ESTATE OF KRESTEN FILTENBORG MORTENSEN v. DENMARK
Inadmissible
Snejana Botoucharova
The Danish national, Mr Kresten Filtenborg Mortensen, (“KFM”), was born in 1926 and died on 10 February 1999. His estate is the applicant in the present case, represented by his son, Mr Niels Filtenborg Mortensen, (“N”), who was represented before the Court by Mr Tyge Trier, a lawyer practising in Frederiksberg. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their co-Agent, Mrs Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At the time of KFM’s death, he was divorced and had one legitimate son, N, born on 24 August 1951. During his marriage, KFM had a relationship with a married woman, J, who gave birth to two sons, B and P, in 1956 and 1957 respectively. From 1963 until her death in 1994, J lived with KFM, who had by then divorced his first wife. Following KFM’s death in February 1999, B and P requested the City Court of Holstebro (Retten i Holstebro), under the Administration of Justice Act (Retsplejeloven), to establish their paternity, since in their view their father was KFM and not the man to whom their mother had been married. At a hearing before the City Court on 8 November 1999, B and P testified that they had been told by their mother, J, that KFM was their biological father as opposed to their legal father. Their legal father testified that he had divorced J because he suspected her of adultery and that J’s family had told him that he was not the father of B and P. N testified that KFM had never said anything to him about having children with J and that when J died in 1994, KMF had remarked that things were now settled “with J’s family”. By decision of 10 November 1999 the City Court decided, in view of the evidence adduced, that it could not be ruled out that KFM was the biological father of B and P, and that the estate of KFM should therefore be a party to the paternity proceedings in accordance with section 456 (k) of the Administration of Justice Act. Moreover, in accordance with the said provision, forensic genetic tests should be carried out, as they might be expected to produce evidence of considerable weight for or against KFM’s being the biological father of B and P. KFM’s estate appealed against both decisions before the High Court of Western Denmark (Vestre Landsret), which found against it on 16 March 2000. Accordingly, blood samples were taken from B and P, their legal father, two of J’s siblings, and a sister of KFM. N did not wish to participate in the genetic tests. Subsequently, on the basis of the samples provided, the Forensic Genetics Institute (Retsgenetisk Institut) found it established that B and P’s legal father, with a probability that exceeded 99.99 %, was not their biological father. Moreover, it found that the results suggested that KFM, rather than some random man, was B and P’s biological father, with probability ratios of 9:1 and 3:1 respectively. Eight testimonies were submitted before the City Court by KFM’s siblings, colleagues and acquaintances, all of whom endorsed the notion that KFM was B and P’s father. On 5 June 2000 B died. On 28 November 2001 the Forensic Genetics Institute answered two questions put by the City Court as to the likelihood of obtaining valid DNA results from the tissue of a deceased person. On 5 December 2001 the City Court decided, in accordance with section 456(k) of the Administration of Justice Act, that KFM’s body was to be exhumed for the purpose of taking DNA samples, as such samples were assumed to be of significant, and probably decisive, importance in establishing paternity, and were the only remaining option. KFM’s estate appealed against the decision before the High Court of Western Denmark which, by decision of 21 February 2002, amended the City Court’s decision. It stated that the estate of the deceased was party to the paternity suit and that it was therefore obliged, pursuant to section 456 (k) of the Administration of Justice Act, to participate in tests which entailed providing blood samples or similar, if the court decided that such tests were necessary. Furthermore, it followed from section 456 (l) of the Act that the court could decide to use the various measures mentioned in Section 178 of the Act to compel parties to participate in such tests if they refused to do so voluntarily. The High Court found, however, that in paternity cases neither the Administration of Justice Act nor any other provision of Danish law provided a basis for taking body samples by the use of physical force, as opposed to measures to compel living persons to give samples. Hence, the High Court found that tests of the kind ordered by the City Court constituted interference with the sanctity of the grave and that such interference was comparable with the measures to compel living persons to give samples. The High Court concluded that such interference could not be effected by force for the purpose of obtaining evidence in a paternity suit without an explicit legal basis, which the High Court found did not exist in domestic law. Accordingly, the High Court refused to order the exhumation of KFM and the taking of samples from his corpse for use in the paternity suit. P was granted leave to appeal against the judgment before the Supreme Court (Højesteret), which on 4 September 2002 permitted the taking of biological material from KFM’s corpse. In reaching its decision, the Supreme Court stated as follows: “By decision of 16 March 2000 the High Court of Western Denmark upheld the City Court’s decision that the estate of [KFM] was a party to the paternity suit. That decision is not under review by the Supreme Court in the present case. Since [P] was born in 1957, it is the provisions inserted into the Administration of Justice Act by Act No. 135 of 7 May 1937 in chapter 42 (a) concerning the proceedings in paternity suits that are applicable, pursuant to the provisions on the entry into force of the Act contained in section 2(1) of Act No. 201 of 18 May 1960 amending the Administration of Justice Act. The provisions of the said Act concerning the court’s duty to elucidate the case which are relevant in the present case are broadly similar to the provisions of the Administration of Justice Act (chapter 42 (a)) currently in force. Hence, if the court considers forensic genetic testing of the parties to the case to be necessary, it may order such tests under section 456 (l) of the 1937 Act, sections 456 (k) and 456 (l) of the 1960 Act and section 456 (h) (7) of the current Act. The reference therein to the provisions of the Administration of Justice Act on measures to require witnesses to comply must be understood as specifying the measures which can be taken against a party who is alive, and are therefore without relevance if the test is to be carried out on a party who is deceased.” The majority of the Supreme Court (three judges) went on to state: “The fact that the Administration of Justice Act does not contain any specific rules on forensic genetic testing of deceased persons should not lead to the existing rules, according to which [in a paternity case] the court may decide to compel the parties to undergo genetic testing, being narrowly construed to mean that the [existing] legal basis does not cover testing of deceased persons. Pursuant to section 16 (1) of the Act on Cornoner’s Inquests, Post-Mortem Examinations and Transplantation, etc. (Lov om ligsyn, obduktion og transplantation m.v.), interference with a corpse, other than the kind mentioned in chapter 3 of the Act (on post-mortem examinations) and in chapter 4 (on transplantation), may be carried out only if the deceased person, having turned 18 years old, consented thereto in writing. According to the preparatory notes (Folketingstidende 1989/1990, tillæg A, spalte 3814), the above provision concerns interference with a scientific or educational purpose which is not carried out in connection with a post-mortem examination. It is not mentioned, however, whether the provision applies to other forensic tests under chapter 42 (a) of the Administration of Justice Act [that is, to paternity cases] or to other civil proceedings involving the estate or a surviving relative in which it becomes necessary to carry out forensic tests on a deceased person in order to gather evidence. In these circumstances we consider that section 16 of the Act on Coroner’s Inquests, Post-Mortem Examinations and Transplantation does not restrict the legal basis provided by chapter 42 (a) of the Administration of Justice Act [to the effect] that, if deemed necessary, the court may decide that forensic genetic tests should be carried out, even on a deceased party. In its assessment, however, having regard to the principle of proportionality, the court must balance the extent of such interference with the need to elucidate the particular case. [N] having refused to participate in forensic genetic testing, tests have been carried out on all possible living persons [in the case]. In view of the fact that these tests, and the information submitted in the case, have confirmed [P’s] allegation that [KFM] is his father, and in the light of the content of the Forensic Genetics Institute’s letter of 18 November 2001, we uphold the City Court’s decision of 5 December 2001 authorising the taking of tissue samples from the deceased [KFM].” The minority of the Supreme Court (two judges) found: “Without the existence of clear support in section 456 (g) and 456 (l) of the Administration of Justice Act [No. 135 of 7 May 1937, in force at the relevant time, when P was born] or the preparatory notes, we find it insufficiently established that these provisions confer authority to take blood samples or carry out other tests on the deceased. In our opinion it is a matter for the legislator to decide whether it should be possible to carry out such testing, and in the affirmative to indicate the specific conditions governing it. Accordingly, we vote in favour of upholding the High Court’s decision.” Following the Supreme Court’s decision, KFM’s corpse was exhumed and tissue samples were taken. However, the Forensic Genetics Institute was unable to make a typological classification of the samples, apparently owing to the time that had elapsed since KFM’s burial. On 19 January 2004 the City Court of Holstebro delivered the following judgment: “The forensic genetic tests carried out and the content of the written statements corroborate the claim that [KFM] is the father of [B and P]. The court does not find, however, that the test results and the statements can be given such weight as to prove with sufficient certainty that [KFM] had intercourse with the mother at the time of conception. Therefore, the court finds in favour of the defendant [the estate of KFM].” Accordingly, N, as the only legitimate son of KFM and sole heir, inherited the estate. The Administration of Justice Act was amended by Act No. 135 of 7 May 1937 when a special chapter 42 (a) on paternity suits was inserted. The relevant provisions of this chapter read as follows: “The court shall ensure of its own motion that the [paternity] case is elucidated. Anyone who, according to information which emerges during the proceedings, could have made the woman in question pregnant shall be made a party to the case by the court. The court itself shall decide on the calling of parties and witnesses to give testimony, and the obtaining of expert statements and other evidence. ...” If, in order to elucidate the case, the court finds it necessary to require blood-type determination of the mother, the child or the respondent(s), it shall ensure that the necessary tests are carried out. When the circumstances strongly support such action and it can be taken without significant disturbance to the person in question, the court may also take steps to have other tests carried out on these persons, who shall be required to present themselves for tests, provide blood samples, etc. If they refuse, the measures in sections 177 and 189 shall be applicable.” The above-mentioned provisions of the Administration of Justice Act were amended by Act No. 201 of 18 May 1960. This Act contains the following section 2 concerning scope and transitional period: “This Act shall enter into force on 1 January 1961. It shall not apply to the Faroe Islands or Greenland. The Act shall apply only to cases concerning children born after its entry into force [...].” Sections 456 (k) and 456 (l) of the current Administration of Justice Act read as follows: “If, in order to elucidate the case, the court finds it necessary to require blood-type determination or other tests to be carried out on the parties, it shall ensure that such tests are carried out. The persons concerned shall be required to undergo the tests, give blood samples, etc.” “The measures set out in section 178 shall be applicable with regard to the parties’ obligations set out in the present chapter.” The measures to ensure compliance referred to in section 456 (l) above of the Administration of Justice Act as amended in 1937 (sections 177 and 189) are broadly similar to those found in the current Administration of Justice Act, section 178, which reads as follows: “If for no legitimate reason a witness fails to appear ... or for no legitimate reason refuses to testify, the court may impose a fine on the witness fetch the witness with the assistance of the police order the witness to reimburse costs occasioned by him or her impose a daily fine, for a period not exceeding six months in the same case, continuously or in total impose police detention or impose on the witness the measures prescribed in section 765, until the person appears before the court to give testimony or until the witness agrees to testify. Such measures may not be applied for a period of more than six months in the same case, continuously or in total. Section 16 (1) of the Act on Coroner’s Inquests, Post-Mortem Examinations and Transplantation, etc., reads as follows: “Interference with a corpse, other than that mentioned in chapters 3 and 4, may take place only if the deceased person, having turned 18 years old, gave his or her consent in writing.”