General time limit on the right to investigate filiation; special time limit beginning when a man who has thus far treated a person as his child ceases to do so.
Paternity investigation action
End of an assumed child/father relationship
Right to personal identity
Principle of proportionality.
RULING No. 247/12
22 of May of 2012
The Constitutional Court was asked to determine the constitutionality of a three-year time limit for bringing a filiation investigation action in cases in which the existence of a parent/child relationship has already been openly assumed. In answering this question, the Court said that the most important issue was whether the legislator had exceeded its margin of freedom to shape legislation because the time limit it imposed was disproportionately short and thus in violation of the constitutional right to personal identity, or whether on the contrary the legislator had exercised a valid option in order to protect the values of legal certainty and security. The Court’s own jurisprudence indicates that if time limits after which the right to bring maternity or paternity investigation actions lapses are to respect the principle of proportionality, they must leave the holders of the right to personal identity a real, effective possibility of exercising the right to investigate. It is this possibility which is the essential content of the right in question, and not a supposed right to investigate such filiation relationships ad aeternum. This is also the minimum requirement according to the jurisprudence of the European Court of Human Rights (ECHR), which accepts that actions to establish filiation may be subject to certain preconditions, including the imposition of time limits, if they do not actually preclude the use of the means of investigation in question or represent an excessive burden. As the ECHR jurisprudence says, the existence of a time limit for bringing a lawsuit for the recognition of maternity or paternity does not in itself constitute a breach of the Convention; it is important to determine whether the time limit’s nature, duration and characteristics result in a just balance between the investigating party’s interest in clarifying an important aspect of his/her personal identity, the interest of the investigated party and his/her close family in being protected from suits concerning facts that pertain to their personal life and occurred a long time ago, and the public interest in the stability of legal relations.
The current Civil Code regime combines a general 10-year time limit counted from the occurrence of an objective fact – the investigating party’s coming of age – with special time limits counted from the occurrence of subjective facts which depend on knowledge of the facts that caused the investigating party to want to bring the action. The latter limit normally ensures that the person who thinks they may be someone else’s child has the reflection period needed to decide whether or not to bring an investigation action. There are also some other special time limits, which again only begin to count from the date on which the investigating party becomes aware of the facts that might constitute grounds for the investigation action.
All of this leads to the conclusion that there is no reason to consider the norm before the Court in this case unconstitutional, inasmuch as the three-year time limit it imposes is not inappropriate, unnecessary and disproportionate in relation to the need to safeguard the right to personal identity. The challenged norm does not violate the right to personal identity.
The Public Prosecutors’ Office appealed against a district court decision to refuse to apply two Civil Code norms that impose time limits after which the right to investigate who one’s father is lapses – an appeal that was mandatory because the district court based its decision on the unconstitutionality of the norms. The first question of the norms’ constitutionality or otherwise had already been analysed by the Plenary of the Constitutional Court (Ruling no. 401/11). At that time the Plenary declined to find the Civil Code norm which says that paternity investigation actions can only be brought while the investigating party is still a minor, or during the ten years following his/her coming of age or emancipation, unconstitutional. In the present case the Court applied this jurisprudence and adopted the same solution.
The second norm before the Court was the Civil Code provision that even if the general time limit on investigation has already passed, the investigating party may also bring an investigation action during the three years after he/she becomes aware of facts or circumstances that justify an investigation – particularly in cases in which, and counting from the moment when, the party’s supposed father stops treating him/her as his child.
The Public Prosecutors’ Office brought the present mandatory appeal against the decision of first instance (even though it had itself supported the district court’s view that the norms were unconstitutional). The district court supported its decision with jurisprudence from the Supreme Court of Justice, in which it was held that the right to bring paternity investigation actions cannot lapse. The Constitutional Court had already ruled against this jurisprudence, but its decision did not have generally binding force because it was handed down in a concrete review case.
The Constitutional Court reiterated that, while its jurisprudence has evolved over time, the grounds for its decisions have consistently followed a central line based on the view that imposing time limits on the right to bring filiation investigation actions is not in itself unconstitutional. There has been some divergence in the Court’s jurisprudence, not with regard to the constitutional conformity of setting time limits on filiation investigation actions, but in relation to the proportionality of the concrete limits.
A finding of unconstitutionality can result from a weighing-up of opposing rights or interests. The acceptability of the imposition of time limits on filiation investigation actions is linked to acknowledgement that the values those actions seek to safeguard are not absolute. The Court has already accepted that the legislator can opt to safeguard other values which also deserve protection and which can concretely conflict with the right to personal identity. The Court therefore continued to be of the view in the present case that the ordinary legislator enjoys the freedom to decide – on condition that the essential content of the fundamental rights at stake is itself provided for – whether or not to submit paternity investigation actions to a preclusive time limit, and that the legislator is also responsible for setting the concrete duration of that time limit, within the constitutionally accepted bounds imposed by the need to respect the principle of proportionality.
In the case of the norm that was the object of the present appeal, and to the extent that that norm establishes a three-year time limit on bringing paternity/maternity investigation actions from the moment at which the supposed parent stops treating the investigating party as his/her child, it is necessary to recognise that in situations in which the parent/child relationship has been openly assumed it is also possible to justify the imposition of a time limit on the respective maternity/paternity investigation action, on condition that the purpose of that time limit is to safeguard other values or interests which also warrant the protection of the Law.
The lapse of the right to bring filiation investigation actions is not just a civil-law sanction on failure to exercise the right for a certain period of time. As the Constitutional Court has said in its accumulated jurisprudence, the reasons for setting time limits on bringing paternity (or maternity) investigation actions are linked not only to concerns regarding legal security, but also to issues involving the abuse of a right. Both general interests and values related to the organisation of society around the institution of the family can justify the definitive consolidation in the legal order of a paternity that may perhaps not correspond to the biological reality, based on the passage of a given amount of time. In such a situation it is the interests of legal security and certainty regarding legal commerce in general that require the stabilisation of already established filial relationships. These values mean that family relationships must be legally stable, and interested parties are obliged to act quickly, so as to clarify such relationships when they exist. The legislator may thus validly opt to protect the values of legal certainty and security.
The original rapporteur dissented from the Ruling. He was of the opinion that because what was at stake here was the three-year time limit following the moment at which a father stops openly assuming a child as his, there were reasons for considering the limit too short. The dissenting Justice said that this situation represents a specific social situation created by the fact that one person acts paternally towards another who is not officially registered as his child. To require the latter to bring a paternity investigation action within three years of the end of the period in which he/she was treated as the supposed father’s child, when that end is not necessarily definitive – for as long as the supposed parent is still alive, the supposed child may always nourish the hope that a relationship which he/she may feel to be only temporarily interrupted can be restored – thereby placing him/her under the burden to the need to bring an action against someone he/she sees as his/her father, is to run the risk of damaging the relationship between them even more. As such, the dissenting Justice felt that the norm in question was inappropriate and disproportionate.
Ruling no. 401/11 (22-09-2011), which was included in the selection of jurisprudence sent to the Venice Commission with regard September-December 2011. Rulings nos. 99/88 (28-04-1988), 370/91 (25-09-1991), 626/09 (02-12-2009), 65/10 (04-02-2010), and 446/10 (23-11-2010),
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