FIRST SECTION
DECISION
Application no. 33384/22
Gaetano Carlo GIULIANO
against Italy
The European Court of Human Rights (First Section), sitting on 6 December 2022 as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 33384/22) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 July 2022 by an Italian national, Mr Gaetano Carlo Giuliano (“the applicant”), who was born in 1929 and lives in Palazzolo Acreide and was represented by Mr V. Angiolini and Mr S. Invernizzi, lawyers practising in Milan;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns alleged negative inferences drawn by the competent domestic courts from the applicant’s refusal to undergo a DNA test in the context of a paternity claim. The applicant complained that the interference with his right to private life, as guaranteed by Article 8 of the Convention, was unlawful and disproportionate and that it violated the principle of the equality of arms.
2. On 8 October 2015 X instituted an action before the District Court of Syracuse, asking it to declare the applicant to be his biological father. He submitted a letter signed by his mother, Y, in which she declared that the applicant was his biological father.
3. The applicant later refused to undergo the DNA test, which was ordered by the District Court several times. Both the applicant and X submitted a request to call Y as witness. On 30 October 2018 the court dismissed the request that it hear Y, drew inferences from the applicant’s refusal to undergo the DNA test and upheld the paternity claim.
4. On 10 December 2010 the applicant appealed against the judgment before the Court of Appeal of Catania. He complained, among other things, about the negative inferences drawn from his refusal which, in his view, was justified on medical grounds, and about the dismissal of his request to call Y as a witness. He further complained of the violation of his right to physical integrity, on account of the order to undergo a DNA test.
5. On 24 July 2020 the applicant’s appeal was dismissed. The Court of Appeal observed that the applicant’s refusal to undergo a DNA test was sufficient to prove his paternity and that therefore the witness evidence requested was not necessary. Moreover, the Court of Appeal observed that the acknowledgment of paternity had also been based on Y’s letter and that no violation of the applicant’s right to physical integrity had taken place, since the latter was entitled to refuse to undergo the test and ultimately did so.
6. On 14 January 2021 the applicant lodged an appeal on points of law with the Court of Cassation.
7. On 3 March 2022 the Court of Cassation dismissed the applicant’s appeal and upheld the paternity claim on the grounds of the applicant’s refusal to undergo the DNA test and of Y’s letter. The Court of Cassation also observed that, in his appeal on points of law, the applicant had failed to complain about the dismissal of his request to call Y as a witness.
8. Relying on Article 8 of the Convention, the applicant complained that the interference with his right to physical integrity on account of the order to undergo the DNA test was unlawful and disproportionate.
9. Under Article 6 § 1 and Article 8 of the Convention, he further alleged that the domestic authorities’ negative inferences from his refusal to undergo the DNA test and the dismissal of his request to call Y as a witness had violated the principle of the equality of arms and deprived him of an opportunity to defend his interests.
THE COURT’S ASSESSMENT
10. The Court notes from the outset that it is settled case-law that, whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see M.S. v. Ukraine, no. 2091/13, § 70, 11 July 2017). Accordingly, since it is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), the Court finds it appropriate to examine both of the applicant’s complaints solely under Article 8 of the Convention.
11. It further acknowledges that the recognition by the domestic courts of a family tie between X and the applicant on the basis of, among other things, the applicant’s refusal to undergo the DNA test, amounts to an interference with his right to respect for his private life as guaranteed by that provision (see Canonne v. France (dec.), no. 22037/13, § 26, 2 June 2015).
12. The applicant complained that this interference was not in accordance with the law as, in his view, there was no legal basis in the Italian legal system for ordering a DNA test in his case.
13. The Court observes however that, pursuant to Article 269 § 2 of the Civil Code, proof of paternity can be established “by any means”. In addition, Article 61 of the Code of Civil Procedure allows civil courts, where necessary, to appoint experts. Under such provisions, experts can be appointed to administer DNA tests in order to ascertain paternity (see, for example, the Court of Cassation’s judgments no. 14462 of 29 May 2008 and no. 32308 of 13 December 2018). Moreover, although the putative father remains free not to undergo the test, negative inferences can be drawn from his refusal pursuant to Article 116 § 2 of the Code of Civil Procedure (see the Court of Cassation’s judgments no. 12198 of 17 July 2012 and no. 20235 of 21 May 2012).
14. In the light of the above, the Court considers that, in the present case, the interference was grounded on a clear, well-established and foreseeable case-law interpretation of the domestic provisions cited and was thus in accordance with the law for the purposes of Article 8 § 2 of the Convention.
15. The applicant further complained that the acknowledgment of a parental tie with X on the basis of his refusal to undertake a DNA test and the dismissal of his request to call Y as a witness amounted to a breach of his right to private life protected by Article 8.
16. The Court first notes that a DNA test is the scientific method available today for accurately determining paternity, and its probative value substantially outweighs any other evidence presented by parties to prove or disprove biological paternity (Mifsud v. Malta, no. 62257/15, § 70, 29 January 2019). It should also be noted that the Court has already found violations of Article 8 in cases where the domestic system failed to provide for measures to compel a putative parent to comply with a court order to undergo genetic testing or governing the consequences of such non-compliance (ibid. § 57, and the case-law cited therein).
17. The Court has also observed that what is of importance under Article 8 of the Convention is that the individual ordered to undergo a DNA test is given an opportunity to be personally present in the court’s proceedings, to submit evidence and cross-examine witnesses and is involved in the decision making process, seen as a whole, to a degree sufficient to be provided with the requisite protection of his or her interests (see Mifsud, cited above, § 70).
18. In this connection, the Court notes that the applicant was fully involved in the domestic proceedings as he argued his case before three judicial instances. However, it observes that in his appeal on points of law, the applicant failed to challenge the dismissal of his request to call Y as a witness (see paragraph 7 above, as well as the Court of Cassation’s orders no. 5654 of 7 March 2017; no. 27415 of 29 October 2018; and no. 16214 of 17 June 2019; and the Court of Cassation’s judgment no. 16435 of 10 June 2021).
19. Even assuming that the applicant duly exhausted the domestic remedies available to him, the Court notes that, in addition to his refusal to undergo the DNA test, the decision to uphold the paternity claim was based on Y’s letter. Therefore, the negative inferences drawn from the applicant’s refusal were not the sole evidence against him (see Canonne, cited above, § 33).
20. Furthermore, it should be pointed out that putative sons and daughters have a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of their personal identity (see Mifsud, cited above, §§ 57-58, and the case-law references cited therein).
21. In the light of the above, the Court concludes that the present application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 January 2023.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President