January 16, 2012
The recent judgment of Iyilik v. Turkey concerns competing interests of an applicant and his (legal) daughter in a paternity case. The wife of the applicant, Mr. Iyilik, had given birth to a daughter in 1966. Mr. Iyilik denied being the biological father and a year later the couple divorced. Mr. Iyilik then brought proceedings to contest his paternity. Blood tests, the only available tests at the time, were taken. The results showed that Mr. Iyilik could be the father, just as any other man with the same blood type could be. The domestic courts consequently denied his request for contestation of paternity. In 2002, Mr. Iyilik submitted a new complaint, requesting reopening of the file and re-examination of his paternity in light of new scientific developments, i.e. the possibility of undergoing a DNA test. In pursuing his new claim, Mr. Iyilik relied on a specific article of the Turkish Civil Procedural Code which allowed for reopening of any civil proceedings if the impossibility to present certain pieces of evidence during the initial proceedings had constituted force majeure. The courts, however, rejected Mr. Iyilik’s request, relying on established jurisprudence of the Turkish Court of Cassation to the effect that the state of scientific progress could not reveal any force majeure.
Mr. Iyilik claimed a violation of his right to respect for his private life in front of the European Court of Human Rights. The Court first acknowledged that it had established in several cases that a situation in which it was impossible to let the biological reality prevail over a legal presumption of paternity was not compatible with the positive obligations of the State under article 8, even having regard to the margin of appreciation that the Member States enjoy in this field. The Court, however, distinguished Iyilik from those earlier cases, because Mr. Iyilik did not have any proof that he was not the biological father, but was merely pursuing routes to obtain such (potential) proof. Seeing as his daughter had refused to undergo a DNA test, the Court held that the interests involved in this case – the interest of the father in obtaining potential proof of his lack of biological affiliation to his daughter and the interests of the child – were contradictory, while they had converged in the earlier cases. The Court consequently saw nothing arbitrary or disproportionate in the decision of the domestic courts to accord more weight to the interest of the child than to the potential interest of the applicant in verifying a biological fact. The Court concluded that the absence of any manifestation by the child that she wished to have her paternity determined, combined with the lapse of time during which she had benefited from her civil state as daughter of the applicant, played in favour of the interest of the daughter to “ne pas être privée d’une paternité biologique distincte de la filiation” (translation: to not be deprived of a biological paternity distinct from filiation; presumably, what the Court means is that the applicant’s daughter has an interest in not being deprived of the legal paternity of the applicant). Article 8 had therefore not been violated.
Two Judges dissented in Iyilik, emphasising that the prevalence of the biological reality over legal presumptions of fatherhood is an established principle in the Court’s case law and that this principle is not subject to consent of any other persons concerned, even where they would have to undergo a DNA test. The dissenters went on to find that the domestic courts had reasoned in an overly formalistic manner, letting legal certainty prevail in an absolute fashion, while remaining indifferent to the concrete circumstance of the case before them. The domestic courts had thus, in effect, failed to balance the interests of the applicant against those of his daughter.
Iyilik v. Turkey closely resembles, but ultimately differs from, an earlier judgment of the ECtHR: Paulik v. Slovakia (App. No. 10699/05, 10 October 2006). In Paulik, the applicant had also denied his paternity, which had then been established on the basis of a blood test and in line with a legal presumption (he had had sex with the mother between 180 and 300 days prior to the birth). Unlike the applicant in Iyilik, however, Mr. Paulik accepted the domestic courts’ decision. He later also developed emotional ties with his daughter and provided her and her family (after she married) with financial support. It was only after having had a financial quarrel with her that Mr. Paulik requested that his paternity be retested. His daughter voluntarily agreed to submit herself to a DNA test, which revealed that Mr. Paulik was in fact not the biological father. Mr. Paulik then requested the public prosecution service and other institutions to allow him to challenge his paternity, but they refused to grant his request, despite the fact that his daughter had no objections to his denial of paternity, because no procedure existed under Slovakian law for bringing the legal position in line with the newly discovered biological reality. In Paulik, the ECtHR accepted that ensuring legal certainty and the security of family relationships and protecting the interests of children were legitimate interests, pursued by the Slovakian authorities. However, the Court went on to find, “[a]s to the general interest, it is to be noted that the applicant’s putative daughter is currently almost 40 years old, has her own family and is not dependent on the applicant for maintenance. The general interest in protecting her rights at this stage has lost much of its importance compared to when she was a child. Furthermore, she initiated the DNA test and said that she had no objection to the applicant’s disclaiming paternity. It therefore appears that the lack of a procedure for bringing the legal position into line with the biological reality flies in the face of the wishes of those concerned and does not in fact benefit anyone.” Article 8 had therefore been violated.
The main differences between Paulik and Iyilik that played to Mr. Iyilik’s disadvantage are of course that, unlike Mr. Paulik’s daughter, his daughter objected to his challenge of paternity, and unlike Mr. Paulik, he did not possess any evidence that he was not the biological father of his daughter. While it may be so that Mr. Iyilik’s domestic request differed from that of Mr. Paulik, the obstacle they faced was ultimately the same: the absence of any domestic procedure allowing for the re-evaluation of their paternity in light of new scientific methods. The mere fact that Mr. Paulik was able to obtain proof, while Mr. Iyilik was pursuing the possibility to obtain said proof does not matter in that context. Even if Mr. Iyilik would have had such proof, he would not have been able to challenge his paternity. The question therefore becomes, do the different interests of both applicants’ daughters justify the opposite outcomes in Paulik and Iyilik? Let us review the elements.
Mr. Paulik’s daughter had voluntarily undergone a DNA test, while Mr. Iyilik’s daughter had refused to undergo such a test. Mr. Iyilik’s daughter had also objected to his request for re-examination of his paternity, while Mr. Paulik’s daughter had not. Mr. Iyilik’s daughter therefore had interests that Mr. Paulik’s daughter had not had. It is precisely because the Iyilik case revealed contrary interests – those of the applicant were not in line with those of his daughter, but competed – that the Court was able to distinguish it from Paulik and rule in a different manner. However, several arguments could be raised to question the consequences the majority attached to the correct decision to differentiate both cases. Firstly, while it is true that Mr. Iyilik’s daughter had a contrary interest to his, the Court did not identify clearly what that interest existed of, referring instead to the vague interest in “ne pas être privée d’une paternité biologique distincte de la filiation”. Upon closer examination, the Court might have found that, in the absence of any emotional ties between the applicant and his daughter and seeing as the latter had become an adult, her interests were arguably not linked to any concern for her right to respect for her private and family life, instead being primarily financial and formal: her ability to inherit from Mr. Iyilik and the knowledge that he was legally speaking her father. Furthermore, regarding the daughter’s interest in not being forced to undergo a DNA test, the majority at no point explained why submitting her to such a test would alter the balance between the applicant’s interests and those of his daughter to such an extent as to allow the legal presumption of fatherhood to act as an absolute trump over the possibility to determine the biological reality. There finally also remain apparent incompatibilities between Iyilik and Paulik. The lapse of time was for instance used as an argument in opposite senses in both cases. In Paulik, the lapse of time and the fact that the daughter had become an adult played in favour of the applicant, while somehow it played in favour of the interests of the daughter in Iyilik. As the dissenters pointed out in that context, the fact that Mr. Iyilik did not have any emotional ties with his daughter should have strengthened his interest in having his paternity examined. As it stands, the majority’s judgment, however, prefers to let a legal fiction – the presumption of paternity – prevail over whatever the biological reality may be, de facto determining that the interest of the applicant’s daughter to continue believing in the legal presumption weighs heavier than the applicant’s interest in having the biological reality established.
In conclusion, it appears to me that the majority in Iyilik went to quickly over certain considerations, perhaps distracted by the need to protect the “interest of the child”, while disregarding the fact that that child had long ago become an adult whose specific interests (and their weight in the balancing exercise with the applicant’s interests) were not made clear in the judgment. This does not imply that the judgment should have gone the other way, but it does mean that more attention could and should have been paid by the majority to the balancing exercise.