CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2018 ruled that Article 8 of the Convention encompasses, subject to permissible limitations, a putative father’s right to institute proceedings to deny paternity of a child, based on scientific evidence. Therefore, the applicant should have been given a chance. Apparently, the Constitutional Court could have decided the case in the light of the Court’s, as well as of its own, case law on the matter, even in the absence of legislative changes. (This point made by the Court was criticized by two judges in their separate opinion.) Moreover, the applicant’s putative daughter reached majority decades ago and is not dependent on the applicant for maintenance; hence, the general interest in protecting her rights has lost much of its importance compared to when she was a child. Furthermore, she agreed to the DNA test and apparently did not consider the applicant to be her father. The Court concluded that the lack of a procedure for bringing the legal situation into line with the biological reality was inconsistent with the wishes of those concerned and did not in fact benefit anyone. Contrary to Article 8, a fair balance between the competing interests had not been struck and the legal system had failed to secure the applicant the necessary respect for his private life. A legislative amendment introduced in the course of the proceedings regarding this application resolved the difficulty. New Article 425a of the Special Judicial Proceedings Act 8 sets out that action for reopening of proceedings on declaration or denial of paternity may also be filed more than three years after the contested decision became final if paternity was declared by court before 31 December 1995 and new evidence which relates to new scientific methods that could not have been used in the original proceedings exists. The above date was chosen with regard to the development in DNA testing and its use in court proceedings, which had not been widespread before 1992. 3. Issues related to the length of legal proceedings One judgment and one decision addressed the phenomenon of allegedly protracted domestic proceedings, in total from three main angles – those of fair trial, of effective remedies, and of impact on enjoyment of property. 3.1 Some proceedings are lengthy, remedies exist, but they themselves can be protracted The case of Žirovnický v. the Czech Republic (nos. 10092/13 and six other applications, committee judgment of 8 February 2018) concerns, above all, the functioning of a compensation remedy against an excessive length of judicial proceedings and the question whether some of its deficiencies, related to the length of its adjudication, constitute a breach of Article 6 § 1 and/or Article 13 of the Convention. The applicant, while serving his sentence, initiated dozens, if not hundreds, of judicial suits, aimed (apparently, but in no way hypothetically) to shorten his time effectively spent in prison. Seven main and seven subsequent proceedings for damages against the State based on the excessive length of the main proceedings were under review in the case at hand. The Court accepted the Government’s objection that some of the complaints under Article 6 § 1 were inadmissible, inter alia as the applicant could not have suffered significant disadvantage when conducting a multitude of trivial suits in which little was objectively at stake. The domestic courts’ own assessment of damage that the applicant could have sustained as well as the

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8 Act no. 292/2013, as amended as of 30 September 2017 by Act no. 296/2017.