CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2006

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margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s60723A49 { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF43307A6 { width:17.2pt; display:inline-block } .s6EC4715C { width:180.07pt; display:inline-block } .s40964402 { width:201.63pt; display:inline-block }     FIRST SECTION     CASE OF MIZZI v. MALTA     (Application no. 26111/02)     JUDGMENT     STRASBOURG     12 January 2006       FINAL     12/04/2006       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision   In the case of Mizzi v. Malta, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mr   D. Spielmann,   Mr   S.E. Jebens , judges ,   Mr   J. Filletti, ad hoc judge , and Mr S . Quesada , Deputy Section Registrar , Having deliberated in private on 8 December 2005, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 26111/02) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Maurice Mizzi (“the applicant”), on 5 July 2002. 2.     The applicant was represented by Mrs   M.   Farrugia, a lawyer practising in St Venera (Malta), and by Mr   D.   Pannick and Mrs C. Weir, two barristers practising in London. The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General. 3.     The applicant alleged that he had been denied access to a court with regard to his action for disavowal, that the irrebuttable presumption of paternity applied in his case amounted to a disproportionate interference with his right to respect for his private and family life and that he had been discriminated against in the enjoyment of his rights under Article   8 and/or Article   6 § 1 of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr G. Bonello, the judge elected in respect of Malta, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr J. Filletti to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1). 6.     By a decision of 9 December 2004 the Court declared the application admissible. 7.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1936 and lives in Bidnija (Malta). A.     The background of the case 9.     The applicant is a well-known businessman in Malta. On 29   December 1963 he married a Maltese national, X, in a Catholic ceremony. In 1966 X became pregnant; at that time she was still living together with the applicant, who was aware of the pregnancy. In March   1967 the applicant and X separated and stopped living together. On 4   July   1967 X gave birth to a child, Y. 10.     The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test, although such a test would not have been conclusive under Maltese law, which did not allow him to institute an action to rebut the legal presumption that he was Y’s father. He was registered as the natural father of the child. 11.     A few months after Y’s birth, X refused to carry out the blood test. This behaviour intensified the applicant’s suspicions regarding the child’s paternity. He alleged that he distanced himself completely from Y and, although legally obliged to pay maintenance for her until she reached the age of majority, he had no relationship with her. This is disputed by Y (see “D. The statements by Y and by the applicant” below). 12.     The applicant legally separated from X on 2 March 1968 by means of a contract of voluntary separation. Subsequently the marriage was annulled by a decree of the Court of Appeal of the Vicariate of the City of Rome on 24   April 1972. 13.     According to the applicant’s version of events, on an unspecified date after 1993 Y contacted him and volunteered to undergo a blood test. Scientific examinations were carried out in Switzerland and concluded that the applicant was not Y’s biological father. However, in a written statement attached to the Government’s observations on the merits, Y declared that the DNA test had been carried out in 1990 and not in 1993. She further stated that the results of this test had never been shown to her. B.     The constitutional proceedings before the Civil Court 14.     On 1 November 1996 the applicant lodged an application with the Civil Court (First Hall), seeking a declaration that notwithstanding the provisions of the Maltese Civil Code, he had a right to proceed with an action for disavowal of paternity. 15.     The applicant alleged that the right to respect for his private and family life included the right to have family relationships governed by biological certainty and not by a legal presumption conflicting with the reality of the facts. He considered that the lack of any remedy in that respect violated Article 8 of the Convention, as interpreted by the Court in the case of Kroon and Others v. the Netherlands (judgment of 27 October 1994, Series A no. 297-C). 16.     In submissions filed with the Civil Court the applicant also invoked Articles 6 and 14 of the Convention, alleging a potential violation of his right of access to a court and his right not to be discriminated against vis-à-vis the mother of the child, the child herself or any third parties who, unlike the betrayed husband, were free to deny legitimacy without being subject to any time-limit. 17.     In a judgment of 30 May 1997 the Civil Court allowed the applicant’s application. It observed that Articles 70 and 73 of the Civil Code had never allowed him to adduce scientific and genetic evidence to prove that the child borne by his former wife was not in fact his daughter. Therefore, there had been a violation of Article   8 of the Convention. 18.     The Civil Court considered that the status of father was intimately linked with private life. Therefore, laws establishing how ties of filiation could be created and dissolved could interfere with the right guaranteed by Article 8 of the Convention. It furthermore observed that national law had never allowed the applicant to adduce scientific evidence in order for the family relationship in question to be governed by biological certainty and not by a legal presumption. In fact, under Article 70 of the Civil Code, as in force at the relevant time, the father could only repudiate paternity on the grounds either of physical impossibility of cohabitation or of legal separation during the possible period of conception. Moreover, the husband could not repudiate a child on the ground of adultery, except where the birth had been concealed from him. As the applicant had been cohabiting with X at the time of Y’s conception and had been aware of her birth, no action for disavowal could have been brought within the period of three months from the date of the birth as set forth in the relevant domestic provisions. It was true that the Civil Code had been amended in 1993, and that under the new Article 70 § 1 (d), the husband was also allowed to repudiate a child on the ground of adultery subject to the production of further evidence, including genetic tests, ruling out his paternity of the child. However, under Article 73 of the Civil Code, such an action should have been brought within six months from the date of the birth, and by 1993 that period had already expired. 19.     In the Civil Court’s view, such interference could not be justified in terms of paragraph 2 of Article 8 of the Convention. It emphasised that in the case of Kroon and Others v. the Netherlands the European Court had stated that respect for family life required that biological and social reality should prevail over a legal presumption. This finding dispensed the Civil Court from ascertaining whether the other rights relied on by the applicant had also been infringed. C.     The proceedings before the Constitutional Court 20.     The Attorney General appealed against the judgment of 30   May   1997 to the Constitutional Court. A third-party appeal was also lodged by Y. 21.     In a judgment of 15 January 2002 the Constitutional Court allowed the appeals by the Attorney General and Y and set aside the impugned judgment. 22.     It observed that even before the 1993 amendments the Civil Code had not precluded the taking of genetic and scientific tests to establish whether a person was the father of a child or not. In fact, Article   73 of the Code simply provided that adultery alone was an insufficient basis for bringing an action to repudiate paternity, the presence of another element being necessary, namely that the birth had been concealed from the person legally designated as the father. Only after this circumstance had been established could the “father” produce other evidence, including scientific material. The reason for this limitation of the husband’s right to proceed with an action for repudiation had been the stand in favour of the status of legitimacy, summed up by the presumption “ pater is est quem iustae nuptiae demonstrant ”. The ratio legis remained the same even after the 1993 amendments, which allowed the husband to repudiate the child on the basis of adultery and scientific tests even if the birth had not been concealed from him (Article 70 § 1 (d) of the Civil Code). In any case, scientific tests alone merely constituted evidence corroborating other elements, and they had never been sufficient and decisive to disavow paternity, the husband being obliged to prove the adultery or the concealment of the birth. 23.     The Constitutional Court noted that the applicant was in reality claiming a right to determine paternity uniquely on the basis of biological certainty resulting from scientific proof, independently of any other requirement imposed by the legislator and without any time-limit. It was true that scientific tests, whose results were apparently ascertainable and accessible, could be the most conclusive; however, in the Constitutional Court’s view, this was not a good reason to exclude certainty reached by means of other evidence. 24.     The Constitutional Court examined whether the domestic law had struck a fair balance between the husband’s right to know whether or not he was the child’s father and the interests of the child in enjoying certainty as to his or her legal status. It considered that according to today’s social trends, the aim of the interference complained of was the protection of children in the enjoyment of their family ties rather than the protection of the status of legitimacy. The issue raised by the applicant concerned a conflict between factual reality and legal certainty, a matter which was the subject of debate in many other countries. The Constitutional Court noted that the Kroon and Others judgment did not deny a margin of appreciation to the State authorities and that the European Court had not made a statement on the conformity of the provisions of Dutch law with the Convention, preferring to rule solely on the particular circumstances of the case before it. The contested judgment had simply followed the position taken in the Kroon and Others judgment, the facts of which, however, were completely different from those of the present case, in which both X and Y disagreed with the action taken by the applicant and the “social reality” enjoyed by Y corresponded to her birth certificate. 25.     The Constitutional Court moreover pointed out that in the case of Rasmussen v. Denmark (judgment of 28 November 1984, Series A no. 87) the Court had considered that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child, and had consequently found no violation of Article 8 of the Convention. That approach had subsequently been confirmed by the European Commission of Human Rights in the cases of B.H. v. Austria (application no.   19345/92, decision of 14 October 1992) and M.B. v. the United Kingdom , concerning the refusal to order a blood test (application no.   22920/93, decision of 6 April 1994), as well as by the Court in the case of Yildirim v. Austria ((dec.), no. 34308/96, 19   October 1999). 26.     In the light of the above, the Constitutional Court considered that the interest in having biological and social reality prevail over legal presumptions should be balanced against equally valid principles and values, such as the interests of the offspring, the identity of the family nucleus and the stability of society. This vindicated the right of the State to impose, within its margin of appreciation, certain limits on the use of an action to deny paternity, which the Constitutional Court could review only if they amounted to serious interference with the husband’s fundamental rights. 27.     The Constitutional Court finally observed that the ideal situation was one in which legal certainty corresponded to factual reality. It therefore suggested that the domestic provisions be constantly kept under the legislator’s scrutiny to be refined and updated as and when necessary, taking into account developments in science, changes in the family and social trends. D.     The statements by Y and by the applicant 28.     Attached to their observations on the merits, the Government produced a statement by Y, in which she declared that she had used the applicant’s name for thirty-seven years and would like to continue to do so for the rest of her life. Y also stated that the applicant used to visit her during the first year of her life; he had provided maintenance for her upbringing and had paid a sum for her wedding expenses. Y had been invited several times to parties at the applicant’s house and on one occasion she had been asked to go upstairs to greet the applicant’s father. On another occasion, Y had played tennis with the applicant at his private house in Bidnija. At some point between 1990 and 1996 the applicant had invited Y and her son to spend a day at his house by the pool. On that occasion, he had given her son a present. 29.     Y declared that she had undergone the blood test in March 1990 at the applicant’s request. At that time she had had no doubt that the applicant was her father. Her intentions were based on purely emotional factors and not on financial considerations. Y alleged that she did not believe the applicant’s statement that she was not his daughter and added that she had never been shown the results of the DNA test. She felt that the applicant was simply trying to find some justification for the fact that he had not always treated her like a daughter. The reasons behind the applicant’s legal actions were probably of a merely financial nature. The allegations made in court had caused Y further suffering. 30.     In response to Y’s arguments, the applicant produced a written statement in which he declared that, having suspected that his wife was having affairs during their marriage, he had not been happy when he had been informed that X was pregnant. The applicant had separated from X several months before Y’s birth and had been informed of the birth a few weeks after it had happened. The applicant had not wanted to sign the declaration of birth and had delayed the matter for months. He had eventually been incorrectly led to believe that as the presumed father, he was the only person who could declare the birth; moreover, pressure had been put on him by X and her father, who had promised that a blood test would be carried out. The applicant had asked whether the blood test could be included as a condition in the contract of separation, but he had abandoned that idea in order not to damage X’s reputation. Four months after the signature of the contract of separation, the applicant had been informed that X had changed her mind as to the blood test. He had therefore declared that he would not regard Y as his own daughter. 31.     The applicant had included access rights in the separation contract and had actually visited Y during the first year of her life because he had not been sure about the results of the blood test. However, he had stopped the visits when it became clear that the blood test would not be carried out and he had never used his right to take Y to his home. The applicant had not seen Y again until she was about twenty years old, when a friend of his had brought her to one of his parties without informing him beforehand. There had been around one hundred guests at the party. The applicant had not recognised Y on that occasion. She had come to parties organised by the applicant three or four more times, always as an uninvited guest. The applicant did not remember whether he had invited her to greet his father, but pointed out that it had been common for his guests to visit his father, who was living with him. 32.     The applicant submitted that he had shown the results of the blood tests to Y; however, he had kept the documents for himself. He would have given her a copy had she so requested. 33.     On one occasion, “as a matter of courtesy”, the applicant had invited Y for lunch. Y had asked whether she could bring her son and the applicant had replied that that was possible. On that occasion, the applicant and Y had discussed Y’s real father’s identity. 34.     The applicant had not seen Y again after this lunch. She had never been treated as a granddaughter by the applicant’s parents and the members of the applicant’s family had not had any direct contact with her. She had never attended family parties or family funerals and had not been given the applicant’s deceased mother’s jewellery (as would be customary in Malta if she were the applicant’s daughter). The applicant had never felt like a father to Y and could not see how she could have felt like a daughter to him. They had seen each other a few times in nearly thirty years and always in the company of third persons. Y had never called the applicant “dad”. 35.     The applicant submitted that he had included maintenance for Y in the contract of separation because he was in any case obliged to pay for it. The applicant had also felt obliged to contribute to Y’s marriage expenses, but had not been invited to the wedding. II.     RELEVANT DOMESTIC LAW A.     The action for disavowal brought by the husband 36.     Before the 1993 amendments, the relevant Articles of the Maltese Civil Code read as follows: Article 67 “A child conceived in wedlock is held to be the child of the mother’s husband.” Article 70 “The husband can repudiate a child conceived in wedlock (a)   if he proves that during the time from the three hundredth day to the one-hundred-and-eightieth day before the birth of the child, he was in the physical impossibility of cohabiting with his wife on account of his being away from her, or some other accident; or (b)   if he proves that during the said time he was legally separated from his wife ...” Article 72 § 1 “The husband may not repudiate a child on the ground of adultery, except where the birth shall have been concealed from him, in which case he shall be allowed to prove, even in the action for disavowal, both the adultery and the concealment, as well as all other circumstances tending to show that he is not the father of the child ...” Article 73 “Where it is competent to the husband to bring an action to disown a child, he must bring such action (a)   within three months from the day of the birth, if he was then in Malta; (b) within three months of his return to Malta, if he was absent at the time of the birth; (c) within three months of the discovery of the fraud, if the birth was concealed from him ...” 37.     From 1 December 1993 (see Act XXI of 1993) a number of amendments were made to the Civil Code. In particular, to the cases in which the husband may repudiate a child conceived in wedlock was added the following (Article 70 § 1 (d) of the Civil Code): “if he proves that during the ... time [from the three hundredth day to the one hundred and eightieth day before the birth of the child] the wife had committed adultery or that she had concealed the pregnancy and the birth of the child, and further produces evidence of any other fact (which may also be genetic and scientific tests and data) that tends to exclude such paternity.” 38.     Moreover, the periods set down in Article 73 of the Civil Code were raised to six months. B.     Impeachment of the legitimacy of a child by other persons 39.     By Article 77 of the Civil Code, the legitimacy of a child born in wedlock may be impeached by any interested person if he or she proves that, during the time from the three hundredth day to the one hundred and eightieth day before the birth of the child, it was physically impossible for the husband to have been cohabiting with his wife. This action is not subject to any time-limit. 40.     According to the case-law of the domestic courts, a child has the right to challenge his or her paternity without restrictions when the status attributed by the birth certificate conflicts with the factual reality (see the judgment of the Court of Appeal of 14 January 1952 in the case of Antonio Scerri Gauci v.   Dr   G.   Scicluna ). C.     The inheritance and maintenance rights of legitimate children 41.     By Articles 616 and 620 of the Civil Code, the applicant’s daughter is entitled, as a legitimate descendant, to inherit at least one-third of the applicant’s estate, which is due in full ownership and cannot be encumbered by any burden or condition. As a consequence of the amendments introduced in the Civil Code by Act XVIII of 2004, which entered into force on 1 March 2005, if the applicant dies without having made a will or if his will is declared invalid for any reason, Y, as his only child, will be entitled to his entire estate. 42.     Until the child’ reached the age of majority, the applicant was obliged to provide maintenance for his daughter. Should the latter in future become unable to maintain herself, alone or with the help of her husband and children, the applicant would once again become liable to the obligation of maintenance. THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTIONS 43.     In their observations of 29 March 2005 on the merits the Government submitted that the application was out of time, that the applicant’s complaints under Articles 6 and 14 of the Convention had not been properly brought before the domestic courts, that the applicant had failed to adduce evidence showing his interest in the case and that he could not claim to be a “victim”, within the meaning of Article 34 of the Convention, of the facts complained of. 44.     The Government alleged, in particular, that the applicant should have lodged his application within six months from 30   April 1987, the date of the entry into force of the European Convention Act. Moreover, the applicant had carried out acts which were incompatible with the wish to disavow Y. He had acknowledged that he was the father of the child born of his wife and had agreed to have access rights and to pay his former wife a monthly sum “for their common daughter”. 45.     The applicant challenged the Government’s arguments. He alleged that the situation complained of was a continuing one, that the application had been lodged within six months from the date of the delivery of the final domestic decision, that he had raised all his complaints in substance before the domestic courts and that by reason of a legal presumption the authorities had been obliged to enter his name on Y’s birth certificate. Furthermore, he considered it “surprising” that these objections had not been raised by the Government in their main submissions on the admissibility and merits of the case. 46.     The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted under Rule 51 or 54, as the case may be (see K.   and T. v.   Finland [GC], no.   25702/94, §   145, ECHR   2001-VII, and N.C. v.   Italy [GC], no.   24952/94, §   44, ECHR   2002-X). In the present case, in their written observations at the admissibility stage the Government objected that the applicant had lodged his constitutional application more than six months after the adoption of the 1993 amendments and that he had failed to bring an action to determine the paternity of Y. In its decision of 9   December 2004 on admissibility the Court held that the final decision, within the meaning of Article 35 § 1 of the Convention, was the Constitutional Court’s judgment of 15 January 2002. It therefore considered that the application could not be rejected as being out of time. It moreover held that the accessibility and effectiveness of an action to determine paternity was linked to the substance of the applicant’s complaint under Article 6 § 1 of the Convention. 47.     The Court notes that the pleas of inadmissibility put forward in the observations of 29 March 2005 on the merits were not made by the Government in their written statements before the adoption of the decision of 9 December 2004. These new submissions referred to events that had occurred before the application was lodged with the Court. There are no exceptional circumstances which would have absolved the Government from the obligation to raise all their preliminary objections before the Court’s decision as to the admissibility of the application (see Prokopovich v. Russia , no. 58255/00 , §   29, 18 November 2004). 48.     Consequently, the Government are estopped from raising the preliminary objections set out in their observations of 29 March 2005 at the present stage of the proceedings. The Government’s objections must therefore be dismissed.   II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49.     The applicant submitted that he had not been able to have his action for disavowal of paternity examined by a domestic tribunal. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides: “1.     In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...” A.     The parties’ submissions 1.     The Government 50.     The Government first submitted that Article 6 was not applicable to the facts of the present case. They alleged that this provision only covered disputes over rights which existed at domestic level. However, the applicant, who had not been separated from his wife and had known about the birth of Y, did not have any right to disavow his paternity of the child. The Government referred, on this point, to the cases of Nylund v. Finland ((dec.), no.   27110/95, ECHR 1999-VI) and Yildirim v. Austria ((dec.), no.   34308/96, 19 October 1999). 51.     The Government furthermore observed that the applicant had never filed any case in Malta to determine the paternity of Y. He could not therefore claim that he had been denied access to a court in respect of such an action. The applicant had merely lodged a constitutional application on 1   November 1996, more than three years after the enactment of the 1993 amendments and more than six months after the date on which Y had agreed to undergo the DNA test. 52.     The Government noted that the “concealment of birth” requirement was a measure that favoured legitimacy and the stability of the family and maintained a proper balance between various rights in cases such as the present one in which the husband chose to continue cohabitating and having relations with the wife despite his knowledge that the wife was having other relationships. In such circumstances, it was proportionate to provide that the husband should accept children whom he might not have fathered as his own. In the Government’s view, the effects of the concealment requirement were very similar to those of the “doctrine of acknowledgment” under Danish law, as examined by the Court in the case of Rasmussen v.   Denmark (cited above). 53.     Under Maltese law, adultery was a ground for separation, which could have been proved by any means. Had the applicant sought a separation from his wife, he could have done so at any time, even after the birth of Y. In the event of refusal to undergo blood tests to determine paternity, the domestic court would have taken this factor into account and considered it to be an indication of adultery. However, the applicant had chosen a completely different course of action: he had acknowledged the child and signed a contract of consensual separation with X, in which adultery was not mentioned. 54.     Moreover, the concealment requirement was not relevant in the applicant’s case: even if such a requirement was not provided for by law, an action for disavowal would have had little prospect of success, as the applicant did not have any proof of his wife’s adultery or – before the DNA test – of the fact that Y had not been fathered by him. Consequently, the applicant was affected only by the fact that the law fixed a time-limit for bringing an action to deny paternity and required proof of adultery before admitting scientific evidence. 55.     The Government emphasised that in the domestic proceedings the applicant had failed to produce the DNA test or any evidence of X’s adultery. In the absence of any proof of the factual basis of his allegations, he could not be considered a victim of the facts complained of. 56.     In any case, there were good reasons for establishing a legal presumption that a child born or conceived in wedlock was the offspring of the husband, for requiring certain preconditions before admitting evidence in rebuttal and for subjecting an action for disavowal to time-limits. 57.     In relation to the latter point, the Government observed that in the case of Rasmussen v.   Denmark (cited above) the Court had accepted such time-limits, which were provided for by practically all European countries’ legislation on the matter, in order to protect the children’s right to legal certainty as to their status. 58.     Furthermore, it should be taken into account that when Y was born, DNA testing had not been available. The only available test at the time had been the ABO blood grouping test, which could in some cases definitely rule out paternity, but left the matter open in most cases. It would be unreasonable to reopen settled issues of paternity every time a new scientific test was developed. 59.     In the Government’s opinion, the three-month limitation period – which had recently been extended to six months – was not unreasonably short. In fact, the law took into account the fact that both infidelity and reconciliation after adultery were not uncommon. It was therefore wise to rule out the possibility of an action for disavowal being brought at any time when the spouses might have had a fight. In order to avoid “conditional reconciliations”, Maltese law had chosen to give to the husband a limited time to decide whether to forgive his wife and forget his doubts as to the paternity of his children. 60.     Finally, as jealousy was a recurring theme in life, the Maltese legislator had protected wives and their children from the antics of jealous husbands or fathers. In particular, before 1993 the husband had been required to prove both the adultery and the concealment of birth before adducing other evidence (including scientific tests) showing that a child born in wedlock was not his. After 1993, he had been required to prove either adultery or concealment in order to be allowed to produce other evidence. The more rigid requirements before 1993 had been attributable to the fact that scientific tests at that time had been less reliable. 61.     In view of the foregoing, the Government concluded that the preconditions for bringing an action for disavowal were necessary and acceptable limitations on the right of access to a tribunal. They referred to the case of Mikulić v. Croatia (no. 53176/99, ECHR 2002-I), in which the Court had concluded that leaving a child born on 25   November 1996 in a state of prolonged uncertainty as to her personal identity constituted a failure to secure her right to respect for her private life. 2.     The applicant 62.     In the applicant’s submission, the concealment requirement and the limitation period under the relevant provisions of the Civil Code constituted an unjustified and disproportionate interference with his right of access to a court. 63.     He observed that he had brought proceedings before the Civil Court, seeking a declaration that those legal limitations were contrary to Articles 6, 8 and 14 of the Convention. He had also sought a declaration that he had a right to proceed with an action for disavowal of paternity notwithstanding the limits laid down in the Civil Code. 64.     As to the Government’s argument that he could not claim to be the victim of the alleged violations as no evidence of the wife’s adultery or of the DNA test had been adduced, the applicant noted that his complaint in Strasbourg concerned the preconditions for bringing an action for denial of paternity in the domestic legal system. He therefore submitted that for the purposes of the present application there was no need for the Court to consider evidence of paternity or adultery. 65.     The applicant observed that the Government had acknowledged, in substance, that the six-month limitation period for bringing an action for disavowal and the concealment requirement were prima facie interferences with his right to access to court. However, the Government had failed to provide adequate justification satisfying the test of proportionality under Article 6 of the Convention. 66.     In the first place, the Government had not explained why an absolute six-month requirement, allowing for no exceptions, was needed. After the 1993 amendments, it was that time-limit which had prevented the applicant, who was able to comply with the substantive requirements of an action for disavowal, from bringing his case before a court. 67.     The applicant submitted that in the case of Mikulić v. Croatia , cited by the Government, the Court had emphasised the importance, for a child, of the elimination of uncertainty as to the identity of her natural father. It was, however, similarly important for the applicant that the erroneous legal presumption that he was Y’s father should be eliminated. 68.     The delay in challenging paternity had not been due to the applicant’s lack of action, but to the operation of the concealment requirement, which until 1993,would have been an obstacle to any action for disavowal. When the law had been amended and the requirement in question was removed, the inflexible six-month time-limit had prevented the applicant from instituting court proceedings. Against this background, the fact that he had waited until 1 November 1996 to lodge his constitutional application was irrelevant. 69.     The applicant considered that the reasons advanced by the Government in order to justify the concealment requirement were not convincing. It had not been explained, in particular, why before 1993 it had been necessary to prove not only the wife’s adultery but also the concealment of the birth. This requirement had prevented a husband who had evidence of his wife’s adultery from instituting proceedings to deny paternity where there was still common marital life or where the wife had decided to reveal the birth. This rendered an action for disavowal practically impossible in many cases and overlooked the role played in children’s life by the biological father. Nor had the Government explained why proof of adultery, where properly established, was not sufficient to protect wives and children from groundless allegations. Furthermore, there was no valid reason why the Maltese courts did not have the power to compel the parties to undergo blood tests to establish paternity. It was also to be noted that the power to invite the parties to undergo such tests and to draw inferences from any refusal had been introduced only with the 1993 amendments. It was therefore a course of action which had never been open to the applicant. 70.     The applicant also submitted that his case was distinguishable from those of Nylund v. Finland and Yildirim v. Austria , cited by the Government in support of their claim that Article 6 was not applicable. Unlike Mr   Nylund, the applicant would have had, under domestic law, a right to disavow his paternity of the child had the concealment requirement and the six-month time-limit not existed. As to Mr Yildirim, the latter had had the possibility, not impaired by any concealment requirement, of bringing an action to deny paternity within one year from the birth of his child, but had omitted to do so.     B.     The Court’s assessment 1.   Applicability of Article 6 § 1 of the Convention 71.     The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy (no. 1) , no. 40877/98, § 48, ECHR 2003-I). This right extends only to disputes (“ contestations ”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, p. 16, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria , judgment of 24 November 1997, Reports   1997-VII, p. 2507, §   34). 72.     In the present case, the applicant wished to bring an action for disavowal with regard to Y, his wife’s daughter. Under the relevant domestic provisions, a husband could repudiate a child conceived in wedlock under certain circumstances, which were listed in Articles 70 and 72 of the Maltese Civil Code. According to the latter provision, an action for disavowal was admissible if the husband could prove both the adultery of his wife and the concealment of the birth, as well as any other circumstances tending to show that he was not the father of the child (see paragraph 36 above). 73.     It is not contested that the birth of Y was not concealed from the applicant.   However, the relevant Maltese law was amended in 1993. Under the new rules (Article 70 § 1 (d) of the Civil Code), evidence of adultery and of any other fact tending to rule out paternity was sufficient to bring an action for disavowal (see paragraph 37 above). 74.     In the light of the above, the Court considers not only that the domestic legal system allowed a husband to deny paternity of the offspring of his wife, but also that after the 1993 amendments a person in the applicant’s situation was, in principle, capable of bringing such an action with reasonable prospects of success. In the Court’s view, the fact that a time-limit precluded the applicant from benefiting from the 1993 amendments did not impair the actual existence of the right in the domestic legal system. Such a time-limit was only a procedural precondition for having access to the domestic courts. 75.     The present case is therefore distinguishable from those of Nylund (cited above), in which the Court found that the domestic law did not provide for any “right to have mere biological paternity examined by scientific methods”, and Yildirim (cited above), in which the domestic law did not confer on a husband a right to have an action contesting legitimacy brought by the public prosecutor. 76.     In the Court’s view, having regard to the scientific evidence obtained in Switzerland (see paragraph 13 above), it cannot be said that the applicant’s allegations that he was not the biological father of Y were manifestly devoid of substance. Under these circumstances, the Court considers that the right claimed by the applicant to deny paternity was at least arguable and that the dispute that he wished to bring before the domestic courts, which was directly decisive for this right, was genuine and serious. Finally, the Court reiterates that an action contesting paternity is a matter of family law; on that account alone, it is “civil” in character (see Rasmussen , cited above, pp. 12-13, §   32). 77.     It follows that Article 6 of the Convention applies to the facts of the present case. It remains to be ascertained whether there was an interference with the applicant’s right to bring an action for disavowal