MARITAL PRESUMPTION AS A LEGAL OBSTACLE FOR GAINING LEGAL STATUS OF CHILDREN LOST IN ADMINISTRATIVE AND JUDICIAL LABYRINTHS IN NORTH MACEDONIA AND IN THE EUROPEAN COURT OF HUMAN RIGHTS’ CASE-LAW

Abstract

In May 2021 a young man aged 19, born and raised in the Republic of North Macedonia died unexpectedly under unknown health circumstances. Namely, he did not have health insurance, nor a general practitioner to follow his health because he was never issued a birth certificate. The news wrote that the only proof of his existence were excellent grades at school-which against all legal impediments allowed him to educate. For the rest of the legal society, the person never existed. One would ask why this happened. The administrative organs would “silently presuppose“ that the answer lies in the legal marital presumption of his mother’s husband from whom she was separated but not divorced at the time of his birth (even though they divorced afterwards), while she was living with another man (genetic father of the deceased man) in an extra-marital relationship. This administrative and legal nightmare is in line with the Family Act but against internationally ratified documents, such as the Convention on the Rights of the Child (art. 7 and 8), the European Convention of Human Rights (art. 8) and the practice of the European Court of Human Rights (e.g. Kroon and Others v. the Netherlands, 1994). Even more, it unveils one rigid and therefore ill functioning system. The text aims to emphasize that no matter how outdated national Family Act is (subject of another debate), national administrative and judicial organs should manifest flexible interpretation in light of the evolutionary concept of the law in the current time and context and through the prism of the specifics of each particular case. Family Act reforms are placed in the “waiting room“ for a prolonged period. Yet, families have to live with the consequences of an ignorant legislator and strict and positivistic interpretation of laws in their application by national institutions every day. Unfortunately, for some of them, like the boy who had waited for recognition for too long before he died, justice delayed is justice terminally denied.