CASE OF SILVA AND MONDIM CORREIA v. PORTUGAL
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. The first applicant was born in 1944 and lives in Oliveira de Azeméis. The second applicant was born in 1970 and lives in Vila Real. 6. The first applicant was born out of wedlock. His mother always considered T.S. to be his father and from an early age he has been in touch with T.S.’s family, who have always treated him as a relative. 7. On 26 March 2012 the first applicant instituted an action for recognition of paternity before the Vale de Cambra Court. T.S. objected and argued that the applicant’s claim was time-barred under Article 1817 § 1 of the Civil Code. Mr Silva responded that this provision was unconstitutional because it violated Articles 18 §§ 2 and 3 and 26 § 1 of the Constitution. 8. On 26 June 2012 the judge gave directions (despacho saneador) setting out those matters that had already been established and those that remained outstanding. In addition, the judge dismissed T.S.’s objection that the applicant’s claim was time-barred, holding that the time-limit set by Article 1817 § 1 was unconstitutional insofar as the limitation thus imposed on the possibility of investigating an individual’s paternity at all times constituted an unjustified and disproportionate restriction of the right of a son to know who his father was. It also found that the exercise of a person’s right to know his parentage could not be subject to temporal barriers and could only be restricted in cases where such exercise of the right would constitute an abuse. The fact that the plaintiff had only instituted the proceedings more than fifty years later could not, in itself, be considered to constitute an abuse. 9. On an unknown date T.S. challenged the judge’s decision of 26 June 2012 ‒ in the part in which it considered Article 1817 § 1 to be incompatible with constitutional provisions ‒ before the Porto Court of Appeal. On an unknown date the applicant submitted his observations in reply (contraalegações), arguing that the decision should be upheld and the proceedings should not be deemed time-barred. 10. Meanwhile, on an unknown date, at the request of the first applicant, the Vale de Cambra Court ordered DNA tests which established that T.S. was the applicant’s father. In the light of that result the Vale de Cambra Court asked the parties about the usefulness of continuing the proceedings. T.S. did not acknowledge paternity and requested the Vale de Cambra Court to continue the proceedings. 11. On 9 April 2013 the Porto Court of Appeal dismissed T.S.’s challenge. It held that Article 1817 § 1 was unconstitutional and that the right to seek judicial recognition of paternity should not be subject to a time-limit. 12. T.S. appealed to the Supreme Court of Justice. 13. On 14 January 2014 the Supreme Court dismissed T.S.’s appeal and upheld the decision of the Porto Court of Appeal in its entirety. 14. On an unknown date T.S. appealed to the Constitutional Court, to which he submitted the question of the constitutionality of Article 1817 § 1 of the Civil Code, pursuant to Article 70 § 1 (a) of the Law of the Constitutional Court. 15. On 10 March 2014 the Constitutional Court held, with reference to its previous ruling no. 401/2011, that Article 1817 § 1 complied with the relevant provisions of the Constitution. 16. The first applicant appealed to the Conference of the Constitutional Court (Conferência do Tribunal Constitucional), claiming that Article 1817 § 1 was unconstitutional. On 7 May 2014 the Conference of the Constitutional Court upheld the previous decision of the Constitutional Court and dismissed the applicant’s claim. 17. As a result of the Constitutional Court’s decisions, the Supreme Court of Justice dismissed the applicant’s action on 9 July 2014. 18. The second applicant was born out of wedlock. His mother always considered A.M. to be his father. 19. On 31 March 2014 he brought paternity proceedings before the Vila Real Court and contended that he had always known that A.M. was his father. A.M. objected, arguing that the claim was time-barred. 20. On 15 June 2013 the Vila Real Court dismissed the second applicant’s action, holding that it was time-barred for being lodged outside the ten-year time-limit established under Article 1817 § 1 of the Civil Code. In addition, it noted that the second applicant had not argued that there were any factors justifying the addition of a further three years pursuant to Article 1817 §§ 2 and 3 of the Civil Code. 21. On 5 September 2013 the second applicant appealed to the Porto Court of Appeal, challenging the judgment of the Vila Real Court. He argued that the time-limit established under Article 1817 § 1 of the Civil Code for the institution of paternity proceedings was not compatible with the Constitution and that the right to one’s identity should prevail over the rights of the alleged parent. 22. On 10 December 2013 the Porto Court of Appeal upheld the firstinstance judgment, finding that Article 1817 § 1 of the Civil Code was not incompatible with constitutional provisions, pursuant to Ruling no. 401/2011 of the Constitutional Court. One of the judges dissented, expressing the view that the protection afforded by the Constitution to the fundamental right to personal identity required that the possibility of investigating one’s biological identity should not be subject to a timelimit. 23. On 28 January 2014 the second applicant challenged the decision of the Porto Court of Appeal before the Supreme Court of Justice and asked it to rule that the referred time-limit was unconstitutional. 24. By a judgment of 27 May 2014 the Supreme Court of Justice quashed the judgment of the Porto Court of Appeal and held that the tenyear time-limit established under Article 1817 § 1 of the Civil Code was unconstitutional. 25. On an unknown date A.M. lodged a constitutional appeal before the Constitutional Court, which by a summary decision of 25 September 2014 ruled that, with reference to its previous ruling no. 401/2011, the provision was constitutional and ordered that the judgment of the Supreme Court be modified accordingly. 26. The second applicant appealed to the Conference of the Constitutional Court. On 28 October 2014 the Conference upheld the previous decision. 27. Following the Constitutional Court decisions, the Supreme Court of Justice dismissed the second applicant’s action on 13 January 2015.