Information Note on the Court’s case-law 225
January 2019
Mifsud v. Malta - 62257/15
Judgment 29.1.2019 [Section III]
Article 8
Article 8-1
Respect for private life
Order to provide genetic sample in context of paternity proceedings: no violation
Facts – The applicant complained about the Maltese law which made it mandatory to provide a genetic sample in paternity proceedings, and that such an order had been imposed on him, contrary to his will.
Law – Article 8: A DNA test was the scientific method available for accurately determining paternity of a child, and its probative value substantially outweighed any other evidence presented by parties to prove or disprove biological paternity. That in itself did not undermine the rights of the parties to the proceedings; what was of importance was that they had been given an opportunity personally to participate in the court proceedings. In the criminal sphere, Article 8 did not as such prohibit recourse to a medical procedure in defiance of the will of a suspect, or in defiance of the will of a witness, in order to obtain evidence. What was of paramount importance was that the measure had been in accordance with the relevant Convention requirements. Thus, such methods, including in the civil sphere, were not in themselves contrary to the rule of law and natural justice. In the assessment of whether the measure had been in accordance with the relevant Convention requirements, the legitimate aim was of particular importance. In the applicant’s case, the impugned action had been aimed at fulfilling the State’s positive obligations arising under Article 8 vis-à-vis the applicant’s putative daughter.
On paper the measure appeared to be mandatory; however, the Court was not convinced that in practice a court would order such a test without regard to any other consideration, such as, for example, that a prima facie case had been made out. Similarly, once an order had been made, the individual concerned could appeal against such an order. In the applicant’s case, the civil court had refrained from ordering the test when it had been requested to do so. Instead it had held a hearing to examine the applicant’s objections in that respect. After hearing submissions, it considered that the applicant’s concerns were neither frivolous nor vexatious and had referred the applicant’s concerns to the constitutional jurisdictions, which, at two instances, had proceeded with an assessment of the interests at stake. They found that the interests of the applicant’s putative daughter in determining who her father was outweighed those of the applicant, in the circumstances of the case. There was nothing arbitrary in those decisions, which had been taken in the light of the Court’s case-law. It was only after fully fledged constitutional proceedings undertaken at the applicant’s request that the test was ordered. That had been an avenue open to the applicant, and of which he had availed himself in full knowledge of his procedural rights and available safeguards at the domestic level. It could not be said that that procedure had not served the purpose of examining the interests at stake and to determine whether ordering the test would have been in breach of the applicant’s Article 8 rights. It followed that the order to undergo the test had not been made on the basis of its mandatory nature.
The decision-making process, seen as a whole, had been fair and had provided the applicant with the requisite protection of his interests safeguarded by Article 8. By ordering the applicant to undergo a DNA test, after having carried out the requisite balancing exercise of the interests at stake, in judicial proceedings in which the applicant participated via counsel of his choice and in which his rights of defence were respected on a par with those of his adversary, the domestic courts had struck a fair balance between the interests of the applicant’s putative daughter to have paternity established and that of the applicant not to undergo the DNA test.
Conclusion: no violation (unanimously).
(See also Mikulić v. Croatia, 53176/99, 7 February 2002, Information Note 39; and Tsvetelin Petkov v. Bulgaria, 2641/06, 15 July 2014, Information Note 176)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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