The process of determining paternity by court order, and subjection to a blood test
Minor’s right to personal identity
Public interest; the parties’ duty to cooperate in determining the truth
RULING Nº 616/98
21 of October of 1998
The right to integrity of the person, enshrined in Article 25 of the Constitution, is a personal right relating to an element that is inherent in individual human dignity. The right to physical integrity is given practical form in the right not to be subjected to bodily injury. Within the limits of constitutional protection, a «blood test» designed to determine the paternity of a minor, to which the defendant refused to submit, may therefore violate the right to individual physical integrity.
In actions to establish paternity, it is also important to enforce the child’s right to his/her personal identity (Article 26.1 of the Constitution). This entails safeguarding those elements that identify each person as a unique, irreducible individual; as well as the right to a name, it must surely include the right to a «personal background», that is, the right to recognition of the identity of one’s parents.
The Court was asked to rule on two constitutional questions arising from the rules governing actions to establish paternity.
First, it found that the preliminary phase of the investigation - culminating in a report by the public prosecutor concerning the execution of the action to establish paternity, with a view to a court decision as to whether it should be declared admissible or dismissed - was of an administrative nature and did not as such constitute legal proceedings. Refusal to allow the defendant any right of appeal against this decision on the admissibility of his case did not violate the guarantee of access to the courts in order to defend one’s rights and interests, or the adversarial principle.
With regard to the second constitutional question, the Court ruled that the Civil Code simply referred to blood tests as a form of proof in actions to establish paternity; it did not prescribe or legitimise the enforcement of such tests, as the person concerned could refuse a blood test. The defendant was obliged to co-operate in appropriate blood tests where essential in order to determine the paternity of a minor, in view of his duty to co-operate in the administration of justice; in the event of an unwarranted refusal by the person concerned to submit to a blood test, the court must freely assess this refusal to co-operate when taking evidence.