CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 avril 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s12C7C643 { margin-top:14pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } Communicated on 14 April 2020 Published on 8 June 2020   FIRST SECTION Application no. 31415/15 Maximiliana ABRAHAMYAN against Armenia lodged on 11 June 2015 STATEMENT OF FACTS The applicant, Ms Maximiliana Abrahamyan, is a German national who was born in 2001 and lives in Essen. She is represented before the Court by Ms S. Abrahamyan, her mother, residing in Bottrop. The latter introduced the present application on behalf of the applicant who was a minor at the relevant time. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. From 1997 until 2001 the applicant’s mother was allegedly in a relationship with a certain K., a famous Armenian musician and philologist. During that period they allegedly lived together in Armenia. In April 2001 the applicant’s mother, who was pregnant with the applicant, moved to Germany as a permanent resident. On 26 July 2001 the applicant was born. According to the applicant, although K. did not recognise her officially, he had always accepted her as his daughter. He had visited her and her mother once in Germany and they had visited him in Armenia. Despite the geographical distance, they had always stayed in contact. On 19 January 2007 K. died without leaving a will. The applicant and her mother attended his funeral in Armenia. In 2008 K.’s brother and nephews, including H., were recognised as his heirs. On 12 October 2009 H. instituted inheritance proceedings with the Kentron and Nork-Marash District Court of Yerevan (“the District Court”). On 6 May 2010 the applicant, legally represented by her mother, lodged a civil claim with Aragatsotn Regional Court against K.’s heirs and a State notary seeking to establish K.’s paternity and hence herself as his sole heir. She also sought to have the statutory six-month time-limit for accepting inheritance reinstated. In view of the similar subject matter of the proceedings, by a decision of 22 March 2011 the Aragatsotn Regional Court decided to send the case to the District Court for a further joint examination with H.’s claim. In the course of the proceedings before the District Court the applicant argued that K. was her biological father. In support of her claims, she submitted the results of a genetic test conducted on 13 January 2010 by a forensic medical expert based in Ebersberg, Germany. According to those results, the comparative DNA test performed on the basis of a blood sample from K.’s brother A. had shown a 99.99% probability that A. was the applicant’s biological uncle. By a judgment of 16 May 2012 the District Court dismissed the applicant’s claims as unsubstantiated. The District Court did not admit the results of the DNA test as evidence, finding that they did not comply with the requirements of Articles 60-62 of the Code of Civil Procedure. In particular, the District Court found that the results of the genetic test were unclear; that the expert’s report lacked reasoning and did not contain any information about the experts who had conducted the test. The District Court also stated that the applicant had failed to take any action to establish her paternal filiation either during K.’s lifetime or during the three years after his death. The applicant had therefore failed to adduce any valid reason to support her request to reinstate the statutory six-month time-limit to accept K.’s inheritance. The applicant lodged an appeal arguing, inter alia , that the District Court had not properly assessed the evidence submitted before it. The applicant further argued that the District Court had failed to exercise its statutory discretion to order an additional forensic genetic test, if it considered that the German expert’s opinion did not comply with the applicable procedural requirements. Lastly, the applicant adduced other evidence to prove her paternal filiation with K., including her mother’s written statement confirmed on oath ( affidavit ) attesting that K. was the applicant’s biological father, a number of photographs showing herself and her mother in K.’s company, numerous letters sent to her by K. and his family members and several witness statements and newspaper articles supporting that K. was her father. On 22 November 2012 the Civil Court of Appeal quashed the District Court’s judgment and remitted the case for a fresh examination. The Court stated, in particular, that during this examination of the case the District Court should ensure complete and objective examination of all the evidence adduced by the applicant. By a judgment of 14 March 2014 the District Court once again rejected the applicant’s claims as unsubstantiated, pointing to the fact that the applicant had initiated inheritance proceedings only in 2010, while she had attended K.’s funeral in Armenia in 2007. In addition, the applicant had not taken any action to have K.’s paternity recognised during his lifetime or during the three years after his death. The District Court further pointed out that the applicant had failed to adduce any evidence proving that K. had made any regular payments for her care and upbringing. As regards the expert opinion of 13 January 2010, the District Court considered it inadmissible as evidence since the circumstances in which the genetic test in question had been conducted were not clear; the report did not contain an introductory and a descriptive part and there was no evidence that the expert had been warned about criminal liability for providing a false opinion. Lastly, as to the other pieces of evidence submitted by the applicant, the District Court considered that they were irrelevant and insufficient to grant the applicant’s application while she had failed to substantiate her request seeking the reinstatement of the statutory six-month time-limit to accept K.’s inheritance. The applicant lodged an appeal claiming, inter alia , that no grounds or proper justification had been provided by the District Court for the rejection of evidence produced before it. As regards the fact that she had initiated inheritance proceedings only in 2010, that is only three years after K.’s death, the applicant submitted that the Family Code set out no statutory time-limits for applications for the establishment of filiation. On 15 October 2014 the Civil Court of Appeal rejected the applicant’s appeal and upheld the District Court’s judgment of 14 March 2014 in full. The applicant lodged an appeal on points of law, raising arguments similar to those submitted in her previous appeal. On 17 December 2014 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. Relevant domestic law The Code of Civil Procedure (as in force at the material time) According to Article 60 § 1, in order to clarify issues requiring specialist knowledge which arise during the examination of a case, the court can order a forensic examination upon application by a party (parties) or of its own motion. According to Article 61, the participants in the proceedings are entitled to be present at the forensic examination, save in cases where their presence could hinder the regular work of the expert. According to Article 62 § 1, the expert’s conclusion is compiled in written form. It must contain: 1) a note about the methods applied; 2) a detailed description of the examination performed; 3) the conclusions reached as a result of the examination; and 4) reasoned answers to the questions asked. According to Article 62 § 3, the expert’s conclusion is examined in court and assessed together with other evidence. According to Article 62 § 4, if the expert’s conclusion is not sufficiently clear or complete, the court may order an additional forensic examination by assigning it to the same or another expert (forensic institution). According to Article 62 § 5, if the court or the parties to the proceedings have doubts as to the reliability or validity of the expert’s conclusions, or if there are contradictions between the conclusions of several experts, the court may order another forensic examination, the execution of which is commissioned to another expert (experts, forensic institution). The Family Code (in force since 2005) According to Article 36, if a child is born out of wedlock and there is no joint application by the parents or by the child’s father, the issue of paternity may be established in court, on the basis of an application by one of the child’s parents or his guardian, or the child himself when he becomes an adult. In determining the issue of the child’s paternity, the court takes into account any evidence that accurately proves it. According to Article 37, in the case of the death of a person who was not married to the child’s mother but who acknowledged that he was the father of the child, the latter’s paternity may be determined by judicial procedure in accordance with the provisions of the Code of Civil Procedure. COMPLAINT The applicant complains under Article 8 of the Convention that the domestic courts failed to secure the recognition of her paternal filiation with K., thereby leaving her in a state of uncertainty as to her personal identity. QUESTION TO THE PARTIES Was the applicant’s right to respect for her private life, guaranteed by Article 8 of the Convention, breached? In particular, did the authorities observe their positive obligation under Article 8 of the Convention to secure judicial recognition of the applicant’s paternal filiation after her alleged father’s death (see Kroon and Others v. the Netherlands, no. 18535/91, §§   30-32, 27 October 1994; Jäggi v. Switzerland, no. 58757/00, § 33, 13   July 2006; and Pascaud v. France, no. 19535/08, §§ 55-56, 16   June 2011)?