Information Note on the Court’s case-law No. 82
January 2006
Mizzi v. Malta - 26111/02
Judgment 12.1.2006 [Section I]
Article 8
Article 8-1
Respect for private life
Impossibility to challenge in court the legal presumption of paternity: violation
Article 6
Civil proceedings
Article 6-1
Access to court
Impossibility of introducing an action for disavowal of paternity: violation
Facts: In 1966, the applicant’s wife X became pregnant. The following year, the applicant and X separated and stopped living together and, X gave birth to a daughter, Y. The applicant was automatically considered to be Y’s father under Maltese law and was registered as her natural father. Following a DNA test which, according to the applicant, established that he was not Y’s father, the applicant tried unsuccessfully to bring civil proceedings to repudiate his paternity of Y. According to the Maltese Civil Code, a husband could challenge the paternity of a child conceived in wedlock if he could prove both the adultery of his wife and that the birth had been concealed from him. This latter condition was dropped when the law was amended in 1993 and a time-limit of six months from the day of the child’s birth was set as the cut off point for introducing such proceedings. In 1997 the Civil Court accepted the applicant’s request for a declaration that, notwithstanding the provisions of the Civil Code, he had a right to proceed with a paternity action and found that there had been a violation of Article 8 of the European Convention on Human Rights. That judgment was subsequently revoked by the Constitutional Court.
Law: Article 6 (right to a court) – The applicant’s allegations that he was not the biological father of Y were not manifestly devoid of substance. It could therefore be considered that the right to deny paternity claimed by the applicant was arguable and that the dispute he wished to bring was genuine and serious. Thus, Article 6 was applicable to the case. At the time of Y’s birth, any action which the applicant could have brought in order to deny paternity would have had little prospects of success as he would have been unable to prove any of the elements required by the Civil Code in force at the time. After the 1993 amendments, a time-limit precluded a possible action before the courts by the applicant. While the applicant could still file an application before the Civil Court, a degree of access to a court limited to the right to ask a preliminary question could not be considered sufficient to secure the applicant’s “right to a court”. Moreover, the Civil Court’s favourable decision was revoked by the Constitutional Court. This, coupled with the wording of the relevant domestic provisions, deprived the applicant of the possibility of obtaining a judicial determination of his claim. The Court accepted that under certain circumstances, the institution of time-limits for the introduction of a paternity action might serve the interests of legal certainty and the interests of the children. However, the application of the rules in question should not have prevented litigants from making use of an available remedy. The practical impossibility for the applicant to deny his paternity from the day Y was born until the present day impaired, in essence, his right of access to a court. The domestic courts had failed to strike a fair balance between the applicant’s legitimate interest of having a judicial ruling over his presumed paternity and the protection of legal certainty and of the interests of the other people involved in his case. The interference thus imposed an excessive burden on the applicant.
Conclusion: violation (unanimously).
Article 8 – In the present case the applicant sought by means of judicial proceedings to rebut the legal presumption of his paternity on the basis of biological evidence. The Court’s task was to examine whether the respondent State, in handling the applicant’s paternity action, had complied with its positive obligations under this Article. The applicant had never had the possibility of having the results of his daughter’s blood test examined by a tribunal. It was only after the 1993 amendments that the applicant would have had the right to contest paternity on the basis of scientific evidence and of proof of adultery, had it been possible for him to lodge the action within six months of Y’s birth. However, the only means of redress open to the applicant to obtain the reopening of the time-limit was to apply to the Civil Court. Had the Civil Court and the Constitutional Court accepted his request, they would have adequately secured the interests of the applicant, who had legitimate reasons to believe that Y might not be his daughter and wished to challenge in court the legal presumption of his paternity. The Court was not convinced that such a radical restriction of the applicant’s right to take legal action was “necessary in a democratic society”. It found that the potential interest of Y to enjoy the “social reality” of being the daughter of the applicant could not outweigh the latter’s legitimate right of having at least one occasion to reject the paternity of a child who, according to scientific evidence that the applicant alleged to have obtained, was not his own. The fact that the applicant was never allowed to disclaim paternity was not proportionate to the legitimate aims pursued. It followed that a fair balance had not been struck between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence. Therefore, despite the margin of appreciation afforded to the domestic authorities, the latter had failed to secure to the applicant the respect for his private life, to which he was entitled under Article 8.
Conclusion: violation (unanimously).
Article 14 taken in conjunction with Articles 6 and 8 – In bringing an action to contest his paternity the applicant was subject to time-limits which did not apply to other “interested parties”. The Court found that the rigid application of the time-limit along with the Constitutional Court’s refusal to allow an exception deprived the applicant of the exercise of his rights guaranteed by Articles 6 and 8 which were and still are, on the contrary, enjoyed by the other interested parties.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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