Information Note on the Court’s case-law No. 119
May 2009
Menéndez García v. Spain - 21046/07
Decision 5.5.2009 [Section III]
Article 8
Article 8-1
Respect for private life
Refusal of request by applicant to have her deceased father recognised as the son of a man she alleged was her deceased grandfather:inadmissible
The applicant submitted to the Court of First Instance an application to have her late father recognised as the illegitimate child of V.T.A., who was also deceased. For that purpose she alleged that her father’s paternity had been established by reputation and adduced evidence. She also applied for a DNA test on the body of V.T.A. in order to clarify the alleged paternity. She lastly sought to be recognised as the granddaughter of V.T.A. The court rejected the application on the ground that she had nolegitimate entitlement, explaining that neither the legislation in force at the time of her father’s death or of V.T.A.’s death, nor that in force at the time the application was lodged, afforded her such a possibility. Moreover, it regarded as unproven the claim that her father’s paternity had been established by reputation, since it had been based exclusively on rumours. The applicant lodged an appeal with the Audiencia Provincial, which dismissed it on the ground that she had not been legitimately entitled to bring an action to establish the paternity in question. Under the applicable law, such actions were available only to the child of the putative father and that child’s heirs had such standing only if the child had died as a minor or had no legal capacity. Lastly, there was a five-year time-limit for the lodging of such an application. As regards the applicant’s request to be acknowledged as V.T.A.’s granddaughter, the judgment indicated that it had to be rejected as her father’s paternity had not been established. An appeal on points of law by the applicant was dismissed. The Court of Cassation upheld the decisions of the courts below and confirmed that an acknowledgment of “grand paternity” was subject to the prior acknowledgment of the father’s paternity, which in the present case had not been established. The applicant lodged an amparo appeal with the Constitutional Court but was unsuccessful. That court first found that the decisions dismissing the applicant’s action to establish her father’s paternity were sufficiently reasoned and devoid of arbitrariness. Secondly, it found that the action for acknowledgment of “grand paternity” could not be upheld since there had been no prior acknowledgment of the father’s paternity.
Inadmissible under Article 6 § 1: The applicant had confined herself to expressing her disagreement with the decisions of the domestic courts, which had found that she lacked locus standi to apply for an acknowledgement of descent under the applicable law, namely the law which had been in force at the time of the deaths of V.T.A. and of the applicant’s father. However, the domestic courts had given sufficiently reasoned decisions that could not be regarded as arbitrary: manifestly ill-founded.
Inadmissible under Article 8: The finding by the domestic courts that the applicant lacked locus standi and, as a result, their rejection of her application for acknowledgment of “grand paternity”, had had an impact on her private life. Article 8 was therefore applicable in the present case. The interest in knowing one’s identity varied depending on the degree of kinship in the ascending line. Whilst it was appropriate to regard first-degree ascendants, namely parents, as being of the highest importance, the weight of such interest in relation to other interests diminished as the degree of kinship became more distant. It was for each State to organise its domestic legal system, using its margin of appreciation, so that the various interests were given due weight in each case. One of the means was the regulation of the conditions for granting locus standi in actions to establish descent. In the present case, neither the refusal to grant locus standi to the applicant for the purpose of establishing her father’s paternity, nor the absence of a direct action to establish that relationship, could be regarded as disproportionate or arbitrary in the light of the interests involved and the reduced impact of that relationship for the applicant’s private life. First, both the applicant’s father and V.T.A. were already dead at the time she brought her action. Since neither of them had expressed any intention of having the relationship established, the Court had doubts as to whether they would really have wished to take such steps and it also took account of the restrictions imposed by the applicable law in the present case on the bringing of an action to establish paternity by anyone other than the putative child. Accordingly, the applicant had not been able to act on behalf of her father and she could not be certain that he would have wished to have V.T.A. established as his biological father. Secondly, the applicant’s right to respect for her private life was concerned in so far as she had sought to be acknowledged as V.T.A.’s granddaughter. Whilst the Court did not doubt the importance of knowing the identity of one’s grandfather, it could not find that this had the same impact on private life as the right to know one’s father, which was not the issue in the present case. Therefore, when balancing the various interests at stake, that of the applicant had to remain subordinate to the protection of the rights of V.T.A.’s family and to the principle of legal certainty: manifestly ill-founded.
Inadmissible under Article 13: The applicant had had the opportunity to raise the arguments that she considered necessary in support of her claims before a number of courts and, in the last instance, before the Constitutional Court by means of an amparo appeal: manifestly ill-founded.
See Jäggi v Switzerland, no. 58757/00, 13 July 2006, Information Note no. 88.
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This summary by the Registry does not bind the Court.
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