TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 401/11

22 of September of 2011

Headnotes:

The right to know one’s biological parents and to establish the respective legal bond is part of the protection afforded to the fundamental rights to personal identity and to form a family. But it is not an absolute right and can find itself confronted with conflicting values. When this happens, the court’s task is to harmonise or even restrict the opposing interests. There is thus no obstacle that would prevent the legislator from modelling the exercise of this right in the light of other interests or values that also enjoy constitutional protection.

The absence of any time limit after which the right to bring paternity investigation actions lapses, thereby allowing people to exercise a right which they had thus far neglected, but choose to pursue now in a later phase of their life, may represent a maximum level of the protection of the right to personal identity, but this does not mean that that optimised protection is a constitutional requirement. The legislator’s option to also protect other values that are important to legal life by imposing time limits does not impinge on the frontiers of the sufficiency of the protection in question. This is because such a limitation does not prevent the holder of the right from exercising it, but merely imposes on him/her the onus of doing so by a given deadline.

What is more, the time limit of ten years from the investigating party’s coming of age or emancipation does not operate on its own, but in a way that is integrated with other deadlines, and the right to bring the action does not lapse until all of them have been reached. Even if ten years have already passed since the person’s coming of age or emancipation, the action can still be brought in certain situations that are provided for by law and cause a new time limit to be calculated. This is particularly the case when the investigating party becomes aware of facts or circumstances which were thus far unknown to him/her and which justify an investigation despite the exhaustion of other time limits.

In the present Ruling the Constitutional Court was of the view that despite the fact that the combination of the decisive scientific progresses in the field of the determination of biological filiation and the evolution in the dominant values regarding filiation has led to a significant reduction in the value of the interests that were the essential reason for the imposition of time limits for bringing paternity investigation actions, some of those interests continue to possess a weight which the legislator is justified in taking into account when it makes its choices with regard to the definition of the regime governing the constitution of filiation. The constitution and complete determination of the filial bond with regard to both biological parents is also in the public interest and is an important principle for the way in which our law and our society are organised. The act of giving legal efficacy to the genetic bond of filiation not only has repercussions for the parent/child relationship, but also projects itself elsewhere – e.g. in terms of impediments to marriage. This, for example, is why the law gives the authorities the power to determine paternity on their own initiative.

It is in the public interest to establish the match between biological paternity and legal paternity as soon as possible, thereby operationalising the legal status of filiation with all the ensuing effects, in a way that is stable and accompanies the life of its subjects for as long as possible.

Summary:

The issue in this case was the constitutionality of a Civil Code article that sets a time limit of ten years counting from an adult investigating party’s coming of age or emancipation for the bringing of paternity (and maternity) investigation actions. The defendant in the court a quo, who was named as the heir in the investigated party’s will, submitted a number of arguments. One of these used the Civil Code norm in question here to say that the investigating party’s right to bring the action had lapsed. The court refused to apply this norm on the grounds that it was unconstitutional. As such, the Public Prosecutors’ Office brought the present mandatory appeal before the Constitutional Court, which it asked to review the norm’s constitutionality.

In the original version of this Civil Code article the time limit was substantially shorter (two years), and the Constitutional Court was called on a number of times to consider the constitutionality of time limits on the right to bring maternity and paternity investigation actions. In an initial phase, it always decided that the norms which laid down those time limits were compatible with the principles enshrined in the Constitution. It saw the deadlines as mere conditions on the exercise of the right to investigate paternity, which is itself inherent in the right to personal identity, and not as true restrictions on the latter fundamental right.

In essence the Court invariably held that the legal filiation regime in question ensured an appropriate balance between on the one hand the child’s right to recognition of his/her filiation, and on the other the interest of the supposed biological parent to not allow the continued existence of a situation of uncertainty, made worse by the random nature and degradation over time of the evidence, together with the interest of the peace of the investigated party’s conjugal family and his right to the privacy of his personal life.

However, the consolidation and successful implementation of new laboratory techniques for scientifically determining paternity were decisive factors in a change in the direction taken by Portuguese constitutional jurisprudence.

The way in which the constitutional jurisprudence in this field evolved shows us that the combination of the end of the fear that evidence was random and that its value might decrease with time, which was brought about by the scientific advances that allowed DNA testing with a reliability close to certainty, and the rapid changes in the area of the dominant values applicable to filiation, meant that the interests of the supposed biological parent’s legal security, the prevention of “fortune hunting”, the peace of the investigated party’s conjugal family and the right to the privacy of personal life lost in importance. They began to be seen as lesser interests in the face of the superior interest of the investigating party being able to know the origins of his/her existence and see them legally recognised.

The means par excellence of protecting and reconciling legally valuable public and private interests linked to legal security is the inclusion in the law of time limits on the exercise of the right in question. Such limits serve as a way of causing the holder of the right to exercise it without ado. This precludes the unjustified prolongation in time of a situation of uncertainty, which is why it possesses a compulsory function. The interests that exist in the filial relationship make themselves felt in the various relationships with a personal content, but very often also have important effects on material assets.

The Court found that the norm before it in this case is not disproportional, in that it does not violate the constitutional right to know one’s biological parents and to establish the respective legal bond, which itself falls within the scope of the fundamental rights to personal identity and the right to form a family.

The Ruling was the object of six dissenting opinions, including that of its original rapporteur. These were essentially based on the view that: the protection of the assets that pertained to the investigating party is not compatible with any limitation; or that even if it were possible to limit the investigating party’s interests, in the present case this would not be justified when one came to weigh up the proportionality of the various conflicting interests.

Supplementary information:

The Ruling compares the Portuguese legislation on this subject with the foreign legal systems that are close to ours. It also cites some jurisprudence of the European Court of Human Rights (ECHR), which has held that the existence of a time limit on the right to bring an action for the judicial recognition of paternity does not in itself constitute a breach of the Convention, and that it is important to determine whether the nature, duration and characteristics of the limit result in a fair balance between the investigating party’s interest in the clarification of an important aspect of his/her personal identity, the interest of the investigated party and his/her close family in the protection of facts that pertain to his/her intimate private life and occurred a long time ago, and the public interest in the stability of legal relations. The ECHR has emphasised that the right to respect for private and family life does not pertain solely to the person who wants to know who his/her parents are and to establish the respective legal bond, but also protects investigated parties and their families.

Cross-references:

See Rulings nos. 486/2004 (07-07-2004) and 23/06 (10-01-2006).