CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                          Application No. 32669/96                      by C. V.                      against Italy          The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                L. LOUCAIDES                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ           Mrs. M. HION           Mr.   R. NICOLINI             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ;        Having regard to the application introduced on 20 July 1996 by C. V. against Italy and registered on 20 August 1996 under file No. 32669/96 ;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission ;        Having deliberated ;        Decides as follows :   THE FACTS        The applicant is an Italian national, born in 1962 and currently resident in Nocera Inferiore (Salerno). Before the Commission, she is represented by Mr. Giuseppe Faiella, a lawyer practising in Nocera Inferiore.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 14 March 1955, the applicant's mother, Mrs. P., and her husband, Mr. V., signed a deed of legal separation. By order of 30 May 1955, the President of the Salerno District Court ratified the deed. The applicant has indicated that from that date Mrs. P. and Mr. V. ceased living together and had no further relationship of any kind.        The applicant was born on 2 September 1962 and registered, according to the relevant provisions of Italian law, as the legitimate child of Mrs. P. and Mr. V. However, the applicant has pointed out that at the date of her conception, her mother was living with Mr. G., while Mr. V. was confined in a mental asylum.        On 19 April 1984, Mr. V. died and on 30 June 1985 Mrs. P. married Mr. G.        On 18 March 1986, the applicant summoned her mother and Mr. G. before the Salerno District Court seeking recognition of her status as the defendants' legitimate child. On 8 October 1986, Mrs. P. and Mr. G. declared to the Salerno investigating judge that the applicant was their daughter. The hearing of 12 March 1987 was adjourned at the applicant's request. As none of the parties was present at the hearings of 8 October 1987 and 25 February 1988, the investigating judge decided to strike the case out of the list.        On 24 May 1993, Mr. G. died.        On 13 September 1993, the applicant filed an application before the Salerno District Court for leave to bring an action for recognition of her status as Mr. G.'s natural child. Pursuant to an order issued on 16 December 1993 by the President of the Nocera Inferiore District Court, on 29 December 1993 this application was served on the applicant's mother and on Mr. G.'s brother.        In an order of 26 January 1994, the Nocera Inferiore District Court declared the application inadmissible. The Court observed that the applicant had the status of legitimate child of Mr. V. and that under Article 253 of the Civil Code, read in conjunction with Article 269, any declaration of natural paternity was not allowed.        On 5 February 1994, the applicant appealed to the Salerno Court of Appeal. She pointed out that her mother and Mr. V. lived separately from 1955 onwards and that, according to Articles 234, 238 and 248 of the Civil Code, a child born more than 300 days after the legal separation of the mother from her husband is presumed not to be legitimate. Being born in 1962, she could not be considered the legitimate child of Mr. V. and her action for recognition of natural child status should consequently be declared admissible.        In an order of 28 April 1994, filed with the registry on 3 May 1994, the Court of Appeal dismissed the applicant's complaint. The court observed that the applicant's status of legitimate child precluded her from bringing any action to obtain a declaration regarding her natural affiliation and that that status could have been challenged only by bringing an action to contest legitimacy ("azione di disconoscimento della paternità"). However, in the instant case such an action was time-barred under Article 244 para. 3 of the Civil Code, according to which "the action to contest legitimacy can be brought by the child within a period of one year from the date on which he or she reached his or her majority or from the moment on which he or she became aware of the facts that render the action admissible".        The applicant lodged an appeal on points of law against this decision. In a judgment of 3 July 1995, filed with the registry on 25 January 1996, the Court of Cassation dismissed the applicant's appeal. The court noted that when the applicant was born, in 1962, Italian law prescribed a presumption of legitimacy that could not be rebutted merely by the fact that the married couple had legally separated and that the status of legitimate child had thus been regularly attributed to the applicant according to the rules in force at the relevant time. The court upheld the remainder of the Court of Appeal's reasoning.     COMPLAINT        Invoking Article 8 of the Convention, the applicant complains about the decisions dismissing her application for leave to bring an action for recognition of her status as Mr. G.'s natural child. She alleges that she has been deprived of the right of being legally recognized as the daughter of her "real" father.     THE LAW        Invoking Article 8 (Art. 8) of the Convention, the applicant complains about the decisions dismissing her application for leave to bring an action for recognition of her status as Mr. G.'s natural child.        Article 8 (Art. 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."        The applicant points out that the status as Mr. V.'s legitimate child, which prevented her from bringing the action in question, was attributed to her on the basis of the old text of Article 232 of the Civil Code. Although this provision was amended in 1975, the Italian legislator did not provide that it could apply retrospectively, thus depriving her of the right of being legally recognized as the daughter of her "real" father.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        In the present case, the Salerno Court of Appeal and the Court of Cassation declared inadmissible the applicant's application for leave to bring an action for recognition of the status of natural child because she had failed to bring an action contesting legitimacy within the period   of one year from the time she became aware that she was not Mr. V.'s legitimate daughter, as provided for by Article 244, para. 3 of the Italian Civil Code. In these circumstances, where failure to respect procedural rules constitutes the reason for the refusal of a remedy, the Commission cannot consider that the requirement as to the exhaustion of domestic remedies has been satisfied (N° 10636/83, Dec. 1.7.85, D.R. 43, pp. 171, 173).        The Commission further considers that in the present case there were no special circumstances that could have absolved the applicant from the obligation to exhaust domestic remedies, according to the generally recognised rules of international law.        It follows that the applicant has not met the requirements of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies and that the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                        J. LIDDY      Secretary                           President to the First Chamber                of the First Chamber