Attribution of retroactive effects to a new legal regime governing the time limit on investigating paternity
Right to personal identity
Recognition of paternity
Denial of paternity
Right to know paternity
Search for paternity
RULING No. 164/11
24 of March of 2011
The attribution of retroactive effects to a new legal regime governing the time limit on paternity investigation actions is prohibited under the Constitution. Although the Constitution of the Portuguese Republic does not require the ordinary legislator to legislate in such a way that the effects of its decisions apply only to the future, there are limits to this principle. These limits can result from an express prohibition on retroactivity, or they may be implicit and be derived from the principle of a state based on the rule of law and from the protection of the legitimate trust that citizens are entitled to have in the continuity of the legal order, which is innate in that principle.
The consequence of the imposition by the law of a time limit on the ability to bring an action to investigate paternity may be that it is impossible for the person seeking the investigation to form the paternal bond he/she is looking for. This means that such an imposition may have a certain effect on constitutionally protected subjective legal positions. That effect may not be unconstitutional in its own right; but when it is negative, an effect on fundamental rights, freedoms and guarantees must not only be proportional, but must also respect the constitutional imperative that laws which make provisions in relation to the regime governing those rights cannot have retroactive effects.
The Coimbra Court of Appeal decided not to apply a transitional-law norm under which a new time limit for bringing paternity investigation actions was applicable to pending cases, on the grounds that this was unconstitutional. As such, the Public Prosecutors’ Office was required to bring this mandatory appeal against that decision before the Constitutional Court.
The issue in the present Ruling was thus the constitutionality of the retroactive application of a new regime governing challenges against paternity to cases that were pending on the date on which the said regime came into force; it was not the constitutionality of the new regime itself.
The plaintiff brought an action for the investigation of paternity at first instance 34 years after she came of age. Her request was based on presumptions of biological filiation that are provided for in the Civil Code, and she had requested that biological filiation identification tests be carried out. Inasmuch as the person she supposed to be her father died and was cremated while the action was still pending, the plaintiff asked that the exams be carried out in the form of blood samples and DNA tests on the deceased’s acknowledged children, who assumed their father’s position in the action following his death. The court of first instance ordered that these exams take place, but the examinees appealed against this decision, invoking a supervening provision in a law that changed the time limit for bringing paternity investigation actions. That law contained a transitional provision under which it was applicable to cases that were pending on the date on which it entered into force. The fact was that the new time limit would have meant that the plaintiff’s right to seek a judicial investigation of her paternity would have lapsed, and the exams ordered by the court would thus no longer be useful. The Coimbra Court of Appeal denied the children’s appeal, because it refused to apply the abovementioned transitional norm.
In its Ruling, the Constitutional Court held that the constitutional parameter that ought to be used to gauge the constitutionality of the retroactive application of the regime was the right to personal identity.
The Court has been of the view that ordinary-law norms which set time limits for bringing court actions do not breach any constitutional norm or principle, to the extent that they limit themselves to embodying legitimate choices by the legislator with regard to the various models that could be used to pursue the different values enshrined in the Constitution.
However, the Court has also adopted the stance that this question takes on a different shape when what are at stake are legal time limits on bringing actions to investigate paternity. In the latter, besides the questions linked to the principles of access to the law and to effective jurisdictional protection, and of the protection of legal security, we are faced with questions regarding the effects which time limits for bringing paternity investigation actions have on subjective legal positions that enjoy constitutional protection, be it positions pertaining to the investigator, or to the investigated party (e.g. the supposed father’s right to the protection of his privacy), or be it situations that are objectively related to legal security.
The fact that subjective legal positions are affected by the establishment of new time limits may not be subject to criticism in constitutional terms, inasmuch as it falls to the legislator to discover solutions that harmonise different – and even conflicting – rights and interests, all of which are protected by the Constitution. However, the circumstance that a given time limit on bringing this type of investigative action may make it impossible for the investigating party to establish a paternal bond means that there is a negative effect on subjective legal positions whose nature is that possessed by the fundamental rights, freedoms and guarantees. As such, norms of this kind cannot be given retroactive efficacy.
Two Justices, including the original rapporteur (who was consequently substituted in that role), dissented from the majority view. They were of the opinion that the constitutional parameter that should have been used to assess any unconstitutionality on the part of the norm whose application was denied by the court a quo was not the fundamental right to personal identity. In her dissenting opinion, the original rapporteur argued that the parameter should instead have been that of the right of access to the courts. She noted that in its jurisprudence, the Constitutional Court has held that the setting of time limits beyond which actions cannot be lodged does not constitute a restriction on the right of access to the courts, but rather just a regulation of the exercise of that right, on top of which the case before the Court involved a plaintiff who had waited thirty-four years before exercising that right. As such, the dissenting Justices felt that the Court should not have held the norm to be unconstitutional.
Rulings nos. 23/06 (10-01-2006), 310/05 (08-06-2005), 247/02 (04-06-2002), 99/88 (28-04-1988).