Isyyslain tiukka määräaika on ihmisoikeussopimuksen vastainen
Euroopan ihmisoikeustuomioistuin on tänään antanut kaksi tuomiota, joissa vahvistetaan se, että korkeimman oikeuden noudattama tiukka tulkinta isyyslain voimaanpanolaissa olevan määräajan suhteen on ihmisoikeussopimuksen vastainen.
Toinen tänään ratkaistuista tapauksista on korkeimman oikeuden vuonna 2003 ratkaisema tapaus KKO 2003:107. Tuolloin korkein oikeus totesi seuraavaa:
Isyys - Isyyden vahvistaminen
Perustuslaki - Perusoikeudet - Yhdenvertaisuus
Ennen isyyslain voimaantuloa syntynyt A oli nostanut isyyden vahvistamista koskevan kanteen sen jälkeen, kun isyyslain voimaanpanosta annetun lain 7 §:n 2 momentissa säädetty viiden vuoden määräaika oli kulunut ja mies oli kuollut. Mainitun säännöksen soveltaminen ei ollut ristiriidassa perustuslain 6 §:n 2 momentissa säädetyn syrjinnän kiellon kanssa.
L isyyslain voimaanpanosta 7 § 2 mom
PL 6 § 2 mom
Nyt siis tämän linjauksen on todettu olevan ristiriidassa ihmisoikeussopimuksen kanssa. Kannanotto sisältyy 6.7.2010 annettuihin tuomioihin Grönmark v. Finland (application no. 17038/04) ja Backlund v. Finland (application no. 36498/05).
- 06.07.2010 Grönmark-tapaus - Yksityiselämän suoja - Isyyden vahvistaminen - Kanneaika
- 06.07.2010 Backlund-tapaus - Yksityiselämän suoja - Isyyden vahvistaminen - Kanneaika
Ihmisoikeustuomioin totesi tuomiossaan asiassa Grönmark v. Suomi seuraavaa:
54. Turning to the present case, the Court notes that the provisions of the Paternity Act adequately secure the interests of a child whose father acknowledges him or her, or who is born after the entry into force of the Paternity Act, or who is born before and is able to initiate the paternity proceedings within the period provided for by the Act. They do not, however, make any allowance for children in the applicant's situation: her father had not acknowledged her. When the statutory five-year-period started she was eight years old and when it finished she was thirteen years old. The child welfare supervisor was not entitled to exercise the child's right of action without a separate authorisation from the mother. When she reached the age that she could have taken action without her mother's consent, the limitation period had already elapsed.
55. The Court has difficulties in accepting the inflexible limitation period with time running irrespective of a child's age and legal capacity, and without providing any exceptions to the application of that period (see, mutatis mutandis, Shofman v. Russia, cited above, § 43). The main problem therefore is the absolute nature of the time-limit rather than its dies a quo as such. In view of the fact that in the present case the biological father had already died, judicial proceedings before the national courts were the only avenue by which the applicant could have legally established the legal status of her biological father. As a result of this rigid time-limit, as upheld by the Supreme Court, the applicant was deprived of the possibility of obtaining a judicial determination that R.J. was her father. She was deprived of this right even though she was in a situation where she had not had any realistic opportunity to go to court during the limitation period due to her age (see, mutatis mutandis, Phinikaridou v. Cyprus, cited above, § 62; and Turnalı v. Turkey, no. 4914/03, § 44, 7 April 2009).
56. Furthermore, even though the identity of the applicant's biological father was known to all parties, the applicant was able to provide only later, through DNA tests, conclusive evidence about her biological father's paternity. The Court finds it difficult to accept that the national authorities allowed the legal reality to contradict the biological reality by relying on the absolute nature of the time-limit (see Paulík v. Slovakia, cited above, § 46).
57. Moreover, the Court notes that national legislation did not provide any alternative means of redress as the time-limit could not as such be restored by seeking extraordinary remedies. Nor had the Supreme Court accepted any exceptions to be made to the application of the time-limit in question except in one exceptional case.
58. It is clear from the Supreme Court's judgment that the general interest as well as the competing rights and interests both of the putative father and his family were accorded greater weight than the applicant's right to have her origins legally confirmed. The Court, however, does not consider that such a radical restriction of the applicant's right to institute proceedings for the judicial determination of paternity was proportionate to the legitimate aim pursued. In particular, it has not been shown how the general interest in protecting legal certainty of family relationships or the interest of the father and his family outweighed the applicant's right to have an opportunity to seek judicial determination of paternity. This is even more so in the present case as the identity of the applicant's biological father had been known since her birth, he had paid child support to her and the biological father's relatives did not oppose the confirmation of paternity. In this connection the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32).
59. Hence, even having regard to the margin of appreciation left to the State, the Court considers that the application of a rigid time-limit for the exercise of paternity proceedings, regardless of the circumstances of an individual case and, in particular, the obligation to take action within that time-limit, impairs the very essence of the right to respect for one's private life under Article 8 of the Convention.
60. In view of the above, and in particular having regard to the absolute nature of the limitation period and the Supreme Court's refusal to allow any exceptions thereto, the Court finds that a fair balance has not been struck between the different interests involved and, therefore, that there has been a failure to secure the applicant's right to respect for her private life.
61. Accordingly, the Court finds that there has been a violation of Article 8.
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