THIRD SECTION
CASE OF I.V. v. ESTONIA
(Application no. 37031/21)
 
JUDGMENT
 
Art 8 • Private life • Unsuccessful attempt by a Latvian national to obtain the annulment of an Estonian court decision by which his biological son was adopted by the husband of the mother • Domestic courts’ failure to act with sufficient diligence in adoption proceedings • Applicant’s pending paternity proceedings in Latvia, which Estonian courts were or ought to have been aware of, not taken into account • Rejection of applicant’s annulment request solely on formal grounds • Principles deriving from Court’s case-law on putative fathers challenging legal paternity of someone who recognised a child as their own also applicable to the question of whether an alleged biological father should be allowed to challenge the adoption of his alleged child by another person • Failure to identify and examine the particular case circumstances or assess rights and interests of individuals involved in either the adoption or annulment proceedings • Fair balance not struck
 
STRASBOURG
10 October 2023
 
FINAL
 
10/01/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of I.V. v. Estonia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Yonko Grozev,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 37031/21) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr I.V. (“the applicant”), on 19 July 2021;
the decision to give notice to the Estonian Government (“the Government”) of the complaints under Articles 6 and 8 of the Convention concerning the conduct and outcome of adoption proceedings and subsequent proceedings for annulment of the adoption decision;
the indication by the Latvian Government that they did not wish to exercise their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court;
the decision not to have the applicant’s name disclosed;
the parties’ observations;
Having deliberated in private on 19 September 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant’s son was born in 2006, but the applicant was never entered in the register of births as the boy’s father. The case concerns the applicant’s unsuccessful attempt to obtain the annulment of a court decision by which his biological son was adopted by another man. THE FACTS
2. The applicant was born in 1965 and lives in Riga. He was represented by Mr K. Oļehnovičs, a lawyer practising in Riga. 3. The Government were initially represented by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights, and subsequently by Mr T. Kolk, her successor in that office. 4. The facts of the case may be summarised as follows. General background of the case
5. The applicant had a relationship with A.Z. In spring 2006 A.Z. gave birth to a son, A.E.Z. On an unspecified date the applicant suggested to A.Z. that they officially register the birth and record his paternity in the register of births, but she refused. 6. From 13 January 2007 onwards A.Z. no longer permitted the applicant to meet the child. 7. On 18 January 2007 the applicant found out that on the previous day a certain A.L. had voluntarily acknowledged paternity and had been registered as A.E.Z.’s father. According to the applicant, he did not know who A.L. was. Proceedings for recognition and registration of paternity in Latvia
8. On 20 February 2007 the applicant lodged a claim with the Riga City Zemgale District Court (later named the Pardaugava District Court) in Latvia, challenging A.L.’s paternity. He asked the court to remove A.L.’s name from the register of births and to record him as the child’s father instead (hereinafter “the paternity proceedings”). 9. During the proceedings, the court ordered DNA tests. On 13 October 2010 the laboratory issued a report, finding that the probability that the applicant was A.E.Z.’s father was 99.9999141% and that it was impossible for A.L. to be the father. 10. On 25 November 2010 the court dismissed the applicant’s claim. It held that, even though the applicant was the child’s biological father, the Civil Law did not give him the right to contest a voluntary acknowledgement of paternity. That judgment was upheld by the Riga Regional Court on 26 May 2011. The applicant lodged an appeal on points of law. 11. On 16 May 2012 the Senate of the Supreme Court decided that the appellate court had erred in deciding that the applicant lacked standing to contest the acknowledgement of paternity. However, considering that A.E.Z. was living with his mother and A.L. as a family, and taking into account the child’s best interests, it considered that the interference with the applicant’s rights was proportionate and that his claim should be dismissed. 12. On 26 November 2012 the applicant requested the Supreme Court to reopen the proceedings on the grounds of newly discovered facts. 13. On 12 June 2013 the Senate of the Supreme Court examined the applicant’s request on the merits and upheld it. It noted that there was no documentary evidence to substantiate the claim that A.L. had been living with A.E.Z. The case was sent to the Riga City Zemgale District Court for fresh examination. 14. In the subsequent proceedings, the applicant supplemented his initial claim with a request that the court put in place contact arrangements for him and his son and grant interim measures in that regard. 15. On 6 June 2016 the Riga City Zemgale District Court granted an interim measure, determining the applicant`s contact rights with the child. In that decision, the court noted that the DNA results were sufficient to consider him the child’s biological father. On 17 January 2018 the court changed those contact rights at the applicant’s request. 16. On 4 April 2017 A.Z. informed the Latvian courts that on 13 January 2017 she had married H.V. and that they and A.E.Z. were living in Estonia. 17. On 3 January 2018 the Latvian Guardianship Institution submitted a judicial cooperation request to the Harju County Court in Estonia for the collection of evidence. The applicant was referred to as A.E.Z.’s biological father in that document. It appears from the background information and the questions posed in the request that the proceedings pending in Latvia concerned both the establishment of the applicant’s paternity and his contact rights with A.E.Z. 18. In accordance with the cooperation request the Harju County Court, sitting as a single judge, obtained opinions from the local guardianship authority and A.E.Z.’s guardian ad litem (määratud esindaja). Both concluded, after talking to A.E.Z., that he did not want to have any contact with the applicant and that forcing him to do so would not be in his best interests. In connection with the same judicial cooperation request, on 22 March 2018 the Harju County Court ordered A.Z., A.L. and H.V. to undergo a psychological assessment. It appears from the case file that the Harju County Court responded to the Latvian Guardianship Institution’s request on 9 April 2018. 19. On 8 May 2018 A.Z. informed the Latvian courts that A.E.Z. had been adopted by H.V. (see paragraph 25 below). 20. On 5 July and 5 December 2019 respectively the Riga City Pardaugava District Court and the Riga Regional Court dismissed the applicant’s claim. He appealed. 21. On 14 July 2020 the Senate of the Supreme Court allowed the applicant’s appeal on points of law. It quashed the Riga Regional Court’s judgment and remitted the case to the same court. The Senate noted that it could be concluded from the evidence (and that the parties did not dispute) that the applicant was A.E.Z.’s biological father and that at the time of the registration of A.E.Z.’s birth A.Z. and A.L. had been aware that the latter was not the child’s biological father. The court also noted that the lower courts had not taken due account of the reasons why the applicant did not have a relationship with A.E.Z. and of the fact that that situation was not the applicant’s fault. Moreover, while the lower courts had considered that allowing the applicant’s claim would not be in the best interests of the child, they had failed to properly identify the child’s best interests and to weigh those interests against the interests of the other parties to the proceedings, including those of the applicant as the biological father. The Senate observed that A.E.Z. had meanwhile been adopted in Estonia and that the applicant had applied for annulment of the adoption decision. In that connection, it noted that the judgment in the Latvian proceedings concerning paternity might be decisive in determining whether the applicant had standing in the annulment proceedings in the Estonian courts. 22. It appears that the Riga Regional Court submitted a second judicial cooperation request to the Harju County Court on 6 October 2020, asking its Estonian counterpart to organise a video conference so that it could hear A.E.Z. directly. On 4 November 2020 the Harju County Court cancelled the video conference as the child had refused to participate and his parents had refused to force him. 23. On 4 February 2021 the Riga Regional Court removed A.L.’s name from the register of births and registered the applicant as A.E.Z.’s father from his birth until 25 April 2018, the date of his adoption by H.V. That judgment entered into force on 20 April 2021. Adoption proceedings in Estonia
24. On 28 March 2018 H.V. lodged an application with the Harju County Court to adopt A.E.Z. (hereinafter “the adoption proceedings”). He attached the Riga City Zemgale District Court’s decision of 6 June 2016 (see paragraph 15 above) and a report prepared by the Estonian Social Insurance Board on the family’s situation. According to that report, A.L. had admitted that he was not A.E.Z.’s biological father despite being registered in the register of births. A.E.Z. knew who his biological father was, but had had no contact with him. The report also referred to the court proceedings in Latvia, noting that, according to A.Z., the applicant had been unsuccessful in his paternity claims, but that proceedings concerning contact rights were pending. The Social Insurance Board supported the adoption of A.E.Z. by H.V. 25. On 25 April 2018 the Harju County Court, sitting as a single judge (a different judge to the one involved in the judicial cooperation proceedings, see paragraph 18 above) allowed the application lodged by H.V. to adopt A.E.Z. The court noted that it had heard A.E.Z., A.Z., A.L. and H.V., who had all consented to the adoption. The court also noted that it had interviewed H.V. and collected background information on him. Lastly, the court noted that H.V. was married to A.Z., had been raising A.E.Z. for one and half years and that he and A.E.Z. had developed a parent-child relationship. That decision was not amenable to appeal. Proceedings for annulment of the adoption decision
26. After learning of the adoption decision of 25 April 2018, on 31 July 2018 the applicant lodged an application with the Harju County Court seeking its annulment (hereinafter “the annulment proceedings”). He asserted that both parents’ approval had been required for A.E.Z.’s adoption to be valid, but that he, as the biological father, had not given his consent. He also asked for the annulment proceedings to be suspended until the Latvian courts rendered their final decision in the paternity proceedings. 27. On 31 October 2019 the Harju County Court decided to stay the annulment proceedings pending the outcome of the court proceedings in Latvia. However, the Tallinn Court of Appeal subsequently quashed that decision and dismissed the applicant’s request to suspend the proceedings. The court reasoned that A.L., as A.E.Z.’s legal father (that is to say the person who had been entered in the register as such) had given his consent to the adoption and that there had been no need to obtain consent from a “true father whose legal status was floating”. It added that even if the Latvian courts were to recognise the applicant as the father of the child, that decision in itself would not render A.L.’s consent for the adoption – given at the time he was registered as the child’s father – invalid. The court added that awaiting the outcome of the court proceedings in Latvia was not in the child’s interests, given that they had already lasted for a long time. The appellate court’s decision was not amenable to appeal. 28. On 28 January 2020 the Harju County Court, after hearing the opinions of A.E.Z.’s guardian ad litem, A.Z., H.V. and the Social Insurance Board, dismissed the applicant’s application. It noted that at the time the adoption decision had been taken, A.L. had been A.E.Z.’s lawful father according to the birth certificate. As both he and A.Z. had given their consent to the adoption, the statutory requirement to have both parents’ approval had been met. The applicant’s claim that A.Z., A.L. and H.V. had acted in bad faith could not be proven and was not grounds for annulling the adoption decision. 29. Following an appeal by the applicant, on 1 September 2020 the Tallinn Court of Appeal upheld the first-instance court’s decision and dismissed the applicant’s request to suspend the proceedings. The court noted that the paternity proceedings in the Latvian courts had already lasted for years and held that the suspension of the proceedings should not lead to a situation where the application remained unexamined for an indefinite period of time. It noted that the judgment of the Senate of the Latvian Supreme Court dated 14 July 2020 (see paragraph 21 above) was not a final decision by which the applicant’s paternity had been legally recognised. The applicant lodged an appeal on points of law with the Supreme Court. 30. On 10 February 2021 the Supreme Court dismissed the applicant’s appeal. However, it quashed the judgments of the lower courts and decided that the applicant’s application for annulment should be rejected. 31. The Supreme Court explained that, under domestic law, the applicant had not been the person (the father) entitled to challenge the adoption decision, as the Latvian courts had not yet made a final decision recognising his paternity. Therefore, the lower courts had mistakenly examined his application for annulment on the merits when it should have been rejected at the outset. 32. The Supreme Court also explained that it could not be ruled out that the applicant’s paternity would be recognised as a result of the court proceedings in Latvia. However, this did not mean that his potential subsequent application for annulment of the adoption decision would automatically have to be allowed. Even if the applicant’s paternity was later recognised, that would not retroactively invalidate the consent of the legal father (that is to say the person registered as the child’s father at the time of the adoption) to the adoption. 33. The Supreme Court added that if a court learned during adoption proceedings that a child’s paternity was already being challenged in another set of court proceedings, it would normally have to stay them, unless awaiting the outcome of the paternity dispute was not in the best interests of the child. If, however, it was only revealed after the adoption decision had been taken that the person who had been registered as the child’s father and who had consented to the adoption was not actually the child’s biological father, the person who had been identified as the child’s biological father would not have the right to apply for annulment of the adoption decision. Accordingly, if the applicant lodged another application for annulment of the adoption decision, the courts would have to consider rejecting it in accordance with Article 371 § 2 (2) of the Code of Civil Procedure, as it would not be (legally) possible to achieve his objective in such proceedings. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Relevant domestic lawThe Constitution of the Republic of Estonia

34. Article 15 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides as follows:
“Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to request that any relevant law, other legislation or procedure be declared unconstitutional. The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided in the Constitution or which is otherwise in conflict with the Constitution.”
35. Article 152 provides:
“In court proceedings, the court shall not apply any law or other legislation that is in conflict with the Constitution. The Supreme Court shall declare invalid any law or other legislation that is in conflict with the provisions and spirit of the Constitution.”
The Code of Civil Procedure
36. Article 356 of the Code of Civil Procedure (tsiviilkohtumenetluse seadustik) concerns the suspension of court proceedings due to other pending court proceedings. Article 356 § 1 provides:
“Where the judgment fully or in part depends on the existence or absence of a legal relationship which is the subject matter of other judicial proceedings or the existence of which must be established in administrative proceedings or another type of judicial proceedings, the court may suspend the proceedings until the other proceedings are concluded.”
37. Article 371 § 2 (2) provides that a court can reject an application if it has not been lodged to protect a legally protected right or interest of the claimant, has not been lodged for a purpose for which the State should afford legal protection, or if the objective sought by the claimant cannot be achieved by the application. 38. Under Article 426 § 1, when a court rejects an application, it is deemed not to have been dealt with by the court and the claimant may bring proceedings against the same defendant on the same grounds in a dispute concerning the same subject matter. 39. Article 564 concerns applications for adoption. Article 564 §§ 1 and 2 read as follows:
“(1) The court shall decide on adoption on the basis of the application of a person seeking to adopt. (2) The application shall state the name of the person to be adopted, the year, month and day of his or her birth, as well as any known details of his or her parents ...”
40. Article 568 § 2 provides that an adoption decision enters into force upon service on the adoptive parent and cannot be appealed against or amended. 41. Article 569 concerns the annulment of adoption decisions and provides as follows:
“(1)  In proceedings for annulment of adoption, the court shall hear the Social Insurance Board. If possible, the adoptive parent shall also be heard. (2)  In proceedings for annulment of adoption, the court shall appoint a representative for the adopted child. (3)  A decision on annulment of adoption shall enter into force and becomes enforceable if an appeal is no longer possible.”
The Family Law Act
42. Section 152(1) of the Family Law Act (perekonnaseadus) provides that a child may only be adopted with the consent of his or her parents. 43. Section 166(1) provides that a court can annul an adoption if it took place without an application by the adoptive parent or the consent of the child or one of the parents. 44. Section 167(5) provides that an adoption will not be annulled if it seriously compromises the interests of a child, unless annulment is required due to the compelling interests of an adoptive parent. 45. Section 168(1) states that an application to declare an adoption invalid can only be lodged by a person without whose application or consent the child was adopted. Relevant domestic practice
46. The Supreme Court in its ruling of 7 December 2009 in constitutional review case no. 3-4-1-22-09 explained that according to Article 15 of the Constitution, a person had the right to request that any relevant law, other legislation or procedure be declared unconstitutional “while his or her case was before the court”. Arising from that, a person could request the initiation of “specific constitutional review” (konkreetne normikontroll) proceedings in order for the courts to assess the constitutionality of any provision regulating court proceedings, including a limitation of the right to apply to a court. Such a request had to be made in the proceedings in which the contested provision had to be applied. Pursuant to Article 15 § 2 and Article 152 § 1 of the Constitution, the courts had to, either at the request of a person or on their own initiative, declare any procedural provision, the application of which would result in a violation of the person’s fundamental rights, unconstitutional to the relevant extent. On the basis of such a decision, constitutional review proceedings in the Supreme Court were commenced. Thus, in the framework of adjudicating a specific case, including in assessing the admissibility of complaints submitted to it, courts had extensive possibilities to verify the constitutionality of the relevant procedural provisions, eliminate all unconstitutional procedural limitations and ensure effective judicial protection of an individual’s rights. 47. The Supreme Court noted that its case-law included a number of cases where the domestic courts, in the process of accepting a case for examination or in the course of the proceedings, had declared unconstitutional and set aside procedural provisions restricting a person’s right to effective legal protection (for example the Supreme Court Constitutional Review Chamber’s judgment of 25 March 2004 in case no. 3-4-1-1-043 concerning a provision in the Code of Misdemeanour Procedure which did not allow an appeal; a judgment of 9 April 2008 in case no. 3-4-1-20-074 concerning a provision in the Code of Civil Procedure which did not allow an appeal; and the Supreme Court’s en banc judgment of 16 May 2008 in case no. 3-1-1-88-075 concerning a provision in the Code of Misdemeanour Procedure which did not allow an appeal). The Supreme Court stressed that the right and obligation to assess the constitutionality of provisions to be applied in a specific case extended to courts at all levels of jurisdiction, not only the Supreme Court. THE LAW
ALLEGED VIOLATION OF ARTICLES 6 and 8 OF THE CONVENTION
48. The applicant complained under Articles 6 and 8 of the Convention about the conduct and outcome of the adoption proceedings and proceedings for annulment of the adoption decision. 49. He argued that the adoption, which had taken place at the time when the paternity proceedings in Latvia had still been pending, should never have proceeded without his consent as the biological father. Furthermore, his role as the biological father should not have been ignored in the subsequent annulment proceedings. According to him, the domestic courts had not taken into account the circumstances as a whole. They had failed to balance the various interests, including his interest in maintaining contact with his biological son. The applicant submitted that despite the eventual ruling of the Latvian courts confirming his biological paternity, according to the Estonian Supreme Court’s decision he still could not contest the adoption decision. 50. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case, and that it has previously held that while Article 8 of the Convention contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by that provision. It considers that the complaint raised by the applicant under Article 6 of the Convention is closely linked to his complaint under Article 8 and may accordingly be examined as part of the latter complaint. 51. Article 8 of the Convention 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

52. The Government raised several preliminary objections as to the admissibility of the applicant’s complaint. 53. Firstly, they submitted that an application for annulment of the adoption decision could not be considered an effective remedy. Since the adoption had taken place in Estonia, Estonian legislation had been applicable to the adoption proceedings and subsequent annulment proceedings. Under the relevant provision of the Family Law Act, those entitled to lodge an application for annulment were the child’s parents (see paragraphs 43 and 45 above). However, at the time of lodging his application for annulment, the Latvian courts had not (yet) recognised the applicant’s paternity and he had not been entered into the relevant register as A.E.Z.’s father. Instead, A.L. had been recognised as his father. The applicant had not requested the Latvian courts to apply interim measures, for example, to restrict A.L.’s custody rights to the effect that he could not consent to the child moving abroad or being adopted by someone else. In such circumstances, it should have been clear to the applicant, who had been represented by a lawyer, that the remedy he had tried to make use of had not been available for him at that time. Since the remedy had had no prospect of success for him at the time that he had tried to make use of it, it could not be considered an effective remedy. 54. However, in accordance with Article 426 § 1 of the Code of Civil Procedure (see paragraph 38 above) the rejection of his application had not precluded him from lodging a new one with the Estonian courts after the Latvian courts had recognised his paternity by the final decision which had entered into force on 20 April 2021. In this regard, the Government noted that the Supreme Court’s obiter dictum remark in its judgment of 10 February 2021 about the domestic courts having to consider the grounds for rejecting a possible new application by the applicant for annulment of the adoption decision (see paragraph 33 above) would not have a binding effect if the applicant indeed lodged a new application. 55. Moreover, if the applicant had lodged a new application with the domestic courts, he could have requested that the legal provision restricting his access to court be declared unconstitutional (see paragraphs 34-35 and 46-47 above). In contrast, the Government asserted that the Estonian courts had not had to set aside the provisions restricting the applicant’s access to court and initiate constitutional review proceedings of their own motion during the annulment proceedings that had ended on 10 February 2021. At that time, the applicant’s status as a father had not yet been confirmed by the Latvian courts. 56. The Government emphasised that although the remarkably long proceedings before the Latvian courts could have indeed reduced the applicant’s prospects of success had he lodged a new application for annulment of the adoption decision with the Estonian courts after the recognition of his paternity, this could not be blamed on the Estonian legal system. 57. In the alternative, the Government submitted that should the Court reject their argument concerning the existence of an effective remedy for the applicant after his paternity had been recognised by the Latvian courts, the present application should be considered to have been lodged outside the six-month lime-limit. Given that the applicant had become aware of the adoption decision by July 2018 at the latest, and given that – at that time – no effective domestic remedies had existed for him to challenge that, his time-limit for lodging an application with the Court had started running in summer 2018. He had lodged his application with the Court some three years later. The fact that the applicant had kept pursuing a domestic remedy which had had no prospect of success in his circumstances could not alter that finding. 58. The Government also submitted that Article 8 was not applicable to the facts of the present case. The applicant’s link with A.E.Z. was not sufficient to bring his situation within the scope of family or private life in the sense of that provision. He had never lived with the child and had only asked for (temporary) contact arrangements to be put in place in 2013 or 2014. In any event, the child had refused to meet with the applicant even though he had been aware that he was his biological father. The DNA test proving that the applicant was the biological father could not replace the emotional ties needed to make up a “family life” in the sense of the Convention. As to private life, the Government held that the applicant could only rely on that ground against Latvia as regards the paternity proceedings which – owing to their excessive duration – had made the relationship between him and his son non-existent. As matters stood, the applicant unfortunately had no relationship with his son that could qualify as “private life” for the purposes of the proceedings against Estonia. 59. The applicant submitted no arguments as to the admissibility of his complaints.

Outcome for Article 8: violation