Last Updated on December 6, 2022 by LawEuro
Information Note on the Court’s case-law
December 2022
Judgment 6.12.2022 [Section I]
Article 8
Positive obligations
Prolonged inability to bring an action to establish paternity on the part of the biological father owing to the length of the proceedings to contest the paternity of the putative father: violation
Facts – The applicant was unable to bring an action to establish paternity on the part of her alleged biological father because the law made such an action contingent on a final judgment ruling out paternity on the part of the putative father (her mother’s husband) in the proceedings to contest paternity. No such judgment had been given in the present case, although the proceedings had been ongoing for over twelve years.
Law – Article 8:
The facts of the case, which concerned paternity proceedings, undoubtedly came within the ambit of Article 8, which conferred on each individual the right to know his or her origins and to have them established in law.
The applicant had been left in a state of uncertainty for twelve years with regard to her personal identity owing to her inability to bring an action to establish paternity because the judgment in the proceedings to contest paternity had still not become final.
While it was true that the applicant had reached the age of majority when she brought the proceedings in the domestic courts, this did not detract from her right under Article 8 to know her origins and have them recognised. That right did not cease with age, quite the reverse. Birth, and in particular the circumstances in which a child was born, formed part of the child’s, and subsequently the adult’s, private life guaranteed by Article 8.
Individuals in the applicant’s situation had a vital interest protected under the Convention in obtaining the information which they needed to learn the truth about an important aspect of their personal identity.
A system such as that in Italy, under which an action to contest paternity was of a preliminary nature in relation to proceedings to establish paternity, could in principle be considered compatible with the obligations arising out of Article 8, bearing in mind the State’s margin of appreciation. Nevertheless, in the context of such a system the interests of the person seeking a determination of his or her parentage had to be protected. This was not achieved where the proceedings lasted for several years and prevented the person concerned from bringing an action to establish paternity.
There were no available means of speeding up the proceedings so that the applicant could bring an action to establish paternity even though the judgment in the proceedings to contest paternity was not yet final. No procedure of this kind was provided for in the present case. The action to establish paternity lodged by the applicant in the District Court had been declared inadmissible in accordance with the judicial practice applicable at the time, without any consideration of her specific circumstances.
In that regard the Constitutional Court, in July 2022, had invited the legislature to take action to regulate the issues surrounding the establishment of the biological truth, without placing disproportionate restrictions on other constitutional rights. It acknowledged that proceedings such as those in the present case imposed a heavy burden on persons seeking to have their biological identity recognised and were liable not only to result in a violation of the reasonable length of proceedings, but also to act as a bar to the exercise of the constitutional right to bring an action. Moreover, these matters concerned actions aimed at protecting fundamental rights in the sphere of biological status and identity.
There was also a risk that the applicant, after several years of proceedings and once her former status as daughter had been terminated, would find herself without any status. She would also have to commence new proceedings to establish paternity during which she would be left in a state of uncertainty regarding her parentage.
Accordingly, the applicant remained in a state of prolonged uncertainty with regard to her personal identity. The way in which the proceedings were conducted constituted disproportionate interference with her right to respect for her private life. In the circumstances of the case, the authorities had therefore failed in their positive obligation to secure that right to the applicant.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
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