JUDGMENT
On Behalf of the Republic of Latvia
Riga, 3 June 2009
in Case No. 2008-43-0106
The Constitutional Court of the
Republic of Latvia, composed of the Chairman of the Court hearing Gunārs
Kūtris, Justices Kaspars Balodis, Aija Branta, Juris Jelāgins,
Kristīne Krūma and Viktors Skudra,
based on the application of J. O. (hereinafter
– the Applicant),
according to Article 85 of the
Satversme [Constitution] of the Republic of Latvia and Article 16 (1), 6th
indent, Article 17 (1), 11th indent and Article 192 of
the Constitutional Court Law,
on 8 May 2009, in a Court hearing
examined the case in writing
“On
Compliance of the Words “Within Two Years Calculated from the Day when They
Have Found out about the Circumstances that Preclude Paternity” of the Second
Part of Section 156 of the Civil Law with Article 92 and Article 96 of the
Satversme (Constitution) of the Republic of Latvia and Article 4 of the
European Convention of the Legal Status of Children Born out of Wedlock”.
The
Facts
1. The question regarding parentage of a child, as
well as its establishment in the Republic of Latvia is regulated by the section
Family Law of the Civil Law (hereinafter – the CL), as well as Chapter 30 of
the Civil Procedure Law. Section 156 of the CL initially provided for the
claims that the mother of a child born out of wedlock could make against the
father of the child born out of wedlock, as well as it established the terms
for brining an action in this respect.
By the Law “On
Amendments and Supplementing of the Chapter “Family Law” of 1937 Civil Law” of
25 May 1993, the second part of Section 156 of the CL acquired the following
wording:
“Paternity may be
contested by the person who has acknowledged paternity, parents, if the person
is dead, the trustee of the person if such person has been found to be lacking
the capacity to act due to mental illness or mental deficiency, or by the
mother of the child within two years calculated from the day when they have
found out about the circumstances that preclude paternity. Children themselves
may contest the acknowledgement of paternity within a two-year period after
reaching legal age if their parents have died.”
On 12 December 2002, the
Saeima (Parliament) of the Republic of Latvia (hereinafter – the Saeima), by adopting
the Law “Amendments to the Civil Law”, excluded the words “parents, if the
person is dead” from the second part of Section 156 of the Civil Law.
Consequently, since 1 January 2003, when the abovementioned amendments came
into force, the second part of Section 156 of the CL has the following wording:
“Paternity may be
contested by the person who has acknowledged paternity, the trustee of the
person if such person has been found to be lacking the capacity to act due to
mental illness or mental deficiency, or by the mother of the child within two
years calculated from the day when they have found out about the circumstances
that preclude paternity. Children themselves may contest the acknowledgement of
paternity within a two-year period after reaching legal age if their parents
have died.”
2. The Applicant contests, in its claim lodged at
the Constitutional Court, compliance of the words “within two years calculated
from the day when they have found out about the circumstances that preclude
paternity” of the second part of Section 156 of the CL (hereinafter – the
Contested Norm) with Article 92 and Article
96 of the Satversme of the Republic of Latvia (hereinafter – the
Satversme), as well as Article 4 of the European Convention of the Legal Status
of Children Born out of Wedlock of 15 October 1975 (hereinafter – the
Convention).
The Applicant indicates
having lodged a statement of claim on contesting paternity at the Riga City
Latgale Regional Court. The statement was supplemented by a request to appoint
DNA expert examination to establish the biological birth fact of the child. The
court rejected the request by justifying such decision by the fact that the
term of two years established in the Contested Norm has expired.
The
Civil Case Division of the Riga Regional Court rejected, in its decision of 4
October 2007, the appellation claim of the Applicant. The Department of Civil
Cases of the Senate of the Supreme Court of the Republic of Latvia (hereinafter
– the Senate) rejected, by its judgment of 11 June 2008, the cassation claim of
the Applicant. The decisions were justified by the fact that the term
established in the Contested Norm regarding bringing an action has expired.
The
Applicant holds that the Contested Norm has been created with the purpose to
confer a person, who has recognized paternity, the right to contest such
recognition in the cases established by the Law. Namely, it gives the
possibility to avoid parental rights and duties, as well as to establish termination
of the rights and duties of a child regarding the person who contests
paternity. The term of two years established in the Contested Norm is related
not only with the legal status of a child but also to the right of the person
who has contested paternity to address a court. Likewise, the abovementioned
concerns the private life of the person.
By
referring to judgments of the Constitutional Court and those of the European
Court on Human Rights (hereinafter – the ECHR), the Applicant admits that the
right to a fair court is not absolute and it can be restricted. However, any
such restriction is admissible only insofar as the person is not debarred from
the abovementioned right. Normative acts do not provide for an institution that
would be entitled to collect evidence before proceedings to contest or prove
paternity if the mother of a child object collecting such evidence.
It
is necessary to assess the norms included in the Satversme in conjunction with
Article 4 of the Convention. The abovementioned norm does not at all provide
for any term, within which a person who is not the biological father of the
child could contest paternity. Consequently, the Contested Norm is in breach of
this norm of the human rights binding on the Republic of Latvia.
Although
the objective of the Contested Norm is to ensure stability of a family and
interests of a child, it is still important for a man who is not the biological
father of the child to have the right to contest paternity. This right is
related with private life of a man, whilst the legal interests of the child are
not paramount if compared with the right to private life of the man contesting
paternity.
In
the clarifications, the Applicant indicates that the interpretation of Article
4 of the Convention offered by the Saeima does not comply with the grammatical
text of this article and it could rather be applied to the beginning of the
first sentence of the abovementioned norm. Likewise, the reference of the
Saeima to Article 8 of the UN Convention on the Rights of the Child is
ungrounded.
The
fact that the DNA expert examination to establish paternity is available in
Latvia for a comparatively short period and it cost about 500 lats in 2004.
This sum can be regarded as a considerable one if compared with the minimum
monthly wage of that time.
Taking
into consideration the aforesaid, the Applicant asks the Constitutional Court
to recognize the Contested Norm as non-compliant with Article 92 and Article 96
of the Satversme, as well as with Article 4 of the Convention.
3. The institution that passed
the Contested Act – the Saeima – does not agree with the
arguments of the Applicant and asks the Constitutional Court to recognize the
Contested Norm as ungrounded and to reject it.
Paternity
of a child in cases if the child has been born out of wedlock or 306 days after
divorce is grounded on voluntary recognition of paternity or establishment of
it in court proceedings. In case of voluntary recognition of paternity, a
person who considers being the father of the child, shall voluntarily go to the
registry office, together with the mother of the child, and submit a joint
application. In the cases established by law, an application on recognition of
paternity can be submitted by the father of a child alone. However, if the
child has reached the age of twelve, consent of the child is necessary to
recognize paternity. Section 20 of the Law on Orphan’s Court also provides for
the cases when consent of the Orphan’s Court is necessary for recognizing
paternity.
Since
the law does not restrict, by means of any terms, voluntary recognition of
paternity, then the father of a child can recognize paternity at any time after
the birth of a child or even prior to the birth in accordance with the second
part of Section 155 of the CL. The Law does not stipulate that only such person
who can prove the fact of biological paternity can recognize paternity of a
child.
The
aim of the procedure for contesting paternity is to prevent assumption of
paternity regarding a man who is not the biological father of the child but is
regarded the child’s legal father. Assumption of paternity and recognition of
paternity can be contested before a court.
When
assessing compliance of the Contested Norm with the first sentence of Article
92 of the Satversme, the Saeima indicates that one of the requirements that
reasonably restricts the rights to a fair court is the establishment of a time
period for completion of procedural actions to ensure one of the principles of
a law-governed state – judicial stability, which in the case under examination
is apparent in ensuring priority of the rights of the child.
The
Saeima does not agree with the interpretation of Article 4 of the Convention
proposed by the Applicant. Namely, in the interpretive communication of the
Council of Europe it has been indicated regarding contesting of paternity that
national laws may provide for restriction of the right of persons to contest
paternity in the form of terms. The State can establish groups of persons
subject or not subject to such term. For instance, children are not subject to
such term. The State can likewise provide for different time reference points
for different persons, namely, the date when the term of contesting paternity
shall be calculated. The objective of these provisions is to ensure the children
with a stable legal situation and therefore these terms cannot be too long.
Namely, the aim of these regulations is to ensure that the legal situation of a
child would not depend on the persons who have the right to contest paternity
and the possibilities of these persons to “change their opinion” regarding
contesting of paternity.
Moreover,
according to the interpretive communication of the Council of Europe, it is the
responsibility of the national legislator to appoint persons or institutions
that have the right to contest paternity.
Persons
who have the right to contest paternity need certain time to take the decision.
In this period, they have to decide on their further activities and
subsequently stick to this decision. Consequently, the legislator wants to
prevent recurrent initiation of such case. Likewise, the legislator does not
want to permit any uncertainty regarding the status of a child. The Saeima
holds that the term of two years is appropriate for a person who has recognized
paternity but has subsequently found out about circumstances excluding
paternity to exercise the rights and bring an action before a court regarding
contesting of paternity recognition.
When
examining a particular case at the court, it is possible to establish the
moment when the term for contesting of paternity established in the Contested
Norm has set in. It is not possible to cover all cases and situation in the
law. However, it does not fall within the jurisdiction of the Saeima and the
Constitutional Court to reassess decisions taken in the particular civil cases.
Article
8 of the UN Convention on the Rights of the Child provides that States Parties
undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without
unlawful interference. Consequently, it is in child’s interests to know his or
her paternity. Undue delay could infringe the right of a child to establish his
or her identity.
The
ECHR has indicated that a child has the right to be provided, without unnecessary
delay, with legal security regarding his or her identity. Moreover, the ECHR
has indicated that there does not exist any universally applicable standard for
ensuring paternity that the Member States should necessarily include into their
legal acts.
The
legislator has chosen a lenient restriction of the term for contesting
paternity. In the case under consideration, the Contested Norm does not reject
the Applicant the right to address a court, whilst it provides for a reasonable
term for exercising these rights. In each particular case, the court assesses
the particular date when the term established in the Contested Norm has set in.
Consequently, the restriction has been established
by law, it has a legitimate objective – protection of the rights and interests
of a child, and it is compliant with the legitimate objective. Consequently,
the Contested Norm complies with the right to a fair court established in the
first sentence of Article 92 of the Satversme.
Moreover,
the Saeima does not agree with the opinion of the Applicant that the Contested
Norm infringes the right to private life and that in this case legal interests
of a child are not paramount if compared with the private life of the father
having contested paternity.
Referring
to decisions of the ECHR and the Constitutional Court, the Saeima concludes
that after the expiry of the term for contesting paternity, the interests of
the child are paramount to the interest of the person deemed to be the father
of the child to contest paternity previously recognized. Consequently, no
infringement of the rights stipulated in Article 96 of the Satversme can be
established. As it follows from the facts of the case, the Applicant had doubt
about paternity of the child in 2004 already; however he has not taken any
measures to contest paternity.
Taking
into account the aforesaid, the Saeima asks the Court to reject the application
and recognize the Contested Norm as compliant with the effective legal norms of
higher force.
4. The
summoned party – the Ministry of Justice
– holds that the Contested Norm complies with Article 92 and Article 96 of
the Satversme and with Article 4 of the Convention because it does not infringe
the rights guaranteed to the Applicant by the abovementioned norms.
When
assessing compliance of the Contested Norm with Article 4 of the Convention,
the Ministry of Justice refers to the interpretive communication of the Council
of Europe regarding contesting of paternity and indicates that it falls within
the scope of competence of the national legislator to establish the term of two
years, within which it is possible to contest paternity, and this term does not
deny the rights to contest paternity on its merits.
When
assessing compliance of the Contested Norm with the first sentence of Article
92 of the Satversme, the Ministry of Justice refers to judgments of the
Constitutional Court and concludes that the right to a fair court can be
restricted. One of the restrictions of the right to a fair court is
establishment of a time period for completion of procedural actions, and the
aim of such term is to ensure solving of the case within a reasonable time
frame.
The
legitimate objective of the Contested Norm is protection of the rights of a
child. The Ministry of Justice holds that the term of two years established by
the legislator is appropriate for leaching the legitimate objective. By
referring to decisions of the ECHR, it is concluded that a child has the right
to be provided, without undue delay, with legal security regarding his or her
identity.
According to the Ministry of Justice, the term of
two years is the most lenient term for contesting paternity previously
recognized. In the legal acts of the Member States to the Convention do not provide
for any generally applicable standard regarding ensuring paternity. Moreover,
the legal acts provide for different date when the term for contesting
paternity sets in.
Moreover,
the Contested Norm does not deny the Applicant the rights to address the court.
It only establishes the time frame when this right can be exercised.
Consequently, the Contested Norm complies with the right to a fair court
established in Article 92 of the Satversme.
When
assessing compliance of the Contested Norm with Article 96 of the Satversme,
the Ministry of Justice admits that the right of the Applicant to private life
are not being infringed because in legal relations that involve a child, the
rights and legal interests of the child are paramount. By referring to decisions
of the ECHR it is concluded that, as soon as the term for contesting paternity
expires, the priority shall be granted to the rights of the child rather that
the interest of the Applicant to contest paternity previously recognized. This
conclusion shall be applied in the cases when a person has known or had the
reason to consider of not being the father of the child but has taken no
measures to contest paternity within the established time frame, and the
reasons for inactivity are not related with what has been established in
normative acts. As it follows from the facts of the case, the Applicant had
doubt about paternity of the child already in 2004; however he has not taken
any measures to contest paternity. Consequently, infringement of the rights enshrined
in Article 96 of the Satversme cannot be established.
The
Ministry of Justice also indicates that even if the term for contesting
paternity has expired, the Orphan’s Court, according to Item 5 of Section 16 of
the Law on Orphan’s Court, has the right to lodge a statement of claim to the
court in the child’s interest. Such statement of claim shall be submitted with
the view to ensure the right of the child to individuality, as established in
the second part of Article 8 of the Children’s Rights Protection Law.
5. The
summoned party – the Ministry of
Children, Family and Integration Affairs – informs the Court that Article 4
of the Convention applies to the cases when paternity is being contested by a
person who has previously recognized it on voluntary basis. However, it is
necessary to take into consideration also the fact that the Convention does not
establish any person or institution who would have the right to contest
paternity. The Member State to the Convention is entitled to resolve on this issue
in accordance with its law, and this is Section 156 of the CL that regulates
this issue in the Republic of Latvia.
Article
4 of the Convention does not provide any term for contesting paternity.
However, such term should not be too long and it should ensure a stable legal
situation for the child. By referring to Article 8 of the UN Convention on the
Rights of the Child and Section 8 of the Children’s Rights Protection Law, it
is concluded that knowing paternity is in child’s interests.
Taking
into account the aforesaid, the Ministry of Children, Family and Integration
Affairs holds that the term of two years established in the Contested Norm is
sufficient for a person to lodge a statement of claim at the court regarding
contesting of paternity and to protect his legal interests.
6. The
summoned party – the Ombudsman of the
Republic of Latvia (hereinafter – the Ombudsman) indicates that one of the
ways of recognizing paternity is voluntary acknowledgment of paternity. This is
an unconditional transaction of family law that establishes kindred among the
child and the father, as well as the relatives of the father. Therefore such
acknowledgment cannot be linked with a certain period of time. This is
characterised as irrevocable, irreversible and binding for all. However, as a
transaction, it is subject to general provisions of transaction, and Section
156 of the CL provides for the possibility to recognize the transaction as
void. The Contested Norm provides for a certain term, within which a person can
exercise the rights to contest paternity previously recognized.
When
assessing whether the Contested Norm breaches the right of the Applicant to
protection of rights and lawful interests at the court established in Article
92 of the Satversme and the right to inviolability of private life guaranteed
in Article 96 of the Satversme, the Ombudsman indicates that the abovementioned
rights can be restricted. The general aim of the term established in the
Contested Norm is protection the right of a child to identity and to guarantee
stability of legal status of a child. The legal situation of the child cannot
depend on persons who have the right to contest paternity, as well as the
possibilities of such persons to “change their opinion” regarding contesting of
paternity.
According
to the first part of Section 6 of the Children’s Rights Protection Law, in
legal actions which affect a child, the child’s rights and interests shall be
paramount. The principle of the priority of the rights and legal interests of a
child shall also be applied when dealing with the issues of paternity. The
Ombudsman holds that it is in child’s interests to establish paternity and
ensure stability of the entry of father at the registry office; therefore the
actions taken by the legislator, namely, establishment of a certain term for
contesting paternity previously contested, shall be supported.
When
assessing compliance of the Contested Norm with Article 4 of the Convention, it
can be concluded that this Article applies also to the cases when paternity is
contested by a person who has previously recognized it on voluntary basis if
the person who wants to recognize or has recognized paternity of the child is
not his or her biological father. The explanatory report to the Convention
neither establishes the scope or persons or authorities that would have the
right to appeal or contest voluntary acknowledgment of paternity. The report
neither provides for any term for contesting the recognition. In this respect,
this is the duty of national legislator to decide, and it has the right to
provide for the possibility to contest recognition of paternity by establishing
respective range of persons, as well as it has the right to prohibit contesting
paternity in certain cases with a view to protect and ensure the interests of a
child. The right of the state to establish terms for contesting paternity
follow from the objective of the Convention, the case-law of the ECHR, as well
as from the documents published by the European Council that provide explanation
of application of the Convention.
It follows from the
documents of the Council of Europe that observance of the interests of a child
is priority that would be taken into consideration when dealing with paternity
issue. First, it is most appropriate for the interests of a child if he or she
knows the parents since the birth, and second if stability of a certain status
is ensured.
The
Ombudsman draws attention to the fact that it cannot be concluded from the
facts of the case whether the Applicant has exhausted all remedies of right
protection available in the State. Namely, it cannot be proved whether he has
asked the Orphan’s court to exercise the rights established in Item 5 of
Section 16 of the Law on Orphan’s Court to submit a statement of claim to the
court.
Taking
into account the aforesaid, the Ombudsman concludes that the Contested Norm
complies with Article 92 and 96 of the Satversme and Article 4 of the
Convention.
7. The summoned party – Dr.Iur. Inese Lībiņa-Egner – indicates that paternity is kindred relationship between the father
and the child. The basis of paternity is biologic origin of a child from the
father. However, in the area of family law it can also happen that the child
has not originated biologically neither from the husband of his or her mother
(supposition of presumption of paternity), nor from the person who has
acknowledged paternity of voluntary basis. Therefore the legislator has
provided for the possibility to contest, before a court, paternity that does
exclude the fact of biological paternity.
Recognition of paternity is the way how a man can
establish, by means of a personal and constitutive legal transaction, kindred
between him as the father and his child. The Law does not restrict recognition
of paternity by means of any terms or provisions Moreover, according to the
opinion of legal certainty, acknowledgment of paternity is not possible only
for a certain period of time. The Law does not provide for the duty of a man to
provide actual evidence proving that the child has biologically originated from
him prior to recognizing paternity. The factual assumption is based on the fact
that the man who recognizes paternity of a child is the biological father of
the child. However, provided the absence of such duty of proving the fact may,
this can cause a situation when a man recognizes paternity of the child who has
not originated from him. It is not possible to revoke acknowledgement of
paternity. As paternity is recognized, relationships between the father and the
child are established. However, a man can recognize paternity in the result of
mistake, fraud or duress, and therefore it is possible to contest recognition
of paternity according to the procedure established in Section 156 of the LC.
The
term of two years for contesting of acknowledgment of paternity recognized on
voluntary basis, as established in the Contested Norm, that begins on the date
when the person has found out about conditions that preclude paternity, serves
as a reasonable balance between the rights of a child and those of the person
who contests paternity previously recognized. Stability of paternity previously
recognized regarding the importance of the interests of a child is particularly
important.
Such
term of two years is a substantive and preclusive term that cannot be renewed
in accordance with the provisions of the Civil Procedure Law on renewal of
procedural time periods. Therefore, in the case if the right of a person to
contest paternity are not exercised within the term established in the Law,
they can no more be exercised after the expiry of the term. With a view to
protect the rights of the child, it can be concluded from the first and the
second part of Section 156 of the CL that absence of biological kindred per se
may not serve as sufficient grounds for a court to recognize acknowledgment of
paternity as invalid. It is necessary for a man who contests his recognition of
paternity to prove the fact that he has recognized paternity in the result of
mistake, fraud or duress.
Freedom
of action when determining persons and authorities having the right to
recognize paternity, as provided for the state in Article 4 of the Convention,
shall be interpreted as broadly as possible. In the case under review, Article
4 of the Convention permits to establish in the CL the term of two years,
wherein a person having recognized paternity has the right to contest it.
Otherwise, the right of the person to contest paternity previously recognized
can become unrestricted, which would endanger legal security of the child.
Based
on the aforesaid, I. Lībiņa-Egner holds that the term of two
years is sufficient for a person who has recognized paternity but then found
out about circumstances precluding it, to exercise the rights established in
the Law.
The Constitutional Court has
concluded:
8. The
case was initiated on compliance of the words “within two years calculated from
the day when they have found out about the circumstances that preclude
paternity” of the second part of Section 156 of the CL with legal norms of
higher legal force. However, the abovementioned words of the second part of
Section 156 of the CL do not provide for any time period for completion of
procedural actions, within which paternity recognized on voluntary basis can be
contested in relation to - the mother and the person who has recognized
paternity, as well as to the trustee of the abovementioned person.
Consequently, the Constitutional Court, taking into consideration the extent of
the claim, can assess compliance of the Contested Norm with legal norms of
higher legal power insofar as it applies to procedural rights of the person
having recognized paternity to contest acknowledgment of paternity within the
time period established in the Contested Norm.
The
Applicant holds that the term of two years for contesting paternity, as
established in the Contested Norm, denies him the rights to a fair court on its
merits. Although the constitutional claim contains a request to assess
compliance of the Contested Norm with Article 92 of the Satversme, it still
follows from the application that compliance of the Contested Norm with only
the first sentence of Article 92 of the Satversme is contested. This part of
Article 92 of the Satversme provides: “Everyone has the right to defend his or
her rights and lawful interests in a fair court.”
9. The
Satversme does not directly provide for the cases when the right to a fair
court could be restricted, however this right cannot be regarded as absolute (see: Judgment of 4 January 2005 by the
Constitutional Court, case No. 2004-16-01, Para 7.1). Likewise, it is
necessary to take into account the fact that the content of Article 92 of the
Satversme shall be interpreted in conjunction with Article 89 of the Satversme
that provides that “the State shall recognise and protect fundamental human
rights in accordance with this Constitution, laws and international agreements
binding upon Latvia” because the aim of the legislator was to achieve mutual
harmony between the international and national legal norms.
In
cases, when there is doubt about the contents of the human rights included in
the Satversme, they should be interpreted in compliance with the practice of
application of international norms of human rights (see: Judgment of 30 August 2000 by the Constitutional Court in the case
No 2000-03-01, Para 5 of the Concluding Part and Judgment
of 22 October 2002 by the Constitutional Court in the case No 2002-04-03, Para
1 of the Concluding Part).
The
ECHR, when analysing Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter – CPPHRFF), has indicated that the
right to a fair court is not absolute and can be restricted. However, these
limitations must not restrict or reduce a person’s access in such a way or to
such an extent that the very essence of the right is impaired (see, e.g.: Judgments of the ECHR in the
following cases: Edificaciones
March Gallego S.A. v. Spain, judgment of 19 February 1998, Reports
1998-I, para. 34; García Manibardo v. Spain, no. 38695/97,
para. 36, ECHR 2000-II; Staroszczyk v. Poland, no. 59519/00, para. 125,
22 March 2007).
It neither follows from Article 15
of the UN International Covenant on Civil and Political Rights that that the
rights included therein could be regarded as absolute, and in certain cases
they can be restricted [see: Equality before the courts and the right to a fair
and public hearing by an independent court established by law (Art. 14):
13/04/84 CCPR General comment 13].
Consequently, it follows from the
decisions of the Constitutional Court and the ECHR, as well as the explanatory
note to Section 14 the International Covenant on Civil and Political Rights
that the right to address a court are not absolute and it can be restricted
insofar as the abovementioned right is not denied on its terms.
One of the cases when the right to a
fair court are restricted is established by the regulation of the law that
provides for a certain time period for completion of procedural actions when
exercising rights. The right to a fair court established in Article 92 of the
Satversme are related with the principle of a law-governed state, where
judicial stability is an essential constituent part of the principle of a
law-governed State. To ensure judicial stability, it is possible to apply time
periods determined for the completion of procedural actions, the objective of
such term being ensuring of adjudication of a case within reasonable time
period (see: Judgment of 26 November 2002
by the Constitutional Court in the case No 2002-09-01, Para 1 of the Concluding
Part).
The Constitutional Court has
indicated that the right to a fair court is one of the most
significant rights of a person. Therefore restrictions to this right of a
person shall be determined in the most indispensable cases (see: Judgment of 14 March 2006 by the
Constitutional Court in the case No 2005-18-01, Para 10). The fundamental rights
of a person, including the right to address a court, can be restricted only in
the cases established in the Satversme if it is required by protection of the
rights relevant for the interests of the society and if the principle of
proportionality is being observed.
The Contested Norm establishes
restriction of the right to a fair court, namely, the legislator has included
therein a time period for completion of procedural actions,
within which a person that has acknowledged paternity of voluntary basis has
the right to contest the acknowledgment.
Consequently,
it is necessary to assess whether the restriction of the rights included in the
Contested Norm prohibiting a person to address a court after the expiry of the
term of two years, firstly, has been established by law and, secondly, whether
such restriction has a legitimate objective, and, thirdly, whether such
restriction is compliant with the legitimate objective.
9.1. For the restriction to be admissible, it must comply
with a law adopted according to proper proceedings. The Contested Norm is
included into the CL. The Constitutional Court has no doubt and the case under
review contains no materials that would testify that the Contested Norm cannot
be regarded as adopted by law passed according to proper procedure. The
Applicant, the Saeima and the summoned parties admit that the restriction has
been established by law.
Consequently, there is no dispute
regarding the fact that the Contested Norm has been established by a law passed
and proclaimed according to proper procedures.
9.2. Circumstances and arguments
why it is needed shall be the basis for any restriction of fundamental rights,
namely, the restriction is determined because of significant interests – the
legitimate aim (see: Judgment of 22
December 2005 by the Constitutional Court in the case No 2005-19-01, Para 9, and Judgment of 14 March
2006 by the Constitutional Court in the case No 2005-18-01, Para 13).
It
can be concluded from the application that the Applicant mentions protection of
the rights and legal interests of the child as the legitimate objective of the
Contested Norm. The same legitimate objective is also mentioned by the Saeima
and the summoned parties (see: case
materials, pp. 4, 84, 89, 97, 99 and 103).
The
Constitutional Court shares the opinion of the participants of the case and the
summoned parties that protection of the legal interests of a child is the
legitimate objective of the regulation regarding recognition of paternity.
Protection of human rights in each society begins with that the society
guarantees the rights of the child by ensuring them circumstances allowing them
developing their potential to be better prepared for the life of an adult
person (see: Human Rights Fact Sheet No.10 Human Rights of the Child, Raoul
Wallenberg Institute of Human Rights and Humanitarian Law, UN Human Rights Fact
Sheets, No. 1-25, 4th ed., Lund, 1996, p.160).
This
particularly concerns legal certainty of the identity of a child and serves as
the grounds for further legal relations affecting a child. The UN Committe of
the Rights of the Child has emphasized in particular the necessity to ensure
protection of the rights of the child in early childhood. Protection of the
rights of the child begins at birth when the child is being registered and
gains identity, the right to health, education and social welfare (see: General Comment No. 7 (2005):
Implementing child rights in early childhood, Committee on the Rights of the
Child, CRC/C/GC/7/Rev.1, 20 September 2006, paragraph 25].
It
also follows from the case-law of the ECHR that a child has the right to be
ensured, without unnecessary delay, with legal certainty in legal relations
regarding identity of a child (see, e.g.:
Judgment of the ECHR in the following cases: Rasmussen v. Denmark, judgment of 21 November 1984, Series A no.
87, p. 15, para. 41; Mikulić
v. Croatia, no. 53176/99, para. 65, ECHR 2002-I; Mizzi v. Malta,
no. 26111/02, para. 83, ECHR 2006). The term included into the
Contested Norm ensures stability of legal relations and approximates, as far as
possible, the legal state of the child born out of wedlock to the legal state
of a child born in wedlock. The aim of the term established for contesting of
paternity acknowledged on voluntary basis is to ensure that the legal situation
would not depend on person who have the right to contest paternity and he
possibilities of these persons “to change their opinion” regarding contesting
of paternity (see: „White Paper” On Principles Concerning the
Establishment and Legal Consequences of Parentage, Committee of experts on
Family Law (CJ-FA) of the Council of Europe, 15.01.2002., principle 13: http://www.coe.int/family]. The Senate has also recognized that the
term of two years facilitates protection of the legal interests of a child born
out of wedlock and approximates his legal status with that of a child born in
wedlock (see: case materials, pp. 94 and 95).
It can be concluded from the aforesaid that, to
ensure the right of the child to identity, it is necessary to ensure legal
certainty, and, to reach this objective, a term for contesting paternity can be
established.
Consequently,
the restriction of the fundamental rights has a legitimate objective –
protection of the rights of the child, and it complies with the case
established in Article 116 of the Satversme when the rights of other persons may be subject to restrictions in circumstances provided for by law in
order to protect the rights of other people.
9.3. The principle of
proportionality requires observing a reasonable balance between the interests
of the society and those of a person if the public power restricts the rights
and legal interests of a person. Consequently, it is necessary to assess
whether a balance between the rights of a person to contest paternity
recognized on voluntary basis in the time period of two years beginning from
the moment when he or she has found out about circumstances precluding
paternity, on the one hand, and the duty of the State to ensure protection of
the rights and legal interests of a child, on the other hand, has been ensured.
To
establish whether, when adopting the Contested Norm, the legislator has or has
not infringed the principle of proportionality, it is necessary to investigate
whether the mechanism of protection of the rights of the child created by means
of this Norm can be regarded as the one that restrict, in a non-proportional
manner, the rights of the person who has recognized paternity of voluntary
basis but later has decided to contest this recognition. Namely, it is
necessary to assess whether the legislator, when establishing the term of two
years, has achieved a proportional balance between the abovementioned rights.
The duty of the State
to protect the rights of the child, as established in Article 110 of the
Satversme, is provided in details in the Children’s Rights Protection Law. The
first part of Section 6 thereof provides that in legal actions which effect a
child, the child's rights and interests shall be paramount. The second part of
the same Section provides that “All activities regarding a child, regardless of
which are performed by the state or local government institutions, public
organisations or other physical and legal persons which are occupied with taking
care about the child and his/her upbringing, as well as courts and other rights
protection institutions, shall ensure the priority of the child's interests.”
The Constitutional Court has
concluded that the following principle follows from the aforesaid: in legal relationships, concerning
the child, in all the activities the rights and interests of the child shall
prevail. It means that not only the courts and other institutions shall adopt
their decisions on the basis of the interests of the child, but the legislator
has also to observe it, so that the adopted or amended normative acts would
protect the interests of the child in the best possible way (see: Judgment of 11 October 2004 by the
Constitutional Court in the case No 2004-02-0106, Para 11).
Likewise,
the following conclusion follows from the Preamble and the first part of
Section 3 of the UN Convention of the Rights of the Child: The rights of the
child shall be conferred a greater legal protection and the State activities
regarding legislation should be guided towards best protection possible of the
interests of the child. It has already established in the UN Declaration on the
Rights of the Child that was adopted in 1959 that certain human rights have a
special role regarding children because they reflect the necessity for special
care and attention for them, violability of children and differences between
their world and that of an adult person (see:
Human Rights Fact Sheet No.10 Human
Rights of the Child, Raoul Wallenberg Institute of Human Rights and Humanitarian
Law, UN Human Rights Fact Sheets, No. 1-25, 4th ed., Lund, 1996,
p.160). It can also be concluded from the information provided by
the Senate that the Contested Norm shall be applied and interpreted, among the
rest, in conjunction with Article 110 of the Satversme and the UN Convention of
the Rights of the Child (see: case
materials, pp. 94).
In
the “White Paper” elaborated in 2002 by the European Committee of Experts on
Family Law of the Council of Europe it has been emphasized that, firstly, it is
in the child’s interests to establish paternity at birth and, secondly, to
grant paternity for the rest of the time [see:
„White Paper” On Principles Concerning
the Establishment and Legal Consequences of Parentage, Committee of experts on
Family Law (CJ-FA) of the Council of Europe, 15.01.2002., Part A: http://www.coe.int/family]. Up to the moment when the
paternity is established, the child is denied different rights or he or she
cannot fully exercise the rights, and this fact is in breach of his or her
interests. For instance, paternity may play a great role when establishing
citizenship of a child, his property rights, including social rights, as well
as other legal relations.
10. The Applicant holds that the
restriction of the right to a fair court included in the Contested Norm does
not comply with Article 4 of the Convention, which, according to the Applicant,
does not provide for any term to contest paternity previously recognized on
voluntary basis. The abovementioned article of the Convention provides that
voluntary recognition of paternity cannot be contested or appealed against,
except for cases when contesting or appealing is permitted by a national law.
Likewise, contesting or appealing is permissible if the person, who wants to
recognize or has recognized paternity of a child, is not the biological father
of the child.
The
Constitutional Court admits that interpretation of the right to a fair court
established in Article 92 of the Satversme can be affected by the norms of
human rights included on international documents on human rights. Such
interpretation is of great importance if the respective documents cover a
particular area of human rights. By means of it, it is possible to concretize
the scope of the respective fundamental rights and to establish their content
more precisely. Consequently, to better reveal the content of the fundamental
rights established in Article 92 of the Satversme, the Article shall be
interpreted, in the case under review, in conjunction with Article 4 of the
Convention.
Latvia
became a party to the Convention on 15 May 2003 when the Saeima adopted the Law
“On the European Convention on the Legal Status of the Children Born out of
Wedlock”. Latvia has not attached any disclaimers to the Convention. Therefore
it can be concluded that Latvia has undertaken to fully implement all norms
included into the Convention.
10.1. The Applicant indicates that
Article 4 of the Convention does not establish any term, within which a person
who is not the biological father of the child, could contest paternity
previously recognized on voluntary basis. On the other hand, the Saeima regard
such interpretation as ungrounded. The Ministry of Justice, the Ministry of
Children, Family and Integration Affairs, the Ombudsman and I. Lībiņa-Egner neither agree with such
interpretation of Article 4 of the Convention offered by the Applicant and draw
attention to admissibility of the term of two years established in the
Contested Norm, as well as correlation of this Norm with the Convention (see: case materials, pp. 82, 83, 87, 88, 96,
97, 1091 and 104 – 106).
10.2. When establishing the meaning
of Article 4 of the Convention, it is necessary to take into consideration
Article 31 of the Vienna Convention on the Law of Treaties (hereinafter – the
Vienna Convention), which regulates the provisions for interpreting general
international treaties, and, in the case of necessity, also Article 32 thereof
that provides for supplementary means of interpretation of international
treaties. Both these norms are generally accepted norms of customary law in the
area of interpretation of international treaties (see: Fragmentation of International Law: Difficulties Arising
from the Diversification and Expansion of International Law. Report of the
Study Group of the International Law Commission Finalized by Martti
Koskenniemi, International Law Commission, Fifty-eighth session, A/CN./L.682,
13 April 2006, p.101). Article 31 of the Vienna Convention includes three
separate principles that should be observed when interpreting international
treaties. Firstly, a treaty shall be interpreted in good faith and in
accordance with the principle pacta sunt
servanda. Secondly, a treaty shall be interpreted in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose (see,
e.g.: Advisory Opinion on the
Competence of the General Assembly for the Admission of a State to the United
Nations, I.C.J. Reports 1950, p.8). This means that the treaty should
be assess jointly rather than each norm or phrase separately [see, e.g.: Competence of the ILO to Regulate Agricultural Labour, P.C.I.J.
(1922), Series B Nos. 2 and 3, p.23; United States Nationals in Morocco case,
I.C.J. Reports 1952, pp. 183, 184, 197, 198]. This helps ensuring
efficiency of the treaty and reach its objectives [see: Advisory Opinion on
Minority Schools in Albania, P.C.I.J. (1935), Series A/B No. 64 p. 20].
10.3.
It follows from Article 4 of the Convention that a person that has recognized
paternity of a child but is not the biological father of the child shall be
granted the right to contest paternity.
It cannot be expressis
verbis concluded from the grammatical text of the Convention that the
Member State to the Convention would not have the right to establish, in its
legal acts, restriction for the term, within which a person who is not the
biological father of the child could contest paternity previously recognized on
voluntary basis. As it is established in the Convention, objections regarding
voluntary recognition of paternity can be presented, respectively, recognition
of paternity can be contested only if the person who wants or has recognized
paternity of the child is not the biological father of the child. The Council
of Europe indicates in the Explanatory Report to the Convention on the Legal
Status of Children Born out of Wedlock that the question of those persons or authorities who
may oppose or contest a voluntary recognition is not dealt with by the
Convention (see: Convention on the Legal Status of Children Born out of
Wedlock, Explanatory Report, para. 25, http://conventions.coe.int/Treaty/EN/Reports/HTML/085.htm).
This issue is left to the internal law.
Consequently,
the legislator has the right to establish the possibility to contest
recognition of paternity by establishing a respective circle of persons, as
well as to prohibit a certain group of persons to contest paternity for the
purpose of protecting and ensuring the interests of the child in certain cases.
The Legislator must assess the range of persons who could be conferred or
denied such rights [see: „White Paper” On Principles Concerning the
Establishment and Legal Consequences of Parentage, Committee of experts on
Family Law (CJ-FA) of the Council of Europe, 15.01.2002., Part A: http://www.coe.int/family].
However,
it must be taken into consideration that it is possible to verify validity of
grammatical interpretation of a norm of an international treaty only by assessing
the context and objectives of the treaty.
10.4. To establish the objective of
a treaty, it is necessary to consider its preamble among the rest. It is
generally accepted that a preamble is a substantial part of a treaty that is
applied when interpreting the treaty (see:
Draft Articles on the Law of Treaties
with commentaries, 1996, United Nations, 2005, p. 221). The
Constitutional Court has also recognized that preambles of international
treaties play a great role in interpretation of international treaties (see: Judgment of 29 November 2007 by the Constitutional
Court in the case No 2007-10-0102, Para 76.1).
Preamble
of the Convention provides:
“[..]
Noting that in a great number of member
States efforts have been, or are being, made to improve the legal status of
children born out of wedlock by reducing the differences between their legal
status and that of children born in wedlock which are to the legal or social
disadvantage of the former; [..]
Believing that the situation of children born out of wedlock
should be improved and that the formulation of certain common rules concerning
their legal status would assist this objective and at the same time would
contribute to a harmonisation of the laws of the member States in this field
[..].”
Important
conclusions can be made from the Preamble of the Convention. First, legal
differences between the children born out of wedlock and those born in wedlock,
the first have a worse social situation if compared to the latter. Second, the
State has the duty to reduce or eliminate, within limits, all such differences.
When assessing the Contested Norm in this context, it can be concluded that it
provides legal certainty and certain social stability to the children born out
of wedlock. If it were assumed that the person having recognized paternity on
voluntary basis could contest the recognition of paternity, then legal and
social security of a child would become relative and unpredictable as to its
legal consequences. Furthermore, each time when a person having recognized
paternity on voluntary basis would want to contest the recognition repeatedly,
this would cause problems of social and legal nature to the child. However,
this would be in breach of what has been established in the Preamble of the
Convention.
Consequently,
the Constitutional Court has no reason to hold that the term of two years
established in the Contested Norm is not compatible with the aim of the
Convention, which is included in the Preamble.
10.5. With the view to establish
the content of Article 4 of the Convention, it is necessary to take into
account the context of validity of the Convention. It is possible establish the
context of validity of the Convention
from the entire Convention in general, and this is as follows: It is necessary
to assimilate, within limits, the legal situation of the children born out of
wedlock with that of the children born in wedlock. This is clearly indicated in
the Explanatory Report to Article 8 of the Convention (see: Convention on the Legal Status of Children Born out of Wedlock. Explanatory Report.
http://conventions.coe.int/Treaty/EN/Reports/HTML/085.htm).
A
situation when a person having recognized paternity on voluntary basis would have
the right to decide for an unlimited period of time after he has found out
about circumstances precluding paternity whether to contest paternity
previously recognized on voluntary basis would be in breach of the context of
the Convention. In such case, the legal and social situation of the child born
out of wedlock would be unstable and thus it would be less favourable if
compared to the legal situation of the child born in wedlock.
10.6.
According to the third part of Article 31 of the Vienna convention, any
subsequent practice in the application of the treaty, as well as any relevant
rule of international law applicable in the relations between the parties shall
be taken into account, together with the context [see, e.g.: Competence of the ILO to Regulate Agricultural Labour, P.C.I.J. (1922),
Series B, No. 2, p.39; Corfu Channel case, I.C.J. Reports 1949, p.25].
When
considering the case-law of different States that are not a party to the
Convention regarding contesting of paternity previously recognized on voluntary
basis, the Court concludes that case-law of the States differs. For instance,
Section 82.1 of the Family Law of Croatia provides that recognition of
paternity can be contested within the time period of six month from the date
when the person has found out about circumstances precluding paternity, but no
later than after the child has reached the age of seven. Under the first part
of Section 93 of the Family Code of Slovakia, the term for contesting paternity
constitutes three years. Chapter 7 of the Family Law of Estonia and Section 136
of the Civil Code of Spain provides that the term for contesting paternity
shall be one year. The ECHR has also concluded in its case-law that the
Contacting States’ legislation on contesting paternity has no universally
adopted standard (see, e.g.: Judgment of
the ECHR in the case Shofman v. Russia, no. 74826/01,
para. 37, 38; 24 November 2005). Therefore it can be concluded that
the case-law of the states differs, and the international law does not provide
for any particular term that should be observed when contenting paternity
recognized on voluntary basis.
The
Constitutional Court has already recognized that legal regulation of other states, when solving
separate issues of the Latvian legal system, can not be directly applied, apart
from the cases established by law. In the analysis of comparative rights, one
has to take into account the functional context (see: Judgment of 8 June 2007 by the Constitutional Court in the case No
2007-01-01, Para 24.1). Likewise, in the survey on
modernization of the chapter on Family Law of the CL it has been concluded that
transfer of the rights to contest to a certain circle of person is the issue
left to the national legislation of each state, which is influenced by the historical
development of the State and the experience in solving of the particular
question (see: Conclusion No. 58 of the
Survey on Family Law, Modernization of the Chapter “Family Law” of the Civil
Law, http://www.tm.gov.lv/lv/ministrija/imateriali/petijumi.html).
However, it should be taken into consideration that the aim of the
international treaty is to approximate national legislations within limits by
ensuring protection of the rights of a person at a certain level in all Member
States of the Council of Europe.
Consequently,
the Constitutional Court must carry out a special assessment of the case-law of
the Member States regarding establishment of the terms for contesting paternity
after coming into force of the Convention.
Also
when assessing legal regulation of the Member States to the Convention
regarding contesting of voluntarily recognized paternity, it is not possible to
make a general and unequivocal conclusion that would serve as evidence for
harmonisation of national legislation in this respect. The States have adopted
or continue applying different legal acts regarding contesting of paternity
previously acknowledged on voluntary basis. Some of the States provide for the
term for contesting of voluntarily recognized paternity: six months according
to Section 57 of the Family Law of Check Republic, one year according to the
fourth part of the Civil Code of Lithuania and Section 80.1 of the Law on
Family and Guardianship of Poland, and Section 260.c of the Civil Law of Swiss;
three years according to Section 339 of the Civil Code of Luxembourg. Likewise,
circumstances that serve for establishment of the beginning of the
abovementioned term differ in the States. It is also possible to conclude that
in certain States the term has not been established at all or the term of it is
supplementary restricted by providing for the age of the child, which is not
the date when the persons finds out about circumstances precluding paternity.
In the result of summarizing the case-law of the States, it is not possible to
make a general and unequivocal conclusion.
Taking into consideration the fact that the content
of Article 4 of the Convention has been established by applying provisions for
interpretation international law, the Court does not have to apply
supplementary means of interpretation.
Consequently, the Contested Norm is
not in breach of Article 4 of the Convention and Article 92 of the Satversme.
The Constitutional Court has no reason to hold that the legislator, when
adopting the Contested Norm, would have elaborated such legal regulation that
would restrict the rights of a person, who has recognized paternity but then
has decided to contest it, to a fair court in a non-proportional manner
11. Article 96 of the Satversme
provides among the rest that everyone has the right to inviolability of his or
her private life. The Applicant holds that the rights of a child to private
life are not priority if compared with the rights of the man who contests
paternity previously recognized on voluntary basis to private life.
When interpreting
the right to private life guaranteed in Article 96 of the Satversme, the
Constitutional Court has indicated that these rights could cover different aspects.
It protects the physical and moral integrity, honor and reputation, use of
person’s name and identity, personal data of a person. The right to private
life means that the individual has the right to its private home, the right to
live as he likes, in accordance with his nature and wish to develop and improve
the personality, tolerating minimum interference of the state or other persons.
The right includes the right of an individual to be different, retain and
develop virtues and abilities, which distinguish him from other persons and
individualizes him (see: Judgment of 26
January 2005 by the Constitutional Court in the case No 2004–17–01, para 10).
The right to
inviolability of private and family life are guaranteed also in Article 8 of
the European Convention on Human Rights. The ECHR has recognized that the right
to inviolability of family and private life include the right to establish and
develop relations with other persons (see,
e.g. Judgments in the following cases of the ECHR: Niemietz v. Germany, judgment of
16 December 1992, Series A no. 251-B, para 29; Perry v. the United Kingdom, judgment of 17 July
2003, Reports of
Judgments and Decisions 2003-IX, para 36;
Biriuk v. Lithuania, judgment of
25 November 2008, application nr. 23373/03,
para 34). On the other hand, the right to family life does not mean
the right to maintain relations with the members of the family. The ECHR has
reiterated that an essential element of family life is the possibility of the
children and the parents to enjoy presence of one another (see, e.g. Judgments in the following cases of the ECHR: Berrehab v. the Netherlands, judgment of 21 June
1988, Series A no. 138, para. 23; X v. Croatia, judgment of
17 July 2008, application no. 11223/04, para. 3).
11.1.
The argument of the Applicant regarding the fact that the Contested Norm
restricts his rights to private life without reason is at a certain extent
related with the negative aspect of this right. Based on such understanding of
private life, a person should be conferred the right to private life and the
right to contest paternity recognized on voluntary basis and without reason,
according to the point of view of the person. Namely, the Contested Norm
prohibits ceasing maintaining of undesirable family relations or similar relations
with the same social bonds with a child whose paternity has been recognized on
voluntary basis.
The Constitutional Court
has already indicated that the objective of the restriction included in the
Contested Norm is observance of the rights of the child. Encouraging of
voluntary recognition of paternity (accordingly – decrease of the possibilities
of opposing or contesting of voluntary recognition of paternity) is in
conformity with the rights and freedoms of the child and promotes the
protection of the interests of the child, as it improves the status of
children, born out of wedlock and balances the legal status of children born
out of wedlock and that of the children born of a marriage. The prohibition to
oppose voluntary recognition of paternity is necessary to protect the rights of
the child (see: Judgment of 11 October
2004 by the Constitutional Court in the case No 2004-02-0106, Para 13.2).
11.2. Of course, it is not possible to question the fact
that voluntarily recognized paternity affects the private life of the man
having recognized it. However, along with such recognition, the private life of
the child is also affected for a long term. The state is obligated to protect
both these rights, taking into account the special area of regulation of the
rights of the child. The rights of the person having recognized paternity of
voluntary basis are protected in a way that, according to the second part of
Section 156 of the CL, he is conferred the rights to contest recognition of
paternity within the period of two years starting from the date when he has
found out about circumstances precluding paternity. However, the rights of the
child are protected in a way that after the expiry of the abovementioned term
certain legal stability and predictability sets in the relations between the
child and the person having recognized paternity. Consequently, the
Constitutional Court has no reason to hold that balancing of the abovementioned
rights, when establishing term for contesting of paternity recognized on voluntary
basis, would be arbitrary and would restrict the rights of the Applicant to
private life in a non-proportionate manner.
Moreover, the
ECHR has recognised that in the case when, according to Article 8 of the
European Convention on Human Rights, the rights of parents and those of a child
are being assessed, the rights of the child shall prevail. If it is necessary
to assess the interests of the parties, then those of the childe shall prevail
(see: Judgment of the ECHR in the case Yousef v. the Netherlands,
no. 33711/96, para. 73, ECHR 2002-VIII).
Moreover, it is
necessary to take into consideration the fact that, under Item 5 of Section 16
of the Law on the Orphan’s Court, the Orphan’s Court has the right to submit a
statement of claim at the court in the child’s interests also regarding
contesting of paternity previously recognized on voluntary basis. The Orphan’s
Court has the rights to exercise such rights in case if it holds that
contesting of paternity is in the child’s interests. Exercise of such right
depends on the considerations of usefulness made within the framework of the
freedom of action conferred to the Orphan’s Court. Thus Item 1 of Section 17 of
the Law on Orphan’s Court is implemented and the rights of the child are being
protected. Consequently, the legislator has provided for a supplementary
mechanism for protection of the rights of the child in the case of necessity.
Consequently, the
Constitutional Court has no reason to hold that the Contested Norm, when
establishing the term for contesting paternity previously recognized on
voluntary basis, restricts the rights of the person having recognized paternity
to private life.
12. The legal status of children born out of wedlock is
characterized by the stability of legal family relations based on the Law. Such
Stability creates preconditions for a child to be ensured with constant care,
social and other kind of guarantees (see,
e.g.: Section 177 of the CL). However, voluntary recognition of paternity
regarding children born out of wedlock ensure them with a similar legal
stability if compared with that of children born in wedlock.
The Constitutional Court holds that the term
established in the second part of Section 156 of the CL, which is two years
from the date when the person has found out about circumstances precluding
paternity, is sufficient for a person to be able to assess objectively his
decision of possible contesting of paternity. However, the date when the
abovementioned term of two years sets in is established by the court of general
jurisdiction based on the evidence of the case under consideration. Moreover,
it is also necessary to take into account what has been established in the
first part of Section 156 of the CL, namely, a court may
declare an acknowledgement of paternity null and void only if a person who has
acknowledged that a child is his, cannot be the natural father of the child and
he has recognised the child as his as a result of mistake, fraud or duress
Although it has not been expressis verbis indicated in the application, it still follows
from the application that the Applicant, in fact, does not agree with the
opinion of the court of general jurisdiction regarding the date when the term
for contesting paternity has set in. Namely, it follows from the judgments that
this date is 4 October 2004 when a judgment on recovery or allowance was
prepared. It can be concluded from this judgment that the Applicant has not
recognized paternity regarding the child, in favour of whom an action was
brought regarding recovery of allowance. Since the action regarding contesting
of paternity was brought on February 2007, the term established in the
Contested Norm has expired according to the decisions of the courts. However,
according to the Applicant, the term should be calculated as from autumn of
2006 when he has found out about the circumstances precluding paternity.
The Constitutional Court indicates that, first of all,
it falls within its jurisdiction to assess constitutionality of the particular
Contested Corm or legal act. The area of authority of the
Constitutional Court is established in Article 85 of the Satversme, as well as
in Article 1 and Article 16 of the Constitutional Court Law. Assessment of
application of norms does not fall within the scope of responsibility of the
Constitutional Court (see: Judgment of 2
June 2008 by the Constitutional Court in the case No 2007-22-01, Para 18.1).
Likewise, the Constitutional Court does not have the
right to reassess the process of assessment of evidence made by the court of general
jurisdiction as to review the result of the process. It falls within the
jurisdiction of the court of general jurisdiction to decide on admissibility
and applicability of evidence, as well as to provide its assessment in
accordance with procedural legal norms.
The circumstances mentioned in the second part of
Section 156 of the CL that preclude paternity, according to Item 5 of the
Second part of Section 128 of the Civil Procedure Law, shall be indicated by
the applicant, whilst assessment of these circumstances does not fall within
the jurisdiction of the court of first instance or that of the appellate
instance court (see: case materials,
information provided by the Senate, pp. 92). The term established in the
second part of Section 156 of the CL is calculated from the moment when the
person having recognized paternity, the trustee or the mother of the child
“have found out about the circumstances that preclude paternity”. Consequently,
the freedom of action regarding the preconditions on setting in of the term
established in the norm is granted to the court of general jurisdiction when it
examines a particular case.
Although in certain cases it is possible that the
general wording “have found out about the circumstances that preclude
paternity” used in the Contested Norm could be applied in a comparatively
non-consistent manner based on the principle of legal certainty, the
Constitutional Court does not have the right to reassess the decision provided
by the court of general jurisdiction regarding the date when the term
established in the Contested Norm sets it. Having established problems in
application of the respective norm, it is possible to elaborate recommendations
regarding interpretation of effective legal norms according to the Law “On
Judicial Power, Sections 49 and 49.1. The legislator, also having established that there are problems
when applying a particular legal norm, can take a decision to establish a more
detailed regulation in the respective norms of the CL regarding the beginning
of calculation of the abovementioned term. The Constitutional Court, according
to the authority granted by the Constitution and the Constitutional Court Law,
has not been conferred the right to initiate legislation. Neither it has been
conferred the right to assess lawfulness of decisions taken by the court of
general jurisdiction.
The Constitutional Court
Based on Articles 30 – 32 of the Constitutional
Court Law
h o l d s :
The words “within two years
calculated from the day when they have found out about the circumstances that
preclude paternity” of the second part of Section 156 of the Civil Law comply
with Article 92 and Article 96 of the Satversme of the Republic of Latvia.
The Judgment is final and not subject to appeal.
The Judgment comes into force as on the date of
publishing it.
Presiding Judge
G. Kūtris