Fundamental Rights - Civil and Political Rights - Right to family life - Descent
Capacity to bring legal proceedings;
Child born out of wedlock;
Child, right to know parents;
Parentage, right to know;
Private life, right;
Right to family life
4 of October of 2018
The definition of a limitation period of 10 years calculated from the age of majority or emancipation of the child for the filing of a paternity investigation action is unconstitutional in violation of the fundamental rights to found a family, to personal identity, to the free development of one’s personality, as well as of the right to know one’s biological ancestry.
I - In a concrete review case, the Constitutional Court found that Article 1817 (1) of the Civil Code (hereinafter CC), as drafted by Law 14/2009, of April 1, was unconstitutional in the part where it applied to the paternity investigation actions ex vi Article 1873 of the CC, by providing for a limitation period of ten years for the filing of the paternity investigation action, calculated from the age of majority or emancipation of the child.
II – The question on whether the norm set forth in paragraph 1 of Article 1817 (1) of the Civil Code is constitutional has traditionally been dealt with in terms of an harmonization between conflicting interests: the right to personal identity and to establishing one’s paternity versus the right to privacy and intimacy of the family life, and to the consolidation of legal certainty – in accordance with a balancing method vis-a-vis the principle of proportionality. An evolution has meanwhile occurred leading to a deepened social awareness and a greater appreciation of the right to one’s genetic and personal identity.
III – In the past, the Constitutional Court case law had considered that the period limitations set forth in Article 1817 as drafted by Decree-Law 496/77 of November 25, were compatible with the constitutional principles; in a subsequent phase, it issued rulings that, while regarding a concrete period limitation as unconstitutional because it was too narrow, still admitted the definition of limitation periods for bringing a paternity investigation action to court.
IV - Law 14/2009 of 1 April, which amended Decree-Law 496/77 did not incorporate the rule of imprescriptibility with regard to the right of investigation of paternity, but instead set new time limits on the exercise of this right; in Ruling 401/11, the Constitutional Court did not deem the new wording of Article 1817 (1) of the Civil Code unconstitutional, based on the argument that the maturity of the child was established at 28 and that the interest of the petioned father to family peace and legal security also deserved protection.
V – In the present case, the Court considered, in contrast, that in examining the question of the constitutionality of the existence of a limitation period, irrespective of its actual duration, the consideration of the life experience or maturity of a person of 28 years old (which were beyond doubt) was not relevant.
VI – Ruling 401/11 is based on a weighting of interests that overvalues legal certainty beyond its actual constitutional weight; in the weighting up of the restriction of the fundamental rights sacrificed by the contested precept, account must be taken of the very personal nature of the rights restricted by the limitation period as well as of public order interests; in light of these principles, the arguments put forward by Ruling 401/11 namely the ‘fortune hunting’ argument, the legal certainty argument, and the protection of family peace argument must be re-examined.
VII - Although the principle of legal certainty is not explicitly enshrined in the Constitution, it may be inferred from the principle of democratic rule of law. In contrast with what was argued in Ruling 401/11, legal certainty, which is linked to the protection of financial interests, must, in case of conflict, yield to the primacy of the dignity of the human person and of personality rights, such as the right to parentage. Moreover, the perceived financial nature of the right to parentage, historically linked to the transmission of and integrity of family property within wedlock, has evolved as to become mainly linked to one’s personal status and right to self-identification; the legal certainty of the investigated father, underlined in Ruling 401/11, must not prevail over the fundamental personal rights of the investigated, nor over the public order interest connected with the establishment of parentage.
VIII - The imposition of a burden of diligence upon the investigated father collides with the freedom of the child with regard to the formulation of a personal decision which may evolve in the course of life, namely with regard to the child’s sensitivity and opinion, or the consideration of the interests of his/her own children; the fact that a paternity investigation action was not initiated for a certain amount of time must not invalidate the child’s legitimacy to bring an action at a time where such an action would allow for the fullfilment of his/her interest in the full constitution of his/her personal identity.
XI – On what concerns the arguments of right to privacy and family peace, the Court considered that in the light of the fundamental rights to personal identity and historicity, the scope of protection of the right to private and family life does not protect the interest of the father who engaged in a relationship with reproductive outcomes in not taking legal responsibility. In the current social and legal culture, the State holds the biological parents accountable for the well-being of the child, and has a public order interest in that the biological ties acquire legal relevance in terms of right to parentage and status of the person, even beyond the majority of the children.
XII - The establishment of a deadline for bringing an action of judicial recognition of paternity limits the petitioner’s fundamental rights to personal identity and to found a family, as well as the right to the free development of his/her personality. Furthermore, it does not constitute an adequate, necessary and proportional means to respect the rights of the petitioned father, thereby violating the prohibition of excessive intervention in the fundamental rights of the child. The very personal nature of the rights of a child, which refer to human being’s most private and a need for affection and social insertion, which are most defining of one’s humanity and personality, means that, in balancing these conflicting positions, the rights of the children are, in the axiological hierarchy of the Constitution, where primacy is given to the dignity of the human person, of superior value to the rights of the petitioned father.
XIII – In conclusion, the period limitation set out in Article 1817 (1) of CC amounts to a disproportionate restriction of the fundamental rights to found a family, to personal identity and to the free development of one’s personality, as well as of the right to know one’s biological ancestry and is unconstitutional in breach of Article 36 (1) and Article 26 (1) of the Constitution in conjunction with the principle of proportionality as set out in Article 18 (2) of the Constitution. The principle of the dignity of the human person implies that the investigation of paternity should be actionable at any time, and any temporal limitation for the exercise of these rights is constitutionally illegitimate, irrespective of the concrete duration of the limitation period established.