
the children before the domestic courts in the form of an action
challenging paternity pursuant to Article 1469 §
5 of the Civil Code.
B. Ordinary application
- In
the meantime, on 9 March 2001 the applicant had lodged an application
for the regulation of visiting rights with the children before the
Athens Family Court of First Instance. His application was rejected
on 11 November 2002. The court noted that S.D. was still married
to another man when the children were born and therefore, according
to Article 1465 of the Civil Code, it was presumed that their father
was their mother’s husband (judgment no. 1605/2002).
- On
15 December 2002 the applicant filed an appeal with the Athens Family
Court of Appeal challenging the First Instance Court’s
decision. In the meantime the eldest child became an adult and the
subject matter regarding this child ceased to exist. Thus, the
proceedings continued only with regard to the second child. By
judgment dated 12 April 2006, the court rejected the applicant’s
appeal and upheld the findings of the First Instance Court (judgment
no. 2601/2006).
- On
21 September 2006 the applicant lodged an appeal on points of law
with the Court of Cassation. On 19 March 2009, after the case had
been referred to the plenary session of the court, the appeal was
finally rejected (judgment no. 9/2009). The date on which
judgment no. 9/2009 was “finalised” (θεώρηση
και
καθαρoγραφή)
does not transpire from the case file.
II. RELEVANT DOMESTIC LAW
- Article
1465 of the Civil Code provides as follows:
“A child born during the marriage of his mother or
within three hundred days from the dissolution or annulment of such
marriage is presumed to have as its father the mother’s husband
(child born in marriage)”.
- Article
1469 of the Civil Code provides as follows:
“The qualification of a child born in wedlock may
be challenged by: 1) the husband of the mother, 2) the father or the
mother of the husband if the latter has died without having lost the
right to challenge, 3) the child, 4) the mother of the child, 5) the
man with whom the mother, while separated from her husband, had a
permanent relationship with bodily intercourse during the critical
period of conception. The challenge must be made by the entitled
person to do so personally or by his specially authorised attorney
or, with the Court’s permission, by his lawful representative”.
According
to Article 1470 of the Civil Code, the person who had sexual
intercourse with the mother may challenge the qualification of a
child born in wedlock within a period of two years after the child’s
birth.
- Article
1520 of the Civil Code provides as follows:
Personal communication
“The parent with whom the child does not reside
conserves the right of personal communication with it. The parents
have not the right to prevent the communication of the child with its
distant ascendants except on serious grounds. In the cases
contemplated in the preceding paragraphs particulars pertaining to
the method of communication shall be specifically regulated by the
Court”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE
PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
case concerns the length of two sets of administrative proceedings.
- The
Court observes that the first set of
proceedings commenced on 11 October
2000 when the applicant lodged an interim application with the Athens
Family Court of First Instance and
ended on 12 August 2002 when his allegations were finally
rejected by the same court (judgment
no. 6306/2002).
Thus, the impugned decision was published more than six months
before the introduction of the application with the Court on 27 July
2009. It follows therefore that this
complaint
should be rejected as inadmissible,
as it fails to comply with the
six-month time-limit imposed by Article 35 § 1 of the
Convention.
-
In so far as the second set of proceedings is concerned, the period
to be taken into consideration commenced
on 9 March 2001 when the applicant lodged an ordinary application
with the Athens
Family Court of First Instance and
ended on 19 March 2009 when his application was finally rejected by
the Court of Cassation (judgment
no. 9/2009). It therefore lasted
more than eight years for three levels of jurisdiction.
- With
respect to the second set of proceedings, the Court notes that
this complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the second set of proceedings
was excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 of
the Convention about the fairness of the proceedings before the
domestic courts. In this respect, he complained about the
wrong implementation of the substantive law, the wrong assessment of
the evidence and the outcome of the proceedings. He further claimed
that the domestic courts’ decisions were not well reasoned.
- The
Court recalls that, while Article 6 of the Convention guarantees the
right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts. In particular, it is not the Court’s function
to deal with errors of fact or law allegedly committed by a national
court unless and in so far as they may have infringed rights and
freedoms protected by the Convention (see, among many others,
García Ruiz v. Spain
[GC], no. 30544/96, §§ 28 29, ECHR 1999 I).
The Court also recalls that it is not its task to act by calling into
question the outcome of the domestic proceedings. The domestic courts
are best placed for assessing the relevance of evidence to the issues
in the case and for interpreting and applying rules of substantive
and procedural law (see Pekinel v.
Turkey, no. 9939/02, § 53,
18 March 2008).
- In
the present case, the Court finds that the applicant’s
complaints as to the fairness of the proceedings are unfounded. There
is nothing in the case-file to indicate that the assessment of the
evidence was arbitrary or the proceedings were otherwise unfair to
raise an issue under Article 6. The
domestic courts heard the applicant, took into account his
submissions and examined all his arguments. It appears from the case
file that the judicial decisions rejecting the applicant’s
claims were all well reasoned.
30. In
view of the abovementioned, the applicant’s complaints are
therefore manifestly ill-founded and must be rejected under
Article 35 §§ 3 (a) and 4 of the
Convention.
- Further,
the applicant complained that his right to family life under
Article 8 was violated, as no visiting rights were awarded to him,
despite the fact that it was never challenged that he was the natural
father of the children.
- The
Court notes that, as it was clearly explained by the domestic courts,
the mother of the children was still married to another man when the
children were born. Therefore, according to Article 1465 of the Civil
Code, it was presumed that her husband was their father. Further,
it was observed that pursuant to Article 1469 § 5 of the
Civil Code the applicant had the possibility to challenge the
presumption of paternity established by Article 1465 of the
Civil Code. Nonetheless, the applicant had never brought such an
action before the domestic courts, which was a prerequisite in order
to be legally considered as the father of the children and hence be
granted visiting rights to them. The Court
observes that the domestic courts’ decisions to reject the
applicant’s request for visiting rights were taken according to
domestic law and relied on reasonable grounds which could not
infringe the applicant’s private or family life, namely that
communication rights are only guaranteed for parents recognized
according to the procedures provided by domestic law. The obligation
to institute proceedings under Articles 1469 and 1470 of the Civil
Code cannot be considered as imposing an excessive burden on
the applicant with regard to the enjoyment of his rights enshrined in
Article 8 of the Convention.
- In
view of the above the Court concludes that the applicant’s
complaint under Article 8 is manifestly ill-founded and must be
rejected under Article 35 §§ 3 (a) and 4 of the
Convention.
- Lastly,
the applicant raised several complaints
under Article 7 of the European Convention on the Exercise of
Children’s Rights and Articles 3 and 4 of the European
Convention on the Legal Status of Children Born out of Wedlock.
- In
so far as these complaints are concerned, the
Court reiterates that it has no jurisdiction to ensure compliance
with instruments other than the European Convention on Human Rights
and its Protocols.
- Therefore,
these complaints
must be declared inadmissible as
being incompatible ratione materiae
with the provisions of the
Convention, in application of Article 35 §§ 3 (a) and 4.
III. 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.”
A. Damage
- The
applicant claimed 268,000 euros (EUR) in respect of non-pecuniary
damage: (a) EUR 168,000 for suffering and distress due to violation
of his right to family life under Article 8 of the Convention, (b)
EUR 50,000 for suffering and distress for the unjustified duration of
the proceedings and (c) EUR 50,000 for suffering, distress and
psychological damage in respect of the violation of the right to fair
trial.
- As
regards the applicant’s claim concerning the length of the
proceedings, the Government considered
the amount claimed exorbitant and submitteds
that a finding of a violation would constitute sufficient just
satisfaction. No submissions were made in respect of the other
claims.
- The
Court notes that the applicant’s complaints under
Article 8, with regard to his right to family life, and under Article
6 of the Convention, concerning the alleged violation of his right to
fair trial, were rejected. Thus, no amount can
be awarded to the applicant in respect of non-pecuniary damage
on that account. Nevertheless, the Court considers that the
applicant must have sustained non-pecuniary damage for the excessive
length of proceedings. Ruling on an equitable basis, it awards him
EUR 4,000 under that head, plus any tax that
may be chargeable on this amount.
B. Costs and expenses
- The
applicant also claimed EUR 13,528.44 for the costs and expenses
incurred before the domestic courts and for those incurred before the
Court. He produced three separate invoices (for
the sum of EUR 1,972) in respect of the costs incurred before the
domestic courts. No invoice was submitted in support of his claim
regarding the costs incurred before the Court.
- The
Government contested these claims. In so far as the costs and
expenses incurred before the domestic courts were concerned, they
observed that these were not causally linked with the protracted
length of the proceedings and that this claim should be dismissed.
With regard to the costs and expenses allegedly incurred before the
Court, the Government submitted that the applicant’s
claim was not supported by any proof.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see Iatridis
v. Greece (just satisfaction) [GC],
no. 31107/96, § 54, ECHR 2000 XI).
- Regarding
the costs incurred before the domestic courts, the Court has already
ruled that the length of a procedure could result in increased costs
for the applicant before the domestic courts and should therefore be
taken into account (see Capuano v. Italy, 25 June 1987, §
37, Series A no. 119).
The
Court notes, however, that the costs claimed in this case were not
caused by the length of proceedings but were costs normally incurred
in the context of the proceedings. Thus,
it does not discern any causal link between the violation found and
the pecuniary damage alleged; it therefore rejects this claim.
- In
respect of the costs incurred before
the Court, in view of the absence of any supporting documents, the
Court finds that the applicant’s claim under this head has not
been substantiated. Regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable
to reject the applicant’s 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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to
pay the applicant, within three months EUR 4,000 (four thousand
euros), in respect of non-pecuniary damage, plus any tax that may be
chargeable on this amount;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy Registrar President
