FOURTH SECTION
DECISION
Application no. 53442/20
Maria BORGES COUTINHO VILAÇA DE SOUSA
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 28 November 2023 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 53442/20) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 November 2020 by a Portuguese national, Ms Maria Borges Coutinho Vilaça de Sousa, who was born in 1979, lives in Cascais (“the applicant”) and was represented by Ms A. Morais Cardoso, a lawyer practising in Lisbon;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant was born on 9 November 1979. She was subsequently registered as the daughter of M.C. (her mother) and N.S (father).
2. On 22 April 2009 the applicant allegedly found out about the possibility that M.M., who had passed away in October 1979, had been her biological father.
3. On 14 June 2016 the applicant instituted an action for the recognition of paternity before the Family Court of Cascais against M.M.’s descendants.
4. On 6 December 2017 the Family Court of Cascais held that the applicant’s action was belated pursuant to Article 1817 of the Civil Code, which establishes a 10-year time-limit from the coming of age, or a 3-year time-limit from the moment the applicant found out about the alleged paternity, to institute an action for the recognition of paternity.
5. On 5 February 2018 the applicant lodged an appeal with the Lisbon Court of Appeal in which she raised the unconstitutionality of Article 1817 of the Civil Code. On 17 May 2018 the Lisbon Court of Appeal upheld the lower court’s decision.
6. The applicant appealed against this decision to the Supreme Court. By a decision of 14 May 2019 the latter held that Article 1817 was unconstitutional.
7. The defendants in the case appealed against this decision to the Constitutional Court. By a summary decision of 11 February 2020 the Constitutional Court, referring to previous Constitutional Court judgments, held that Article 1817 of the Civil Code was not unconstitutional and reinstated the Family Court of Cascais’ decision (see paragraph 4 above). By a judgment of 29 April 2020, following an appeal by the applicant, this decision was confirmed by the Constitutional Court, by a three-judge bench. On 8 May 2020 this judgment was served on the applicant.
8. Relying on Article 79-D of the Law of the Constitutional Court, the applicant lodged a further appeal against this decision with the plenary of the Constitutional Court. On 29 May 2020, the applicant’s appeal was rejected on the grounds that the case-law relied upon by the applicant referred to the previous version of Article 1817 of the Civil Code, prior to the amendment of 2009 which fixed the statutory limitation at issue (see paragraph 4 above).
9. Relying on Article 8 of the Convention, the applicant complains that the dismissal – on account of the statutory limitation periods – of the paternity proceedings brought by her was in breach of that Article.
THE COURT’S ASSESSMENT
10. The Court notes at the outset that by a judgment of 29 April 2020, served on the applicant on 8 May 2020, the Constitutional Court, referring to its previous judgments, held that Article 1817 of the Civil Code was not unconstitutional and reinstated the Family Court of Cascais’ decision declaring the applicant’s action belated pursuant to that provision (see paragraphs 4 and 7 above). The applicant lodged a further appeal against this decision with the plenary of the Constitutional Court, which was clearly inadmissible (see paragraph 8 above) and thus cannot be taken into account for the calculation of the six-month period (see Jorge Nina and others v. Portugal (dec), no. 35998/97 3 December 1997; Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V). Hence in the present case the final domestic decision within the meaning of Article 35 § 1 of the Convention was the judgment given by the Constitutional Court on 29 April 2020, served on the applicant on 8 May 2020 (see paragraph 8 above). Consequently, the six-month time limit laid down in Article 35 § 1 of the Convention as applicable before the entry into force of Article 4 of Protocol No. 15 started running from the last-mentioned date and would normally have expired on 8 November 2020. However, the application was lodged within the three‑month extension to that time‑limit, introduced by the decision of the President of the Court in 2020 as a consequence of widespread lockdowns on account of the SARS‑CoV-2 coronavirus pandemic, applying to time-limits that started running or were due to expire between 16 March and 15 June 2020. This extension of the time-limit was later confirmed by judicial decision (see Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, § 49 and §§ 56-58, 1 March 2022). The present application, introduced on 25 November 2020 was therefore made in good time.
11. The Court has held on previous occasions that the circumstances of birth form part of private life, guaranteed by Article 8 of the Convention (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003‑III, and Phinikaridou v. Cyprus, no. 23890/02, § 45, 20 December 2007) and that everyone should be able to establish details of their identity as individual human beings. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others v. Romania, nos. 25057/11 and 2 others, § 83, 19 July 2016).
12. Nevertheless, the Court has held that the introduction of a time-limit for instituting paternity proceedings can be justified by the desire to ensure legal certainty and thus is not per se incompatible with the Convention. A fair balance needs to be struck between the child who has the right to know his or her identity and the putative father’s interest in being protected from allegations concerning circumstances that date back many years (see Phinikaridou, cited above, §§ 52-53; Backlund v. Finland, no. 36498/05, §§ 45-46, 6 July 2010; Silva and Mondim Correia v. Portugal, nos. 72105/14 and 20415/15, § 57, 3 October 2017; and Çapın v. Turkey, no. 44690/09, § 57, 15 October 2019).
13. Turning to the present case, the Court considers it established that the applicant’s inability to bring a civil claim for judicial recognition of paternity (see paragraphs 4 to 7 above) amounted to an interference with her right to respect for her private and family life within the meaning of Article 8 (see Silva and Mondim Correia, cited above, § 59).
14. The Court notes that Article 1817 § 1 of the CC provides for a ten‑year limitation period, after the person concerned has attained the age of majority or a 3-year time-limit from the moment the applicant found out about the alleged paternity, within which he or she may institute paternity proceedings. By a summary decision of 11 February 2020 the Constitutional Court, referring to previous Constitutional Court judgments, held that Article 1817 of the Civil Code was not unconstitutional and reinstated the Family Court of Cascais’ decision. By a judgment of 29 April 2020, following an appeal of the applicant, this decision was confirmed by the Constitutional Court, by a three-judge bench (see paragraphs 4 to 7 above). Therefore, the Court considers that the interference was “in accordance with the law” (see Silva and Mondim Correia, cited above, §§ 61‑62). It is also satisfied that the interference in question pursued a legitimate aim (ibid., § 63).
15. It remains to be determined whether the nature of the time-limits in question, and/or the manner in which they were applied, was compatible with the Convention.
16. The Court has already analysed the provision in issue and stated that the time-limit provided for by Portuguese law is not a rigid one (ibid., § 65). It also notes that, since 2011, the Constitutional Court has taken the view that the time-limit is not incompatible with the Constitution because it is reasonable to allow an individual a sufficient amount of time, having reached the age of majority, to decide whether or not to bring paternity proceedings while at the same time safeguarding legal certainty in respect of the putative father and his family (ibid., § 66).
17. In the present case, similarly to Silva and Mondim Correia (cited above, §§ 67-69), the Court notes that the applicant had reached the age of 36 by the time she instituted a civil claim for the recognition of paternity against the heirs of M.M., who had passed away in October 1979, and this was 7 years after allegedly finding out about the possibility of M.M. being her biological father (see paragraphs 1 to 3 above). The applicant has thus demonstrated a lack of diligence in instituting such proceedings, by taking many years after finding out as an adult, at the age of 29, about the possibility of M.M. being her biological father to seek to have her paternity legally established. The Court also observes that the applicant did not demonstrate that there were circumstances which prevented her from acting sooner.
18. In accordance with the principle of subsidiarity, having regard to all the elements described above, the non‑absolute nature of Article 1817 of the CC and the case-law of the Portuguese Constitutional Court, the Court concludes that the application of the time-limits for instituting paternity proceedings was supported by relevant and sufficient reasons and that it was not disproportionate in the light of all the circumstances of the case.
19. Therefore, it did not affect the substance of the right to respect for private and family life enshrined in Article 8 of the Convention.
20. It follows that the application must be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 January 2024.
Ilse Freiwirth Tim Eicke
Deputy Registrar President