Application of a new regime governing time limits for maternity and paternity investigation actions to cases pending on the date on which the new regime came into effect
Protection of trust
RULING No. 285/11
7 of June of 2011
The application of certain norms to pre-existing legal situations – laws that are applied to pending cases, for example – cannot be included among the phenomena that are classed as authentically retroactive, but can only be placed in the merely retrospective or unauthentically retroactive category. A transitional-law norm that requires the application of a new regime governing the lapse of paternity investigation actions to cases that were pending on the date on which the new regime came into force is not unconstitutional. It would only be possible to talk about authentic retroactivity if the norm were to impose the new time limit in lawsuits that had already ended and transited in rem judicatam. The fact that the situations to which the new law was supposed to apply were not yet consolidated reduces the weight of the interests regarding legal security and the protection of the trust which citizens are entitled to have in the legal system.
The Coimbra Court of Appeal held that a transitional-law norm which said that a new time limit for bringing paternity investigation actions was applicable to pending cases was unconstitutional, and therefore declined to apply it. The Public Prosecutors’ Office is obliged to appeal against decisions in which courts refuse to apply norms on the grounds that they are unconstitutional, and therefore lodged the present appeal before the Constitutional Court, despite the fact that the Office itself agreed with the decision against which it was appealing and argued that the Court should hold the norm unconstitutional.
The question of constitutionality in this case was whether the imposition of the new time limit in cases that were pending on the date on which the new deadlines for the lapse of paternity investigation actions came into force violated the protection-of-trust aspect of the principle of legal security.
The Constitutional Court noted that there was substantial constitutional jurisprudence on this aspect of the principle of legal security – a principle which itself forms part of the principle of a democratic state based on the rule of law.
The court a quo was of the view that the norm in question was unconstitutional because it was in breach of the principle of legal security, inasmuch as it was a retroactive norm that thwarted citizens’ legal expectations
However, the Constitutional Court questioned whether the lower court was right to describe the norm as authentically retroactive. The Court emphasised that it is important to distinguish between cases of authentic retroactivity and cases in which a norm is only seeking to have effect in the future, but ends up affecting legal situations, rights or relationships that have arisen in the past but still exist. Albeit the paternity investigation action in the present case had already been brought and was pending on the date on which the new norm came into force, the hypothetical right of the party seeking the investigation to know his progenitor’s identity was not yet consolidated, inasmuch as it would only be at the moment when the ensuing sentence determining that it was correct to register the paternity transited in rem judicatam that that legal situation would be consolidated. The Constitutional Court also recalled its own earlier jurisprudence, in which it held that only a retroactivity that is intolerable because it affects citizens’ legitimately grounded rights and expectations in an inadmissible, arbitrary manner can be said to violate the principle of the protection of trust. It considered that there is no right to the non-frustration of legal expectations, or that the same legal regime will continue to govern lasting legal relations or complex facts that have already partly, but not completely, come about. Retroactive norms are permissible if there is an appropriate balance between the solidity of and justification for the expectations of private individuals on the one hand and the legislator’s freedom to shape legislation on the other. A norm that innovates is only illegitimate if it is not dictated by the need to protect prevailing interests; if such interests do exist, however, then one must conclude that it is indeed illegitimate. When we gauge whether this condition for a norm to be legitimate is met, we must take into account the worth and objective dignity of protecting the trust which a private individual had in the inalterability of a legislative framework that favoured him/her, the relative weight of the interests of the various private individuals concerned and the extent to which those interests are affected, and the freedom to shape legislation which a democratic legislator must enjoy. The fact that in Ruling no. 23/06 of 10-01-2006 the Constitutional Court declared with generally binding force that a time limit of two years counting from the investigating party’s coming of age for the right to investigate one’s paternity, after which the right lapsed, was unconstitutional is not enough to create the expectation on the part of private individuals that paternity and maternity investigation actions would cease to be subject to any time limit at all. This is because, in that Ruling, the issue was not whether the Constitution requires it to be possible to determine the biological reality of one’s filiation for an unlimited period of time, but rather and only the concrete time limit of two years following the investigating party’s coming of age or emancipation; in that Ruling, the Court did not consider the possibility of any other limit.
In the case before the Court in the present Ruling, the issue was the immediate imposition of new time limits on lawsuits that were already pending. The Constitutional Court considered that this was a legislative option which was legitimate and justified in the light of the need to safeguard the principle of equality. The norm means that all pending cases will be treated in the same way, and that investigating parties who brought their suits before the new law came into force will not be privileged.
The Ruling is the object of a concurring opinion and a dissenting opinion. The author of the former emphasised that the present question was not resolved by an earlier decision in which the Constitutional Court ruled that a certain time limit after which paternity investigation actions lapsed was unconstitutional; the author of the latter, who is the President of the Court, continued to support the grounds for the Court’s decision in Ruling no. 164/11, in which it held the norm to be unconstitutional.
See Rulings nos. 23/06 (10-01-2006) and 164/11 (24-03-2011). The latter was included in the selection of jurisprudence from the first four months of 2011 that was sent to the Venice Commission. In that case a different chamber of the Constitutional Court held the norm addressed in the present Ruling to be unconstitutional. The Court was of the view that although ordinary-law norms which set time limits for bringing court actions do not infringe on any constitutional norm or principle, to the extent that they simply reflect legitimate choices by the legislator as to the various means by which the different values enshrined in the Constitution can be pursued, there are other aspects to the question when what is at stake is the setting of time limits for bringing paternity investigation actions. In Ruling no 164/11 the Court said that the latter type of suit also involves questions regarding the effects that time limits after which paternity investigation actions lapse have on subjective legal positions to which the Constitution affords its protection – positions that can pertain to both the investigating and the investigated (the right to the protection of the alleged father’s privacy, for example) parties – and that in such cases the primary factor in gauging the constitutionality of the regime’s retroactive application is the right to personal identity.