EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHOFMAN v. RUSSIA
(Application No. 74826/01)
JUDGMENT <*>
(Strasbourg, 24.XI.2005)
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Shofman v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 3 November 2005,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 74826/01) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by Mr Leonid Mikhaylovich Shofman, on
5 September 2001. The applicant was a Russian national at the time
of the events complained of; he subsequently obtained German
nationality.
2. The applicant, who had been granted legal aid, was
represented before the Court by Mr G. Rixe, a lawyer practising in
Bielefeld, Germany. The Russian Government ("the Government") were
represented by their Agent, Mr P. Laptev, Representative of the
Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, a violation of Article
8 of the Convention, in that proceedings to disclaim his presumed
paternity were held to be time-barred under the law in force at
the material time.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 25 March 2004, the Court declared the
application partly admissible.
6. Neither the applicant nor the Government filed observations
on the merits (Rule 59 з 1).
7. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
THE FACTS
I. The circumstances of the case
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.
--------------------------------
<*> RSFSR - Russian Soviet Federalist Socialist Republic.
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.
II. Relevant domestic law
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 з 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.
THE LAW
I. Alleged violation of Article 8 of the Convention
22. The applicant complained under Article 8 of the Convention
that he had been prevented from instituting proceedings to contest
paternity by the fact that, for statute-of-limitations purposes,
time had started to run from the date the birth was registered.
Article 8 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. Arguments by the parties
1. The applicant
23. The applicant submitted, firstly, that even though the
paternity proceedings had been aimed at the dissolution of
existing family ties, the determination of his legal relations
with his child undoubtedly concerned his private life (Rasmussen
v. Denmark, judgment of 21 November 1984, Series A No. 87, p. 13,
з 33). The State had a positive obligation under Article 8 to
secure respect for private life even in the sphere of the
relations of individuals between themselves (Botta v. Italy,
judgment of 24 February 1998, Reports of Judgments and Decisions
1998-I, p. 422, з 33). In particular, the child had the right
under Article 8 to establish a legal relationship with his natural
father ({Mikulic} v. Croatia, No. 53176/99, зз 64 - 66, ECHR 2002-
I) and the husband had the right to contest paternity in order to
establish that he was not the biological father. In the
applicant's opinion, Article 8 guaranteed the right to dissolve a
family tie which was not the result of a biological bond. He
concluded on the basis of the Kroon judgment that biological and
social reality should prevail over legal presumptions and the
quest for legal certainty of relations, so that any presumption of
paternity had to be effectively capable of being rebutted and not
amount to a de facto rule (Kroon and Others v. the Netherlands,
judgment of 27 October 1994, Series A No. 297-C, з 40). The right
to contest paternity was accepted in all Contracting States,
including the Russian Federation. The applicant contended that the
decisions of the domestic courts to declare his action disclaiming
paternity time-barred constituted an interference with his right
to respect for his private and family life.
24. The applicant accepted that the judgments of the domestic
courts had been based on the law in force at the material time. He
stressed, however, that the Government had not advanced any
reasons to show that the law in question had pursued a legitimate
aim and that the interference had been necessary in a democratic
society. The applicant submitted that the interference had not
been necessary and was not justified for the following reasons.
25. For the purposes of the limitation period provided for in
the national law and applied in the applicant's case, time had
started to run irrespective of whether the husband had any doubts
concerning his biological paternity at that juncture. A legal
father would only disclaim paternity if he was put on notice of
facts that showed that he was not the father. Only under these
circumstances could he make an informed choice regarding the
child: either to disavow it or continue to assume the parental
obligations under a form of legalised adoption. Therefore, the
legislature should have allowed an appropriate period during which
the putative father could make a considered decision. In the
applicant's assessment, his rights would be sufficiently
safeguarded only if time started to run from the date the husband
learnt of the facts suggesting that he might not be the biological
father. Furthermore, he contended that such an arrangement would
not impair the interests of the child and that it was better
psychologically for the child's legal paternity to correspond to
the biological reality.
26. The applicant laid emphasis on the fact that the new Family
Code (effective from 1 March 1996) contained no time-limit for
contesting paternity. An authoritative legal commentary on the new
Family Code written by a former Russian Justice Minister
acknowledged that the position of the legislature reflected in the
new Code "placed an emphasis on the factual descent of the child
as opposed to the mere formalism of the civil record which impeded
the establishment of the truth". In the applicant's opinion, this
change at the domestic level demonstrated that the interests of
the child could be safeguarded without preventing a putative
father from contesting paternity.
27. The applicant asserted that in most other Contracting
States either the limitation period for contesting paternity was
relatively long in countries in which time was calculated from the
child's birth, or time only started to run once the legal father
became aware of facts showing that he was not the biological
father. In certain countries there was no time-limit at all or the
limitation period was very long.
28. Finally, the applicant submitted that by the time he had
discovered that he might not be the biological father the time-
limit had already expired. There were no interests of the child
that conflicted with his right to disclaim paternity because he
had been living permanently in Germany since 28 March 1996 and
there had been no actual family bond between him and the child.
2. The Government
29. The Government submitted that the judgments of the domestic
courts were fully in compliance with the domestic law, notably the
RSFSR Code of Marriage and Family, which was applicable in the
applicant's case. The domestic courts established that the
applicant had agreed to his registration as the child's father in
July 1995 and, accordingly, could have contested the entry before
30 June 1996. However, he had not issued proceedings until
December 1997 and his action had therefore been time-barred. The
Government concluded that there had been no interference with the
applicant's right to respect for his private and family life.
B. The Court's assessment
1. Applicability of Article 8 of the Convention
30. 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" (Yildirim v. Austria (dec.), No. 34308/96, 19
October 1999; and Rasmussen, cited above, з 33).
31. 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
G.'s son, who was registered as his own.
32. Accordingly, the facts of the case fall within the ambit of
Article 8.
2. General principles
33. 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 {Mikulic},
cited above, з 57, with further references).
34. 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, з 49; Kroon,
cited above, з 31).
35. 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
{Mikulic}, cited above, з 59; Hokkanen v. Finland, judgment of 23
September 1994, Series A No. 299-A, p. 20, з 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 of the Convention
36. The applicant does not dispute that the domestic courts'
decisions were "in accordance with the law", notably Article 49 of
the RSFSR Marriage and Family Code, which applied to disputes
involving children born during the period it was in force. It
provided a right to contest paternity within one year only after
the husband learnt or should have learnt of the registration of
the birth. Time began to run under the limitation period
irrespective of whether or not the husband had any doubts about
his biological paternity.
37. A comparative examination of the Contracting States'
legislation on the institution of paternity actions reveals that
there is no universally adopted standard. With the notable
exception of the small number of States that have no statutory
time-limit for bringing proceedings contesting paternity, a
limitation period exists which is usually of six months or a year,
but may be as long as two years.
38. However, the difference between the various legal systems
that is relevant to the present case is not only the length of the
limitation period as such, but also its dies a quo. In some States
the period is calculated from the moment the putative father knew
or should have known that he had been registered as the child's
father. The other States, which are approximately equal in number,
accept as the starting point the date he learnt or should have
learnt of circumstances casting doubt on the child's legitimacy.
Many States in the latter category have introduced a second time-
limit, making it possible to disclaim paternity only when the
child is still young. A few States in which time starts to run
from the child's birth, irrespective of the father's awareness of
any other facts, also fall into the latter category.
39. The Court has previously accepted that the introduction of
a time-limit for the institution of paternity proceedings was
justified by the desire to ensure legal certainty in family
relations and to protect the interests of the child (Rasmussen,
cited above, з 41). In the Yildirim decision it found that "once
the limitation period for the applicant's own claim to contest
paternity had expired, greater weight was given to the interests
of the child than to the applicant's interest in disproving his
paternity" (cited above). However, this finding was made in cases
where the applicant had known with certainty, or had had grounds
for assuming, that he was not the father from the first day of the
child's life but - for reasons unconnected with the law - had
taken no steps to contest paternity within the statutory time-
limit (see Yildirim, cited above; Rasmussen, cited above, зз 8 and
10).
40. The situation in the present case was, however, different.
It appears that for some two years after the child's birth the
applicant did not suspect that the child was not his and reared
him as his own. He was apprised of circumstances casting doubt on
his paternity in September 1997, by which time the statutory time-
limit had already expired. Once the applicant became aware that
the biological reality might be different, he brought a legal
action without delay. Within three months of the relevant
information being brought to his attention, he filed a petition
for divorce and brought an action contesting paternity.
41. The Court notes that the District Court acknowledged on the
basis of genetic evidence that the applicant was not the child's
father (see paragraph 14 above). It was not therefore the absence
of an established biological fact that caused the applicant's
paternity action to fail (see, in contrast, Nylund v. Finland
(dec.), No. 27110/95, 29 June 1999, where the domestic courts
rejected the applicant's claim seeking a determination on whether
a biological bond existed between him and the child). Indeed, it
was common ground between the parties that the applicant would
have had a right under domestic law to contest the paternity had
he lodged the action within one year after the registration of the
birth.
42. The Court notes that the legal systems of the Contracting
States have produced different solutions to the problem which
arises when the relevant circumstances only become known after the
expiry of the time-limit. In some States, in certain exceptional
cases a court may grant leave to institute proceedings out of time
(Rasmussen, cited above, з 24). In others the authority to do so
is vested in the public prosecutor (see Yildirim, cited above).
43. In the applicant's case, the power of appreciation of the
domestic courts was circumscribed by Article 49 of the RSFSR
Marriage and Family Code. That provision was capable of adequately
securing the interests of a husband who, on learning of a fact or
date of birth that suggested that the child was not his, could
make an informed choice and either accept the legal presumption of
paternity or challenge it in the courts. It made, however, no
allowance for husbands in the applicant's situation who did not
become aware of the biological reality until more than a year
after the registration of the birth. The Government did not give
any reasons why it should have been "necessary in a democratic
society" to establish an inflexible time-limit with time running
irrespective of the putative father's awareness of the
circumstances casting doubt on his paternity and not to make any
exceptions to the application of that time-limit.
44. 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 and without actually benefiting anyone, 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 (Kroon, cited above, з 40).
45. The Court considers that the fact that the 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. 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.
46. 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
47. 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
1. Non-pecuniary damage
48. The applicant claimed 8,000 euros (EUR) as compensation for
non-pecuniary damage. He submitted that the rejection of his
action to contest paternity had caused him pain and suffering. He
referred to comparable awards in the cases of McMichael v. the
United Kingdom (judgment of 24 February 1995, Series A No. 307-B,
з 103), Amuur v. France (judgment of 25 June 1996, Reports 1996-
III, з 36), and Nsona v. the Netherlands (judgment of 28 November
1996, Reports 1996-V, з 106).
49. The Government considered that the claim was excessive and
unreasonable and that a mere finding of a violation would suffice.
50. 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 sufficiently
compensated for by the finding of a violation of the Convention.
Making an assessment on an equitable basis, the Court awards the
applicant EUR 6,000, plus any tax that may be chargeable on that
amount.
2. Pecuniary damage
51. The applicant sought an exemption from his obligation to
pay child maintenance and reimbursement of the amounts he had
already paid.
52. The Government contested this claim, arguing that it was
not supported by appropriate evidence.
53. As regards the applicant's claim for injunctive relief in
respect of the payment of maintenance for the child, the Court
reiterates that its judgments are essentially declaratory in
nature and that, in general, it is primarily for the State
concerned to choose the means to be used in its domestic legal
order in order to discharge its legal obligation under Article 46
of the Convention, provided that such means are compatible with
the conclusions set out in the Court's judgment (see Assanidze v.
Georgia [GC], No. 71503/01, з 202, ECHR 2004-..., with further
references). The Court is not empowered under the Convention to
grant exemptions or declarations of the kind sought by the
applicant (see Dudgeon v. the United Kingdom (Article 50),
judgment of 24 February 1983, Series A No. 59, з 15; McMichael,
cited above, з 105; Couez v. France, judgment of 24 August 1998,
Reports 1998-V, зз 32 - 36).
54. As regards the applicant's claim for the reimbursement of
maintenance payments, the Court notes that the applicant did not
indicate the amounts that had already been paid or provide any
documents in support of his claim. Accordingly, it makes no award
under this head.
B. Costs and expenses
55. Relying on documentary evidence, the applicant claimed EUR
1,888.48, less the amount he had received in legal aid, in respect
of the proceedings before the Court, comprising his lawyer's fees,
postage and copying costs and value-added tax. He claimed EUR
2,116.60 for legal and experts' fees and travel expenses in the
domestic proceedings. Finally, he claimed EUR 223.43 for the costs
of translation of the domestic judgments.
56. The Government submitted that the applicant had not shown
that he had paid Mr Rixe's bill. They also considered it
inappropriate to include the value-added tax because, in their
view, it would mean that the Russian authorities were contributing
to the German treasury.
57. The Court reiterates that it will award legal costs and
expenses only if satisfied that these were necessarily incurred
and reasonable as to quantum. It notes that the costs and expenses
claimed by the applicant were supported by appropriate evidence
and did not appear disproportionate to the amount of work
performed in the case. However, a certain reduction is to be
applied as some of the applicant's complaints were declared
inadmissible. Making its assessment on the basis of the available
information, the Court awards the applicant EUR 4,000 less EUR 701
received by way of legal aid from the Council of Europe, plus any
tax that may be chargeable on that amount.
C. Default interest
58. 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
1. Holds that there has been a violation of Article 8 of the
Convention;
2. 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 з 2 of the Convention, the following
amounts:
(i) EUR 6,000 (six thousand euros) in respect of non-pecuniary
damage;
(ii) EUR 3,299 (three thousand two hundred and ninety-nine
euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points;
3. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 24 November 2005,
pursuant to Rule 77 з 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
In accordance with Article 45 з 2 of the Convention and Rule 74
з 2 of the Rules of Court, the concurring opinion of Mr Lorenzen
is annexed to this judgment.
C.L.
S.N.
CONCURRING OPINION OF JUDGE LORENZEN
I have agreed with the majority that there has been a violation
of Article 8 but only with some hesitation for the following
reasons:
The assessment of to what extent and under what conditions a
registered paternity may be contested is very difficult involving
a number of conflicting interests. Thus the "biological reality"
is only one of them, and it may in the circumstances of a given
case be outweighed by for instance the interests of the child, the
child's mother or the society in preserving the stability of the
legal status of persons. An example of that is the Court's
decision of 19 October 1999 in Yildirim v. Austria. It is
therefore not astonishing that a survey of the legislations in the
Contracting States on the institution of paternity actions reveals
that there is no universally adopted standard, but on the contrary
the various legal systems differ considerably according to the
political, social and cultural traditions. In my opinion the Court
should be careful not to impose a general opinion on how such
conflicting interests should be assessed but leave a wide margin
of appreciation to national legislators.
The former Russian legislation only made a contestation
possible until one year after the birth of the child irrespective
of the circumstances of the case. Even if such a limited access to
contest a paternity is not unique in the legislations of the
Contracting States, it must nevertheless be justified. However,
the respondent Government have not advanced any arguments in that
respect, and for that reason I can agree to the finding of a
violation in the present case.
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