JUSSI OSAWE v. ESTONIA - 63206/10 - Chamber Judgment [2014] ECHR 859 (31 July 2014)

In the case of Jüssi Osawe v. Estonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 July 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 63206/10) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Ms Veronika Jüssi Osawe (“the applicant”), on 22 October 2010.

2. The applicant was represented by Mr M. Pirn, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that she had no access to a court in respect of the proceedings which she had sought to initiate for the establishment of the paternity of her child.

4. On 22 January 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and lives in Tallinn.

6. On 29 June 2005 the applicant and O., a Nigerian national, married in Copenhagen, Denmark, where they were living at that time.

7. Since 1 November 2005 they have lived apart. According to the applicant, in 2006 she initiated proceedings for dissolution of the marriage in Denmark. By a decision of 2 November 2007 the Copenhagen City Court decided to grant the applicant separation from O. - which in Danish law is not identical to a divorce, since the spouses remained legally married. According to the decision O. was thought to be in Nigeria; he had been summoned to court by a public notice but had not appeared. It appears that the marriage between the applicant and O. has not been officially dissolved.

8. In September 2008 the applicant moved to Estonia. On 4 October 2008 she gave birth to a daughter, A., whose father, according to the applicant, was D. When registering the birth, the applicant was told by the officials of the municipality that since she was married, her husband O. would be registered as the child’s father. According to the applicant this was done despite her objections.

9. On 28 September 2009 the applicant lodged a claim with the Harju County Court seeking a declaration that the entry in the birth register concerning her daughter’s father was incorrect. She provided the court with a notice from the Copenhagen population register about O.’s registered address but added that in fact O. no longer lived there and she did not know his actual address. She asked the court to serve the summons on the defendant by a public notice.

10. By a decision of 15 December 2009 the County Court declined to proceed with the examination of the claim. It noted that the applicant had paid 1,000 kroons (EEK) (approximately 64 euros (EUR)) in State fees instead of the applicable fee of EEK 5,000 (EUR 320). The County Court gave the applicant a thirty-day time-limit to pay the remaining part of the fee. It also gave the applicant the same time-limit to find out where O. currently lived. The court noted that in accordance with the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), in filiation cases parties had to appear in court in person and they also had to be summoned personally. Accordingly, the court could not proceed with the claim without having information about the defendant’s address. The court noted that in view of the fact that the defendant was a Nigerian national probably living in Denmark, it was likely that the defendant had to be heard in a court in the place of his residence in line with the provisions of EU Council Regulation no. 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. However, for that it was necessary to ascertain where O. was residing. The court noted that it was the plaintiff’s obligation to find out where O. actually lived; it considered that the applicant’s efforts in this respect had not been sufficient. It referred to the fact that O. was the applicant’s husband and that divorce proceedings were pending before a Danish court, and concluded that the applicant had better chances of ascertaining O.’s whereabouts, for example through his acquaintances, relatives and colleagues.

11. On 30 December 2009 the applicant requested the County Court to declare unconstitutional the provisions of the Code of Civil Procedure related to the State fee and the requirement that the defendant be summoned and that he appear in court in person. She also informed the court of her intention to request information from the Danish police as to the defendant’s residence and asked for an extension of the time-limit to rectify the deficiencies in her claim indicated by the County Court in its decision of 15 December 2009.

12. By a decision of 12 February 2010 the County Court dismissed the applicant’s request concerning the alleged unconstitutionality of the provisions of the Code of Civil Procedure. It acceded to the applicant’s request for the extension of the time-limit.

13. It appears that the applicant did not inform the County Court of whether she had made any inquiries about O.’s whereabouts to the Danish authorities or of the results of any such inquiries.

14. On 16 April 2010 the County Court declined to entertain the case since the applicant had failed to eliminate the deficiencies indicated in its earlier decisions. The applicant did not lodge an appeal against that decision.

15. In the meantime, on 18 March 2010, the applicant lodged a new claim with the Harju County Court seeking the establishment of her daughter’s filiation from D., a British national living in the United Kingdom. She asked the court to order that a DNA test be carried out with the assistance of the British authorities. The applicant supplied the court with D.’s and his parents’ addresses.

16. On 20 April 2010 the County Court refused to examine the claim. Referring to the Supreme Court’s case-law (judgment of 12 September 1996, case no. 3-2-3-20-96), the County Court found that it was not legally possible to establish the child’s filiation from D. without the entry in the birth register, according to which her father was O., having been declared incorrect beforehand. The claims could not be examined simultaneously.

17. The applicant appealed. On 17 June 2010 the Tallinn Court of Appeal dismissed the appeal.

18. The applicant appealed to the Supreme Court, which decided not to examine the appeal on 8 September 2010.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. Section 39 of the Family Law Act (Perekonnaseadus), as in force at the material time, provided that a child who was born or conceived during the marriage of the parents was to be deemed to be descended from the man who was married to the mother of the child (subsection 1). In the birth register, the person who was married to the mother of the child was to be entered as the father (subsection 2).

20. Section 42 (1) of the Family Law Act provided that if the parents of a child were not married to each other and the filiation of the child could not be ascertained, the filiation of the child from the father could be established by a court.

21. Section 44 of the Family Law Act provided that a court could declare an entry concerning a parent in the birth register incorrect if it established that the child did not descend from that parent (subsection 1). The limitation period of a claim to declare an entry incorrect was one year after the date the person became or should have become aware of the incorrectness of the entry (subsection 3).

22. Article 317 of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) sets out rules concerning the public service of procedural documents. Public service is possible, inter alia, if the address of the participant in the proceedings is not entered in the register, if the person does not live at his or her registered address, or if the person’s address or location has not become known to the court by any other means, or if service of the document in a foreign State in conformity with the requirements of the law is presumed to be impossible (§ 1(1) and (2)). The court may refuse public service of a procedural document if the decision to be made is presumably going to be recognised or enforced in a foreign State and as a result of public service it is probable that the decision would not be recognised or enforced (§ 6).

23. Article 338 of the Code of Civil Procedure provides that if a participant in the proceedings does not know the address or other information about another participant in the proceedings, the procedural document must set out the measures taken by him or her in order to obtain such information (§ 3).

24. Article 346 of the Code of Civil Procedure provides that in marital and filiation matters the parties must appear in court in person unless they have a good reason not to appear. If a party is unable or cannot be expected to appear in court, he or she may be heard and his or her explanations may be obtained by another court on the basis of a letter of request (§ 2). A party must be personally informed by a summons of his or her obligation to appear in court in person (§ 3).

25. Article 414 of the Code of Civil Procedure provides that if one or both parties are absent from a court session, the court may adjudicate on the merits of the matter if the facts on which the action is based have been, in the opinion of the court, ascertained to a sufficient extent. The court may also adjudicate a marital and filiation matter in this manner.

26. In a judgment of 12 September 1996 (case no. 3-2-3-20-96) the Civil Chamber of the Supreme Court held that it was not allowed to establish a child’s filiation from another man before the existing entry in the birth register had been declared incorrect and removed. Only after the pertinent judgment had become final could a claim for the establishment of filiation from another man be resolved. A simultaneous examination of the claims concerning the entry of the father in the birth register and the filiation of the child was not allowed.

27. The Government provided several examples of cases where a court of appeal had quashed the first-instance courts’ decisions whereby those courts had declined to hear an action because a plaintiff had been unable to ascertain the residence of a defendant, including in cases where the defendant was allegedly living abroad (decision of 14 April 2008 of the Tallinn Court of Appeal in case no. 2-07-27215; decision of 21 January 2009 of the Tartu Court of Appeal in case no. 2-07-17227; and decision of 3 February 2009 of the Tallinn Court of Appeal in case no. 2-08-11009).

28. Furthermore, by a judgment of 8 February 2011 the Pärnu County Court in case no. 2-09-34277 established filiation of a child from a defendant who had been summoned to the court by a summons published in the Official Gazette, as well as by an e-mail, but had failed to appear in court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

29. The applicant complained that the Estonian courts had declined to entertain her claims related to the filiation of her daughter and that thereby her right of access to a court had been breached. She relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

30. The Government contested that argument.

A. Admissibility and scope of the case

1. The parties’ submissions

31. In respect of the applicability of Article 6 § 1 of the Convention, the Government were of the opinion that Article 6 § 1 would have in principle been applicable to the proceedings in question had the applicant followed the basic procedural requirements. However, as a precondition for filing a filiation action the existing entry in the birth register had to be contested beforehand, which the applicant had failed to do, and therefore to that extent there was no “civil right” recognised under the domestic law which would attract the application of Article 6 § 1 (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 36, Series A no. 172).

32. The Government further argued that the applicant had failed to exhaust the available domestic remedies. In respect of the applicant’s first action (the action concerning the entry in the birth register), the Government submitted that she had failed to pay the full State fee and to present any information about the defendant (her husband) to allow the action and summons to be served on him. The Government pointed out that the applicant had failed to appeal against the Harju County Court’s decision of 16 April 2010 whereby the court had refused to proceed with the examination of the case owing to the deficiencies mentioned above. The Government also noted that she had lodged her application with this Court on 22 October 2010, that is, more than six months after the decision of 16 April 2010, and that the application was also inadmissible on that ground.

33. In the Government’s view the applicant’s second action (the action concerning her daughter’s filiation from D.) had not been possible under the law because the applicant’s husband was still named in the birth register as the child’s father. Since the applicant had not seen the previous proceedings for contesting the entry of O. as the father in the birth register through to completion, she had failed to exhaust domestic remedies.

34. The applicant argued that she had requested that the County Court declare unconstitutional the provisions of the Code of Civil Procedure concerning the parties’ obligation in filiation cases to appear in court in person and those relating to the applicable State fee. The Harju County Court had dismissed these requests by a decision of 12 February 2010; that decision could not be appealed against. Thus, the Government’s non-exhaustion plea was to be rejected. In respect of the second action the applicant emphasised that she had challenged the domestic courts’ decisions up to the level of the Supreme Court, which on 8 September 2010 had decided not to examine the appeal. The application to the Court had been lodged in October 2010, that is, in compliance with the six-month rule.

2. The Court’s assessment

35. The Court notes that, in accordance with its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect (see Osman v. the United Kingdom, 28 October 1998, § 136, Reports of Judgments and Decisions 1998-VIII, and Cordova v. Italy (no. 1), no. 40877/98, § 48, ECHR 2003-I). This right extends only to disputes (“contestations”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98, and Powell and Rayner, cited above, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria, 24 November 1997, § 34, Reports 1997-VII, and Mizzi v. Malta, no. 26111/02, § 71, ECHR 2006-I (extracts)).

36. In the present case, the applicant wished, firstly, to bring an action against her husband O. seeking a declaration that the entry in the birth register concerning her child’s descent from him was incorrect and, secondly, to bring an action against D. seeking the establishment of her daughter’s descent from him. The Court notes that Estonian law recognised a mother’s right to challenge an entry in the birth register (section 44 of the Family Law Act, see paragraph 21 above) and to seek the establishment of the filiation of her child from the father to whom she was not married (section 42 of the Family Law Act, see paragraph 20 above). The Court does not share the Government’s opinion that failure to comply with procedural requirements by an applicant excludes the applicability of Article 6 § 1 to disputes in respect of which it would otherwise apply. The right of access to courts by its very nature calls for regulation by the State (see, for example, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001-VIII); procedural requirements or pre-conditions to recourse to the courts or to the use of these rights are, in the Court’s view, in substance restrictions to the access to a court and do not, as such, impair the existence of the rights concerned in the domestic legal system or exclude the applicability of Article 6 § 1 (compare Mizzi, cited above, § 74, and also Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 46-47, ECHR 2001-XI). The Court also notes that actions concerning the contestation of filiation or establishment of paternity are matters of family law and on that account alone they are “civil” in character (compare Mizzi, cited above, § 76, and Rasmussen v. Denmark, 28 November 1984, § 32, Series A no. 87). It follows that Article 6 § 1 applies to the facts of the present case.

37. As regards the reliance placed by the applicant on the County Court’s decision of 12 February 2010 by which her unconstitutionality claims had been rejected, the Court considers that this decision cannot be considered the final decision in the first set of proceedings (concerning the entry in the birth register). Although it could not be appealed against as the applicant correctly pointed out, that decision did not terminate the proceedings in question. Indeed, by the same decision the applicant was given an additional time-limit for eliminating deficiencies related to her action (payment of the State fee and provision of information about the defendant’s whereabouts). Moreover, the applicant’s arguments concerning the alleged unconstitutionality of certain provisions could have been reiterated in an appeal against the County Court’s decision of 16 April 2010 (see below).

38. The Court considers that the first set of civil proceedings came to an end on 16 April 2010 when the Harju County Court refused to admit the applicant’s action. Although the County Court’s decision could have been appealed against, the applicant did not make use of this possibility and thus failed to use an available remedy as required under Article 35 § 1 of the Convention. The Court also notes that the County Court’s decision was taken on 16 April 2010, that is, more than six months before the application was lodged with the Court (22 October 2010). It follows that the applicant’s complaint about lack of access to a court, in so far as it relates to the first set of civil proceedings taken separately, must be rejected under Article 35 §§ 1 and 4 of the Convention. This conclusion, however, does not prevent the Court from having regard to the nature of the first set of civil proceedings and the facts related to it in so far as they are relevant for the assessment of the applicant’s access to a court in the second set of civil proceedings (concerning the filiation action).

39. In respect of the second set of civil proceedings, the Court notes that the complaint about lack of access to a court 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

1. The parties’ submissions

40. The applicant submitted that Article 6 § 1 of the Convention had been breached in that the courts declined to entertain her claims and that she could not challenge the entry in the birth register concerning her child’s father before the courts because she had not known the registered father’s actual address and the court documents could therefore not be served on him. This issue resulted in the impossibility of bringing judicial proceedings for the establishment of the filiation of the child from her actual father, whose residence was known. It was also impossible in such circumstances to bring a maintenance claim against the child’s actual father.

41. The Government argued that the right to have a question of domestic law determined by a tribunal was not absolute and could be subject to legitimate restrictions. They further argued that the applicant had not been prevented in any practical manner from bringing her claim before the domestic courts and that her actions could have been examined on the merits had she complied with the formal procedural requirements. In particular, the Government submitted that the requirement to pay a State fee was a justified restriction on the right of access to a court. The amount of the fee had not been disproportionate and it had been open to the applicant to apply for procedural assistance (full or partial exemption from the payment of the fee or its payment in instalments). Furthermore, the requirement to produce the defendant’s address or other contact information could not be considered a disproportionate restriction on access to a court. The Government submitted that the applicant had failed to provide the County Court with any evidence as to whether she had contacted the Danish authorities or the relatives, friends or colleagues of her husband. The Government also noted that the applicant could have searched for the relevant information on the Internet on international social networking sites. If serious efforts to ascertain the defendant’s whereabouts had been made, it would have been possible to summon the defendant by a public notice under Article 317 of the Code of Civil Procedure. Lastly, the Government considered that the requirement under the domestic law that an entry in the birth register had to be contested before a filiation action could be filed did not constitute a disproportionate restriction on access to a court. They argued that a court could not decide on the rights and duties of a man entered in the birth register without the person himself being aware of the proceedings concerning his rights and without him being heard in the proceedings. A claim contesting the paternity of a man entered in the birth register and a claim for establishing the paternity of another man were different by type and directed against different defendants. In the present case, the applicant had not contested the County Court’s refusal to hear her action concerning the entry in the birth register and therefore her second claim had been inadmissible under the Estonian legislation and case-law.

2. The Court’s assessment

42. The Court reiterates that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Z and Others v. the United Kingdom [GC], no. 29392/95, § 91, ECHR 2001-V). The Court has held on numerous occasions that Article 6 was applicable to paternity proceedings (see paragraph 36 above and also, for example, Mikulić v. Croatia, no. 53176/99, §§ 35-46, ECHR 2002-I, and Jevremović v. Serbia, no. 3150/05, §§ 66-86, 17 July 2007).

43. The right of access to the courts secured by Article 6 § 1 of the Convention is not absolute. It may be subject to limitations permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Z and Others, cited above, § 93, and Prince Hans-Adam II of Liechtenstein, cited above, § 44).

44. Turning to the present case, the Court notes that with the applicant’s second action she sought to have it established that her daughter descended from D. However, the courts declined to entertain her claim. Relying on the pertinent case-law, they found that it was impossible to examine this matter as long as the entry in the birth register according to which O. was the child’s father had not been declared incorrect. Nor was it permissible to examine the claims simultaneously.

45. The Court considers that in such circumstances the applicant’s right of access to a court in order to have the filiation of her child established - something she was in principle entitled to under the domestic law - was interfered with.

46. As regards the legitimate aim of the requirement of prior contestation of the entry in the birth register, the Court agrees with the Government in that the two sets of proceedings concerned the rights and obligations of different defendants. The Court is satisfied that the requirement in question was aimed, in general, at protecting the registered father’s rights.

47. Proceeding to assess the proportionality of the interference with the applicant’s right of access to a court, the Court reiterates that it is not the Court’s task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Mizzi, cited above, § 86, and Cordova, cited above, § 57).

48. The Court considers that in the present case the applicant was not prevented from having recourse to the courts. It was open to her to challenge the entry concerning the child’s father in the birth register and thereafter to seek the establishment of the child’s filiation. The mere fact that under the domestic law these proceedings had to be pursued consecutively rather than at the same time, and that it was not possible to pursue the second proceedings without the first proceedings having been successfully completed, did not, in the Court’s view, render the applicant’s access to a court ineffective or restrict it to such an extent that the very essence of the right was impaired. The Court notes that it is not called upon to assess whether the domestic legal system was designed to operate in the manner which was most convenient for the applicant. Rather, the Court’s role is to determine whether the applicant’s right of access to a court was restricted in a disproportionate manner. However, even if the regulation in question may seem somewhat formalistic, the Court is unable to conclude that this has been the case in the present instance.

49. The Court notes that in the first set of proceedings the applicant did not request a reduction of the State fee or seek permission to pay it in instalments. Nor did she inform the County Court of the outcome, if any, of the information request she undertook to make to the Danish police. Therefore, the County Court refused to proceed with the examination of the claim. The Court is of the view that if the applicant had used the remedy at her disposal and appealed against the first-instance court’s decision, the Court would be able to assess whether indeed in those proceedings the requirements related to the payment of the State fee and the applicant’s obligation to provide information about the defendant’s residence were excessive and effectively prevented her access to a court also in the second set of proceedings. However, since the applicant failed to challenge the County Court’s decision before a higher jurisdiction, she failed to use an available remedy against the County Court’s refusal (see, in this connection, in paragraph 27 above, the domestic case-law of appeal courts where first-instance courts’ decisions have been quashed in similar circumstances). Therefore the Court does not need to assess whether the applicant did what could have been reasonably expected of her in finding out about the defendant’s residence, whether she took reasonable steps related to the State fee and whether the County Court’s interpretation of the relevant requirements was excessively rigid. The Court is of the view that lodging an appeal against the County Court’s decision was the least that could have been expected of the applicant and it cannot overlook the fact that the higher jurisdictions were given no possibility of assessing the situation and putting things right, if needed, in the domestic proceedings. The Court observes that the outcome of the first set of proceedings prevented the applicant’s access to a court in the second set of proceedings. However, since she did not use the remedies available to her in the first set of proceedings, the Court considers that her access to a court in the second set of proceedings was not restricted in a disproportionate manner.

50. In the light of the foregoing, the Court finds that there has been no violation of the applicant’s right of access to a court as guaranteed by Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

51. The applicant complained that the wrong person had been entered in the birth register as her child’s father and it was impossible to have this entry corrected. She relied on Article 8 of the Convention, which 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.”

52. The Government contested that argument.

53. Having regard to its findings relating to Article 6 § 1 (see, in particular, paragraphs 38 and 48 to 50 above), the Court considers that the applicant has not used the domestic remedies available to her in respect of this complaint.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the applicant’s right of access to a court in respect of the civil proceedings whereby she sought to have the paternity of her child established admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 31 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> JUSSI OSAWE v. ESTONIA - 63206/10 - Chamber Judgment [2014] ECHR 859 (31 July 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/859.html Cite as: [2014] ECHR 859