Imposition of a new time limit for bringing paternity and maternity investigation actions in cases that are pending when the new norm comes into force.
Norms that restrict fundamental rights
Right to personal identity
Right to know one’s own paternity
Search to discover paternity
RULING Nº 24/2012
17 of January of 2012
The Constitution does not confine the ordinary legislator to determining that its decisions will only have effects in the future. There are even situations in which the fact that a law attributes retroactive efficacy to the regimes it establishes represents the best way of pursuing public interests and protecting subjective legal positions. There are, however, limits on this ability on the part of the legislator to give retroactive efficacy to its choices. One of these limits is derived from the idea of the state based on the rule of law, and from the protection of the legitimate trust citizens are entitled to have in the continuity of the legal order, which is innate in that idea. Another is derived from express, individual prohibitions on the retroactivity of laws. The relationship between these two limits – that of the protection of trust, and that of any express prohibitions on the attribution of retroactive efficacy – is not a conflicting one. This is because the prohibition on retroactivity is itself one possible way of guaranteeing security values included in the principle of the state based on the rule of law, and of thereby ensuring the protection of trust in the reasonable predictability of the legislator’s choices.
Where legislative restrictions on fundamental rights are concerned (and putting aside the questions of how, in abstract terms, such a restriction should/can be admitted, and how in theory one should distinguish between legislation that is restrictive and legislation that – merely – shapes the implementation of a right), the fact is that legal time limits on the right to bring paternity investigation actions can in their own right have an intense negative effect on subjective legal positions to which the Constitution affords its protection.
One consequence of the circumstance that the law lays down a certain time limit after which a paternity investigation action can no longer be brought may be that the investigating party is unable to establish the paternal bond he/she aspires to. Setting such a time limit will thus always cause subjective legal positions that are protected by the Constitution to be affected to a certain negative extent. This negative effect may or may not be open to criticism from a constitutional point of view. Given that the legislator is responsible for finding solutions that serve to bring different and sometimes conflicting constitutionally protected rights and interests into harmony with one another, it must also decide whether and under what circumstances it is justifiable to reduce the scope of, or the protection offered by, one of those rights or interests, in order to promote all of them in a balanced or proportional way. Negatively affecting fundamental rights to a “simple” extent and negatively affecting them to an unconstitutional extent are thus two different things.
However, if legislation that affects rights negatively is not to deserve constitutional criticism, it must fulfil requisites other than just that of proportionality – in particular, the requisite that laws which negatively affect subjective legal positions that possess the nature of fundamental rights, freedoms or guarantees cannot do so retroactively.
A norm that provides for time limits after which the right to bring paternity and maternity investigation actions lapses, and says that it is applicable to cases which are pending when it enters into force, is saying that the new regime it contains is also valid with regard to past events.
This suffices to conclude that it is unconstitutional.
This case involved an appeal to the Plenary of the Constitutional Court on the grounds that chambers of the Court had handed down opposing judgements on the same question of unconstitutionality.
In Ruling no. 164/11 a chamber of the Court held that a norm which required the imposition of a new time limit for bringing paternity and maternity investigation actions on cases that were pending when the norm came into force was unconstitutional; in Ruling no. 285/11 another chamber of the Court decided not to find the same norm unconstitutional.
The Plenary of the Constitutional Court found in favour of the jurisprudence in the first of these two Rulings and held the norm before it unconstitutional.
The arguments in favour of each of the two earlier decisions are naturally set out in the respective Rulings.
In the present Ruling the Court recalled its own earlier jurisprudence, which says that ordinary-law norms that set time limits for bringing court actions do not violate any constitutional norm or principle. This is because they only represent legitimate choices by the ordinary legislator with regard to the various ways in which it is possible to pursue the different constitutional values which, at the end of the day, are set out in the Article of the Constitution that protects the fundamental right of access to the law and to effective jurisdictional protection. However, the Court has moved away from this jurisprudential guideline on the ordinary law’s ability to lay down time limits for bringing paternity and maternity investigation actions. It has been of the view that subjecting the bringing of such actions to time limits entails ramifications which mean that doing so also brings into play various constitutional principles other than those of access to the law and to jurisdictional protection and of the protection of legal security. The Court considered that there can be no doubt that the right to personal integrity, and in particular to moral integrity, can and should be held to give rise to a true fundamental right to know who one’s parents are or were and to see that fact recognised. Inasmuch as a person’s paternity and maternity constitute essential references in their role as an intrinsic support for his/her individuality on both the biological (and in this dimension, with an irreplaceable nature) and the social levels, and given that the right to know the identity of one’s father or mother and to see that relationship recognised also represents a key element in each person’s ability to identify him/herself as an individual, we are in the presence of an essential dimension of the right to personal identity.
The Ruling was the object of one concurring and six dissenting opinions, and the majority decision was reached by the casting vote of the Court’s President. A particular concern in the dissenting opinions was that the Court’s jurisprudence says that for there to be a requirement for the material aspect of trust of the principle of legal security to be protected against innovations in the law, the latter cannot be dictated by the need to safeguard constitutionally protected rights or interests which should themselves be considered to prevail over that principle. The dissenting Justices were of the view that the legislator’s option to pursue a given interest and the consequent decision to apply the new law to pending cases was a choice that falls within the legislator’s freedom to create and shape the law, and one that was designed to avoid an inadmissible fragmentation of the democratic legal order. The fact is that that the norm under which the new law was to be applied to pending cases meant that the legal order would have treated all the cases that were pending when the law entered into force in the same way. The legislator’s choice would thus appear to be fitting and justified by the need to afford equal treatment to those situations, and therefore did not violate the principle of legal security.
The dissenting opinions also include the view that in the past, the Constitutional Court has held that time limits on bringing actions to establish filiation do not constitute a restriction on the fundamental rights at stake therein, but rather a conditioning of those rights that imposes mere onuses of diligence with regard to the initiation of proceedings.
Another argument put forward by one of the dissenting Justices was that even if the imposition of time limits on the exercise of the right to investigate one’s paternity can be treated as a restriction on the fundamental right to personal identity, thereby and to that extent making that imposition subject to the constitutional rule that laws which restrict fundamental rights, freedoms or guarantees cannot have retroactive effects, in the concrete case before the Court this constitutional norm was not breached, inasmuch as the application of the new limit to pending cases (i.e. to legal situations that were not yet definitively consolidated) did not constitute an example of authentic retroactivity. The legal position with regard to formal transitional norms, such as the norm that was questioned in the present case, is entirely separate from the position with regard to the prescriptive content and scope of the substantive norm which the transitional norm imposes.
Rulings nos. 164/11 (24-03-2011) and 285/11 (07-06-2011) are respectively included in the jurisprudence selected for Bulletin on Constitutional Case-Law nos. 2011/1 and 2011/2.