TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 631/05

15 of November of 2005

Headnotes:

The right to personal identity includes, in addition to the personal identification aspect, the right to know one's origins or personal history. This aspect of personality presupposes, on the one hand, the existence of legal means to prove the biological ties and, on the other, legal recognition of those ties. The enshrinement in the Constitution of a fundamental right to knowledge and recognition of maternity and paternity, as an aspect of the right to personal identity (Article 26.1 of the Constitution), must therefore not be called into question.

Since the right to knowledge and recognition of maternity and paternity constitutes a fundamental human right, and consequently a right of the child, it must therefore form part of the protection which a child may expect from the state and society. As a right which society and the state must uphold, its enjoyment is in the general interest of the political community, i.e in the public interest. Moreover, knowledge of maternity and paternity is an essential component of the child's fundamental right to the free development of his or her personality.

Since the fundamental right to recognition of children's maternity and paternity is in the public interest, it is clear that a legal action to secure that recognition by judicial means may be brought by the public prosecutor's department, independently of the assertion of any power of representation with regard to the exercise of minors' rights.

When the fundamental right to respect for private life is weighed against the child's fundamental right to the protection of the state in securing recognition of his or her paternity, on the basis of the principle of proportionality, one cannot accept the prevalence of the latter right, because, in a way, that would mean recognising the existence of a right not to be the subject of an investigation and not to be judicially compelled, in an action brought by the state, to recognise paternity.

Summary:

The constitutionality issue concerns, on the one hand, the rules of the Civil Code interpreted as allowing the intervention of the public prosecutor's department as representative of the minor who is the originator of the action to establish paternity, which may conflict with the right to respect for private and family life of the person who is the subject of the investigation. Secondly, it concerns the rules laid down by the legislative instrument on the Organisation of the Protection of Minors, interpreted as allowing a "secret" investigation to be legitimately carried out as a preliminary administrative step of the action (under civil procedure) to establish paternity, the initiative for which lies with the public prosecutor's department. This informal investigation is not subject to the adversarial principle, and, here again, the public prosecutor's department, unlike the person who is the subject of the investigation, holds a privileged institutional position.

However, according to the Constitutional Court, the judicial decision as to viability which is given on completion of the informal investigation into paternity does not infringe the legitimate rights and interests of the presumed parent because it simply allows the public prosecutor's department to initiate an action to establish paternity.

In other words, the informal investigation procedure does not take the form of a civil action brought against the person who is the subject of the investigation to secure recognition of paternity. In this action, no claim is made against the presumed father, in a way which might oblige him to recognise his child, and neither are any facts put forward against him upon which such an application might be based. This being so, it would be unreasonable to require the intervention of the person under investigation as a party to these proceedings, in identical conditions to those of the action to establish paternity, which is subject to civil procedure and consequently to the principle of procedural equality and the right to adversarial proceedings. The informal investigation procedure is simply a means whereby the state fulfils, independently of the right to initiate a judicial action, the duty of protecting the child with regard to knowledge and recognition of his or her maternity or paternity or with regard to any challenges to it.

In conclusion, the rules giving the public prosecutor's department, as representative of the state, the power or duty to investigate paternity, when it has been established that it is possible to conduct an informal investigation, do not infringe any principle or rule of constitutional value. In such an action, the public prosecutor's department exercises the usual powers which procedural law confer on a party.

Supplementary information:

The constitutional case-law relating to the judicial decision ruling on the viability of an action as not infringing the legitimate rights and interests of the presumed parent is derived from Judgment no. 616/98 of 21 October 1998. For actions to establish paternity, see Judgment no. 456/03 of 14 October 2003, and the additional information thereon.