FIRST SECTION
CASE OF KATSIKEROS v. GREECE
(Application no. 2303/19)
 
 
JUDGMENT
 
Art 8 • Private life • Relevant and sufficient reasons for imposing restrictive contact schedule between applicant and his daughter, not overstepping respondent State’s margin of appreciation • Applicant’s intended relationship with biological child not attracting protection under “family life”, where lack of established family relationship attributable to applicant
Art 6 (civil) • Access to court • Court of Cassation’s rejection of applicant’s additional grounds of appeal on points of law as being lodged out of time neither disproportionately hindering very essence of right nor transgressing national margin of appreciation

 
STRASBOURG
21 July 2022
 
FINAL
 
14/11/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Katsikeros v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Péter Paczolay,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Lorraine Schembri Orland,
 Ioannis Ktistakis,
 Davor Derenčinović, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 2303/19) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Panagiotis Katsikeros (“the applicant”), on 4 January 2019;
the decision to give notice to the Greek Government (“the Government”) of the complaint concerning the contact schedule set by the domestic courts between the applicant and his daughter, the complaint concerning the rejection of the applicant’s additional grounds of appeal on points of law, and his complaint concerning his right to have his case heard by an impartial tribunal, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 21 June 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant complained under Article 8 of the Convention that the domestic courts had set a very restrictive contact schedule with his daughter, not allowing him to establish a relationship with her. He also complained under Article 6 of the Convention that the additional grounds of appeal on points of law that he had lodged with the Court of Cassation were rejected on formalistic grounds, and that his appeal on points of law was not examined by an impartial tribunal. THE FACTS
2. The applicant was born in 1970 and lives in Nea Ionia. He was represented by Mr V. Chirdaris, a lawyer practising in Athens. 3. The Government were represented by their Agent’s delegates, Mrs A. Dimitrakopoulou and Mrs A. Magrippi, Senior Advisor and Legal Representative A at the State Legal Council. 4. The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND OF THE CASE
5. The applicant met K.P. at the end of 2013 and soon started a relationship with her. They started living together in January 2014. The applicant ended their relationship in June 2014, approximately a month before their scheduled wedding in July 2014 and while K.P. was pregnant with their child. 6. On 1 December 2014 K.P. gave birth to M., their daughter. In the months following the birth of their child, communication between the applicant and K.P. was non-existent and every attempt in that respect failed. On 26 January 2015 the applicant voluntarily recognised the child as his own through a declaration before a notary, although without the consent of K.P. Proceedings for parental responsibility and contact with M. 7. On 18 March 2015 the applicant lodged an application for interim measures, requesting that the situation be temporarily resolved until a final judgment was delivered, and specifically that he should exercise parental responsibility of M. jointly with K.P., or alternatively, that he should be given contact rights. By judgment no. 6821/2015 of 5 August 2015, his application was accepted as to its second part, and he was allowed to see M. every Saturday for three hours at K.P.’s house, in her presence and in the presence of one of her relatives until such time as a final judgment was delivered. 8. In the meantime, on 30 March 2015, 8 May 2015 and 25 May 2015, the applicant lodged applications for a provisional order (αιτήσεις για προσωρινή διαταγή) with the President of the Court of First Instance to have a temporary contact schedule set. However, as his paternity had not been established either judicially or before a notary, because of the mother’s lack of consent, his applications were rejected. 9. The applicant additionally lodged an application with the One‑Member Court of First Instance requesting that a final judgment be delivered and repeating the same requests as previously. 10. By decision no. 2884/2016 of 13 June 2016, the One-Member Court of First Instance held that the applicant’s relationship with K.P. was tense because of the applicant’s selfish and aggressive behaviour. According to the evidence produced during the hearing, the applicant easily lost his temper during his disputes with K.P., throwing and smashing various objects, and once even hit K.P. The court further recognised that the applicant was the father of M., who was ten months old at the time of the hearing, but rejected his request for shared parental responsibility, because of the tense relationship he had with K.P. It set the applicant’s contact schedule with his daughter as follows: for the first year following the judgment, the applicant could see his daughter on the first and third Saturday of each month and the second and fourth Sunday of each month, from 12 noon to 5 p.m. The meetings would take place at K.P.’s residence, in her presence with the additional presence of one of her relatives, given the tension and worry that the applicant’s presence caused to the defendant. For the second year following the judgment, the contact schedule would be extended from 12 noon to 7 p.m., and the applicant would pick M. up and drop her off at her mother’s house. When setting the schedule, the domestic court took into account the complete lack of closeness between the applicant and his daughter, as he had only met M. once; the young age of the child, who had been used to the exclusive care of her mother; the lack of a specially adapted place for the child in the applicant’s residence; and the help that the applicant was going to need in taking care of M., at least at the beginning. The court further stated that M. should not yet spend the night at the applicant’s residence until at least some minimum communication was established between them. 11. Following appeals lodged by both the applicant and K.P., the Athens Court of Appeal delivered judgment no. 2798/2017 of 8 June 2017. By that judgment, the appellate court rejected the applicant’s appeal in so far as it concerned parental responsibility, as that decision was susceptible only to an appeal on points of law. It accepted that the relationship between K.P. and the applicant had been tense mostly because of the selfish behaviour of the applicant, who lost his temper easily and acted in a condescending way towards K.P., throwing objects and even, in one incident, acting violently towards her. The court took note of the fact that the applicant had chosen not to make use of the contact schedule set by the first-instance court and had only seen M. once, on 7 March 2015, when she was about three months old. He had sent two extrajudicial messages to K.P. criticising the first-instance decision, and had not made any child maintenance payments. The same lack of interest had been demonstrated by the applicant’s relatives. Nevertheless, the child’s best interests dictated that she should have contact with her father so that a bond could gradually form between them. Having regard to the fact that the applicant had by choice only met his daughter once and that, owing to her young age, M. had been used to the exclusive care of her mother, the Court of Appeal ruled that, at least for the first period, the applicant’s contact with his daughter should be regular but limited. In particular, M. should not spend the night at the applicant’s house until the latter’s interest became clear and unquestionable and until their natural bond was gradually strengthened, otherwise it would have damaging effects on M.’s emotional and mental development, given that the applicant was completely unknown to her. In addition, the meetings during the same period should take place in the presence of K.P. and one of her relatives. In her turn, K.P. should try to facilitate the applicant’s contact with their daughter being meaningful. Both parents should avoid putting M. in the middle of their dispute and should encourage a relationship of love and respect towards the other parent. 12. In view of the above, the Court of Appeal considered that, for the time being, the most appropriate contact schedule for the applicant to have with M. would be as follows: for the first six months following the judgment, the applicant would meet M. on the first and third Saturday of every month from 12 noon to 3 p.m., and on the second and fourth Sunday from 12 noon to 5 p.m. at K.P.’s residence, in her presence and that of one of her relatives. For the second six months following the judgment, the schedule would remain the same, but the contact on Saturdays would also be until 5 p.m. The meetings would take place alternately at K.P.’s residence or in an internal or external playground. For the second year following the judgment, the applicant’s contact with M. should take place on the first and third Saturday of each month and on the second and fourth Sunday of each month from 12 noon to 7 p.m. The applicant would pick the child up from K.P.’s residence, where he would return her after the end of the scheduled contact. 13. Following the above judgment, the applicant lodged an appeal on points of law requesting that judgment no. 2884/2016 of the Athens One-Member Court of First Instance be quashed, in so far as it concerned the rejection of his request to jointly exercise parental responsibility over M., and that judgment no. 2798/2017 of the Athens Court of Appeal be quashed in so far as it concerned the contact schedule for him and M. He argued, inter alia, that the appellate court had erroneously interpreted the best interests of the child when setting the contact schedule, as it was excessively restrictive and had given undue priority to the mother over him. On 23 March 2018 he lodged additional grounds of appeal on points of law in a separate document. 14. On 13 July 2018 Section A2 of the Court of Cassation delivered judgment no. 1286/2018, by which it rejected the applicant’s appeal on points of law. It also rejected the additional grounds put forward in the separate document as having been lodged out of time. It specifically held that under Article 569 § 2 and Article 577 §§ 1 and 2 of the Code of Civil Procedure, the lodging of additional grounds of appeal on points of law, and their service on the other party, should take place at least thirty full days before the initially scheduled hearing. Referring to its previous case-law, it reiterated that that time-limit referred to both action time-limits and to preparatory time-limits such as the one in the present case, and that if the thirtieth day was a holiday, the additional grounds would not be submitted in time. In the applicant’s case, the thirtieth day following the lodging of his additional grounds of appeal on points of law and their service on K.P. was a Sunday, and thus the time-limit was extended to Monday which, however, coincided with the scheduled hearing date. The additional grounds were therefore rejected as having been lodged out of time. 15. As regards the applicant’s arguments, the Court of Cassation considered that the One-Member Court of First Instance had included sufficient reasoning and had adequately taken into account the evidence before it when it had decided to award parental responsibility solely to the mother. It further considered that the Court of Appeal had taken various elements into consideration when setting the restrictions on the applicant’s contact with his daughter, including but not limited to, the biosocial superiority that a mother has when taking care of such a young child. The judgment was finalised on 13 September 2018. SUBSEQUENT DEVELOPMENTS
16. In his observations to the Court, the applicant informed of the following developments. K.P. had lodged an application for interim measures with the Athens One-Member Court of First Instance, which had delivered judgment no. 5114/2018 of 25 July 2018. By that judgment, the presence of a relative of K.P.’s choice during the applicant’s contact with M. had been lifted. In addition, the contact between the applicant and M. would take place alternately at the mother’s residence, at a playground and at the office of a child psychologist jointly chosen by both parents. 17. Following a new application for interim measures by the applicant, the Athens One-Member Court of First Instance had delivered judgment no. 9127/2018 of 31 December 2018. By that judgment, it was held that for three months the applicant should meet K.P. and their daughter, M., at the office of a child psychologist and at K.P.’s residence with the applicant’s father or mother; for the next three months, the applicant would meet M. once a week alone and after that, M. would spend one night a week at the applicant’s house. 18. Lastly, by decision no. 8853/2020 of the Athens One-Member Court of First Instance of 29 May 2020, M. could spend the first and third weekend of every month at the applicant’s house without the presence of any other person being required, as well as one week in the Easter and Christmas holidays, and fifteen days during the summer. According to the applicant, K.P. had never complied with that decision. DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT
19. On 2 and 23 March 2017, the lawyer representing K.P. in the domestic proceedings submitted a report and request to the President of the Inspection Council of the Court of Cassation. By that report, the lawyer informed the President that the applicant had possibly committed disciplinary offences in the proceedings relating to M. 20. Following an investigation conducted by a member of the Court of Cassation, on 23 October 2017 a disciplinary action was lodged against the applicant under Article 91 of the Code on the Organisation of the Courts and the Status of Judges, for undignified or inappropriate behaviour. On the grounds of the pending disciplinary action and another pending disciplinary action for undue delay in drafting certain penal decisions, the applicant was excluded from promotion to appellate judge by decision no. 149/2017 of the Supreme Judicial Council, which consists of eleven judges of the Court of Cassation. He had already been excluded twice for the same reasons, by decisions nos. 25/2017 and 56/2017 of the Supreme Judicial Council. The applicant lodged an appeal against decision no. 149/2017 with the plenary of the Court of Cassation, which by decision no. 1/2018 of 18 January 2018, finalised on 2 February 2018, rejected the applicant’s appeal, even though it noted that the applicant had completed the penal decisions for which there had been a delay. The applicant was later promoted to appellate judge by decision no. 5/2018 of the Supreme Judicial Council. RELEVANT LEGAL FRAMEWORK
Civil Code
21. The relevant provisions of the Civil Code, as in force at the material time, read as follows:
Article 1510
Parental responsibility
“Responsibility for a minor child is the parents’ duty and right (parental authority), and shall be exercised jointly. Parental authority shall include custody of the child (επιμέλεια), the administration of the child’s property, and the representation of the child in any legal matter, action or trial concerning him or her or his or her property. In the event that parental responsibility ceases by reason of death, declaration of absence or forfeiture of parental responsibility by one of the parents, parental responsibility shall belong exclusively to the other parent. If one of the parents is unable to exercise parental responsibility for factual reasons, or because he or she lacks or has limited legal capacity, then it shall be exercised solely by the other parent. Custody of the child shall however also be exercised by a parent who is a minor.”
Article 1511
“Any decision made by the parents regarding the exercise of parental responsibility must aim at the promotion of the best interests of the child. The best interests of the child must also be the aim of a court decision when, according to the provisions of the law, the court decides on an award of parental responsibility or on the way in which it will be exercised. The court’s decision shall additionally respect equality between the parents and shall not discriminate on the basis of sex, race, language, religion, political or other convictions, nationality, ethnic or social origin, or property. Depending on the child’s maturity, his or her view shall be sought and shall be taken into account before any decision relating to parental responsibility is made, to the extent that that decision concerns his or her interests.”
Article 1512
In the event of disagreement
“In the event of the parents’ disagreement in the exercise of parental responsibility, and the interests of the child require that a decision be made, the court shall make the decision.”
Article 1515
Child born out of wedlock
“Parental responsibility of a minor child who was born and remains without his or her parents being married, shall be exercised by his or her mother. In the event that the child is acknowledged by his or her father, the father shall also have parental responsibility but shall exercise it if there is an agreement between the parents under Article 1513 or if the mother’s parental responsibility has ceased or if the mother is unable to exercise it on legal or factual grounds. On an application by the father, the court may award him the exercise of parental responsibility or part of it to the extent that it is required by the interests of the child.
...”
Article 1520
Personal communication
“The parent who does not reside with the child shall have the right of personal communication with him or her. The parents do not have the right to obstruct the child’s communication with his or her ancestors unless there are serious grounds for doing so. In cases contemplated in the preceding paragraphs, the means of communication shall be regulated by the court.”
CODE OF CIVIL PROCEDURE
22. The relevant provisions of the Code of Civil Procedure, as applicable at the material time, read as follows:
Article 52
Recusal of judges and registry staff
“1. Judges, prosecutors or registry staff, acting in any capacity, may propose their recusal or be exempted from any proceedings:
(a) if they are parties or are connected to the parties as joint beneficiaries, are jointly liable, or are liable for compensation or have a direct or indirect interest in the proceedings;
(b) if they are the direct relatives of one of the parties, either through a blood relationship, or a relationship by marriage or by adoption; if they are indirect relatives through a blood relationship of up to the fourth degree, or through a relationship by marriage of up to the second degree if they are or were the spouse or fiancé of one of the parties;
(c) if they are blood relatives, or relatives by marriage, either directly or related by adoption, or blood relatives or relatives by marriage of up to the second degree, of a person who receives a salary or other payment with a monetary value for services provided or for any other reason, from a natural or legal person or any kind of company that has a direct or indirect private interest in the outcome of the proceedings;
(d) if in the same case they were examined as witnesses or participated as lawyers or in general as proxies, or have participated or may participate as representatives of one of the parties;
(e) if they conducted the case from which the dispute arose, or acted in the trial as experts or consultants or arbitrators or drafted the document being challenged or were part of the composition of the court whose decision was appealed against or against which an appeal on points of law had been lodged;
(f) if they caused or could cause a suspicion of bias, especially if they had with one of the parties a special friendship, a special relationship of duty or dependence, or a dispute or a hostile relationship. 2. Prosecutors may not be exempted when acting as parties.”
Article 53
“An application for the exemption of all the members of the Court of Cassation or of its prosecution service or for the exemption of so many members of the Court of Cassation that it would no longer be lawfully composed, shall be inadmissible.
...”
Article 55
“If there is a reason for them to be exempted, judges of multi-member courts and prosecutors must declare it to the president of the court.
...”
Article 57
“1. An exemption shall be put forward by the relevant party five days before the relevant hearing, however [it may be put forward] at the latest before the end of the hearing, only if it is likely that the event or the reasons for exemption will take place or became known to the party after the end of the five-day time-limit ...
... 3. An application for exemption which is not submitted in accordance with the preceding paragraph shall be inadmissible and shall be rejected by the same court from which the exemption is requested ...”
Article 58
“An application for exemption that is submitted up until the start of the hearing shall be made by submitting a document to the registry of the relevant court. The request shall include the reasons for exemption and shall be inadmissible if it does not do so.”
Article 59
“When the application for exemption is submitted during the hearing, it shall be made by a statement that shall be recorded in the court record and shall refer to the reasons for exemption. In multi-member courts, the application shall be heard immediately, without the presence of the member in respect of whom the application was submitted. The latter shall be obliged to abstain from any action from the moment that he or she learns that an application for exemption has been submitted, unless there are any risks arising from the abstention.”
Article 144
“1. The time-limits that are set by law or by the courts shall commence from the day after notification or after the relevant fact that constitutes the commencement of the time-limit, and shall end at 7 p.m. of the final day, and if that day is by law a day that must be exempted (εξαιρετέα), at the same time of the next non-exempted day. 2. A time-limit that commences by the notification of documents shall also run against the person who ordered the notification. 3. Saturday shall be considered for the purposes of the present Code as an exempted and non-working day.”
Article 568
“... 2. The registry of the Court of Cassation shall submit the documents that have been submitted, without delay to the President of the Court of Cassation, who shall assign the relevant section, and to the president of the section with a note on the copy of the appeal on points of law stating:
a) a date for the hearing of the case;
b) the time-limit within which the notification of the hearing has to be served;
c) the judge rapporteur of the Court of Cassation to whom the case file shall be transmitted for the purposes of Article 571.
...”
Article 569
“1. Additional grounds of appeal on points of law shall be admissible, even if the appeal on points of law does not contain a reason that is admissible and specific. 2. Additional grounds of appeal on points of law concerning the same parts of the challenged decision and the parts that are obligatorily connected with them, shall be lodged only by a document that is submitted to the registry of the Court of Cassation, at least thirty full days before the hearing of the appeal on points of law, as provided for by Article 281, under which a report shall be drafted. A copy of the document containing the additional grounds of appeal on points of law shall be served before the [expiry of] the same time-limit on the person against whom the appeal on points of law has been made and on the other parties ...”
Article 577
“1. The court shall first consider the admissibility of the appeal on points of law. 2. If the appeal on points of law has not been made lawfully or if one of the conditions of admissibility is missing, the Court of Cassation shall reject the appeal of its own motion. 3. If the Court of Cassation considers the appeal on points of law to be lawful and admissible, it shall examine the admissibility and well-foundedness of [each of] its grounds.”
 Code on the organisation of the courts and the status of judges
23. The relevant provisions of the Code on the Organisation of the Courts and the Status of Judges read as follows:
Article 91
Disciplinary Offences
“1. A disciplinary offence shall consist of a culpable and imputable (υπαίτια και καταλογιστή) act or omission of a judge, inside or outside the service, which is contrary to the obligations stemming from the Constitution and the relevant provisions or which is incompatible with his or her office and harms his or her reputation or the reputation of justice. 2. Disciplinary offences of a judge shall be:
...
d) undignified or improper behaviour inside or outside the service;
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
24. The applicant complained that the limitations imposed by the domestic courts when setting his contact schedule with his daughter violated his right to respect for his family life under Article 8 of the Convention, which 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.”
AdmissibilityThe parties’ arguments

25. The Government argued that the applicant had not exhausted the available domestic remedies. In particular, in his appeal on points of law to the Court of Cassation, the applicant had failed to rely on his rights under Article 8 of the Convention. His only reference to the provision of the Convention had been included in the additional grounds of appeal on points of law that had been rejected as having been lodged out of time. 26. The applicant denied this allegation by arguing that he had relied on the domestic provisions of the Civil Code having the same effect as Article 8 of the Convention. He had additionally cited several of the Court’s judgments that he had considered pertinent for his case. Moreover, he had submitted additional grounds in his appeal on points of law, including as a separate ground a violation of Article 8 of the Convention; however, the Court of Cassation had rejected the additional grounds as inadmissible.

Outcome for Article 8: no_violation