Family Law - Paternity cases: The struggle for truth against time and limitation period
By George Kazoleas, Lawyer
Two recent cases, one by the European Court of Human Rights and the other by the Athens Court of First Instance with similar facts, show once again that justice can dispel the darkness caused by human deceit having as a result the distortion of real facts.
Time, was essentially the reason why the courts in Serbia denied the 50-year-old Peda Boljevic the right to know the truth about who his biological father was. Until 2011 he believed that A was his real father but when he died, Boljevic discovered in old court rulings around 1970 that A could not be his biological father. So, at the beginning of 2012, he filed a lawsuit with his mother, invoking the old decisions by also adding the argument that back then there was no DNA test, but today this could be done based on a court decree.
The courts in Serbia, both the court of first instance and the court of appeals, rejected his application as lapsed, after so many years. In particular, such requests for reconsideration of a case based on new evidence or facts may be submitted within 5 years after the final decision under national law, which meant that Boljevic should have submitted the request in 1977. The Court of Appeal stated that the fact that he had recently become aware of the old decisions of 1970’s was irrelevant, his rights had been secured in the initial court proceedings by his legal guardian. The rejection judgment of the two courts was confirmed by the Constitutional Court in 2014. Three times, with an equal number of court decisions, the judicial system blocked Boljevic the way to the search for the truth. He thus appealed to the European Court of Human Rights.
Τhe transcendence of the ECtHR
The European Court of Human Rights has dealt with the matter differently. It initially acknowledged the legal correctness of the Serbian courts' rejection decisions to reopen the paternity case on the grounds of legal certainty and protection of the rights of third parties (ie a short deadline for infringing paternity in order to protect the recognized father and possible injustice by overturning things from very old events).
However, the Court, going beyond legal formalism, found that legal certainty was not in itself a sufficient reason to prevent the applicant from exercising his right to discover the truth of his origin, given the circumstances of his case and the issue at stake for one who was about to learn such an important element of his personal identity. The Court also acknowledged that there was no legal way to extend the time limit for requesting a paternity review, and that the personal life of the deceased, officially recognized, father, would not be affected by a DNA test nor it could be shown what the family's reaction would be in such a case. On this ground, the Court ruled that the Serbian judicial system did not guarantee Boljevic the right to privacy as guaranteed by the European Convention, and that Article 8 ECHR had therefore been violated.
The decision of the ECtHR is very important because it disputes (if it does not overturn) the invocation of the statute of limitation of the claim as a reason for rejecting the application for retrial of the paternity case. Even in a case like this one, where the claim was extinguished in 1977, that is, more than 40 years ago, allowing legal certainty to recede in the face of a person's right to discover his real father, as an element of his personal identity.
Lawsuit against parents
A similar story was examined in Greece, by Athens Court of First Instance. This time the plaintiff, about 40 years old, filed a lawsuit against her father and mother. The defendants' marriage was at some point dissolved and while the father was generally careless to his daughter, a third man "showed inexplicable feelings of love towards both the plaintiff since her childhood and her mother", as the decision states. In fact, when this man died, he left in his will the plaintiff as his only heir, without naming her as his daughter, while evidence of money transfer to her was found. According to the decision, the plaintiff asked her mother about her real relationship with this third man and if this was her biological father, but her mother categorically denied that she had an affair with him and that the plaintiff was his own child. The explanation she gave for the expressions of love for the plaintiff was sympathy, since he had not had a family of his own.
The applicant, however, underwent DNA testing, which resulted in the third man having a 99.99% chance of being his biological father. Subsequently, she brought an action, in which she claimed to be the real child of this man from the relationship that her mother maintained with that person before her marriage to her first defendant, presumed father. The mother denied these allegations.
The deadline for filing a paternity lawsuit
The prescription period in Greece for filing a lawsuit against paternity is one (1) year from the child coming of age, therefore the plaintiff would have lost the right to a lawsuit since 1999. However, due to the combination of articles 255, 257, and 279 of the Greek Civil Code, the prescription period, as well as the limitation period of the claims due to the proportion of law, were suspended, inter alia, for as long as the beneficiary was prevented by the deceit of the obligor from exercising the right, and the deceit of the obligor must coincide with the last six months of the limitation period or the prescription period.
According to the decision, ‘deceit’ means any action of the obligor aimed at the inaction of the right and the completion of the limitation period to file the claim, carried out, in particular, with misleading demonstrations tending to create in the beneficiary impressions about the satisfaction of his claim and inaction during the last semester of the limitation period. Such fraudulent behavior of the obligor, therefore, exists when the latter provokes the commencement of negotiations to find a compromise solution, which seem to be done for this purpose, but which are in fact directed at continuing the inaction of the beneficiaries or when dilatory discussions are held with the beneficiary in order the latter no to exercise his claim in a timely manner. This behavior was attributed by the plaintiff to her mother.
In this case, the Court of First Instance ruled that the conditions of the legal provision on the suspension of the limitation period and therefore the one-year mandatory time-limit for the infringement of paternity by the plaintiff was suspended until 02/05/2018, to be completed after the lapse of six months (Article 257 § 2 of the Civil Code). As a result her lawsuit, which was filed about a month later, is timely. The court finally ordered a retrial in order to carry out a medical examination, ie a DNA test.
This is a fair confrontation of this judicial issue, which is crucial for the applicant's personality. Otherwise, the end of the short prescription period of one year from adulthood would lead to unfair results as it would deprive the child of the right to challenge paternity. Here again legal certainty falls short of the child's right to know the truth and its real father. In a short time the plaintiff will probably be able to confirm in court what in real life she had suspected. That someone else was her real father.
The above two decisions are an expression of the adaptability of the law and of the legal system to social needs and current circumstances while in parallel putting aside the formal application of the statute of limitations, which despite of the fact that it is an institution of substantive law, often "loses" its substance.
Behind the files of the cases, the condensed legal documents, the labyrinthine legal provisions and the reasoning of the court decisions, are the people and their lives, their mistakes and weaknesses, but also their right to know the truth, which, as by its nature, survives and can be disclosed beyond time limits.
George Kazoleas is Lawyer in Cyprus. Contact him: email: firstname.lastname@example.org / tel: +357 95129382