CEDH · CASELAW;CLIN;ENG — 2 juin 2005

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 76 June 2005 Znamenskaya v. Russia - 77785/01 Judgment 2.6.2005 [Section I] Article 8 Article 8-1 Respect for private life Denied registration of uncontested paternity in respect of stillbirth: violation   Facts :In August 1997, in the thirty-fifth week of the applicant’s pregnancy, the embryo asphyxiated in her womb. Mr Z., who had been the applicant’s husband until their divorce, was entered as the stillbirth’s father in the birth certificate and in the birth register. The applicant submitted however that the biological father of the stillbirth had been Mr   G., with whom she had been living since 1994. They were unable to file a joint declaration of paternity because G. had been placed in detention in June   1997, following which the applicant had been unable to see him. In October 1997 G. died. In August 2000 the applicant requested the District Court to establish G.’s paternity in respect of the stillbirth and to amend the child’s surname and patronymic name accordingly. She relied on Article 49 of the Family Code according to which, if a child is born to parents who are not married to each other and there is no joint declaration or declaration by the child’s father, the paternity of the child shall be established in court proceedings on the application of either parent. The court shall then have regard to any evidence capable of establishing the child’s paternity with certainty. In November 2000 Z. also died. In March 2001 the District Court ordered the discontinuation of the proceedings, holding that Article 49 of the Family Code only applied to living children. The City Court upheld that decision, finding that the case could not be examined as a civil action because the stillborn child had not acquired any civil rights. Law :The core of the applicant’s grievance was the impossibility of having her stillbirth’s patronymic name and surname amended so as to reflect its biological descent from her late partner G., notwithstanding the legal presumption that her husband Z. was the father of the child. The case was therefore distinguishable from situations where domestic authorities had opposed the parents’ choice of a child’s forename or their request to give a child the mother’s surname rather than the father’s. Nor was the case-law concerning a person’s request to change his or her own surname applicable, because a stillborn child could not be considered to have acquired a right to respect for his private or family life separate from that of his mother. Bearing in mind that the applicant must have developed a strong bond with the embryo, whom she had brought almost to full term, and that she had expressed the desire to give him a name and bury him, the establishment of his descent undoubtedly affected her “private life”. The existence of a relationship between the applicant and G. was undisputed and no one had contested his paternity. As the child was stillborn, the establishment of paternity did not impose a continuing obligation of support on anyone involved. It appeared therefore that there were no interests conflicting with those of the applicant. In refusing the applicant’s claim the domestic courts did not refer to any legitimate or convincing reasons for maintaining status quo . Moreover, the Government had accepted that the domestic courts had erred and that under the applicable family-law provisions the applicant’s claim should have been granted. A situation where a legal presumption was 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, was 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. Conclusion : violation (four votes to three). Article 41: The Court awarded EUR 1,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes