Can the prosecutor bring an action to establish or deny paternity and to establish ineffectiveness of acknowledgment of paternity?

Today’s article is devoted to the person of the public prosecutor, in fact, we tried to explain to you whether he has the right to initiate proceedings to establish or deny paternity and to determine the ineffectiveness of the acknowledgment of paternity.

First of all, it should be noted that under Article 7 of the Civil Procedure Code, the prosecutor may request the initiation of proceedings in any case, as well as take part in any proceedings already pending, if, in his assessment, the protection of the rule of law, citizens’ rights or the public interest so requires. This power, however, very importantly, does not apply to non-material family law cases, in which the prosecutor has the ability to bring only the cases specifically identified in the act.

Recently, the Supreme Court (Case No. V CSK 478/21) considered the issue of the prosecutor’s ability to bring an action to establish or deny paternity and to establish ineffectiveness of acknowledgment of paternity. Let’s start from the fact that initially Article 86 of the Family and Guardianship Code granted the prosecutor the possibility to bring an action in the above-mentioned cases without any limitations. However, the Supreme Court submitted to consideration the issue of whether the Courts would have grounds to assess such an action in terms of its compatibility with the principles of social intercourse. As of 13 June 2009, the content of the above mentioned Article 86 was modified and the possibility of the prosecutor to bring an action was made dependent on the situation in which the welfare of the child or the protection of legal interest so requires. As a consequence of the above considerations and the changes made, relying on article 86 of the Family and Guardianship Code as well as article 7 of the Code of Civil Procedure, the Supreme Court held that the possibility of bringing an action by a prosecutor does not depend only on him and his demonstration of the prerequisites indicated in the act. The possibility of instituting proceedings to establish or deny paternity and to determine ineffectiveness of acknowledgment of paternity depends on the prior assessment and verification of each case to be submitted to the Court. As we can read in the judgment of the Supreme Court of December 06, 2019 “The competence of the prosecutor to bring an action or participate in a civil case is broad and autonomous, and the prerequisites for this action are not subject under Article 7 of the Code of Civil Procedure to the control or assessment of the court, subject to the separate norms contained in Articles 22, 6116, 86 and 127 of the Family and Guardianship Code.”

In its deliberations, the Supreme Court referred to the decision of the European Court of Human Rights of 17 October 2017, as well as the resolution of the Supreme Court of 07 June 2021 1971. It is worth noting that this is the first time that the Supreme Court has considered and referred to the possibility of bringing an action to establish, deny or establish ineffectiveness of the acknowledgment of paternity by the prosecutor.