Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32669/96

by C. V.

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms ;

Having regard to the application introduced on 20 July 1996 by

C. V. against Italy and registered on 20 August 1996 under file No.

32669/96 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission ;

Having deliberated ;

Decides as follows :

THE FACTS

The applicant is an Italian national, born in 1962 and currently

resident in Nocera Inferiore (Salerno). Before the Commission, she is

represented by Mr. Giuseppe Faiella, a lawyer practising in Nocera

Inferiore.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 14 March 1955, the applicant's mother, Mrs. P., and her

husband, Mr. V., signed a deed of legal separation. By order of 30 May

1955, the President of the Salerno District Court ratified the deed.

The applicant has indicated that from that date Mrs. P. and Mr. V.

ceased living together and had no further relationship of any kind.

The applicant was born on 2 September 1962 and registered,

according to the relevant provisions of Italian law, as the legitimate

child of Mrs. P. and Mr. V. However, the applicant has pointed out that

at the date of her conception, her mother was living with Mr. G., while

Mr. V. was confined in a mental asylum.

On 19 April 1984, Mr. V. died and on 30 June 1985 Mrs. P. married

Mr. G.

On 18 March 1986, the applicant summoned her mother and Mr. G.

before the Salerno District Court seeking recognition of her status as

the defendants' legitimate child. On 8 October 1986, Mrs. P. and Mr. G.

declared to the Salerno investigating judge that the applicant was

their daughter. The hearing of 12 March 1987 was adjourned at the

applicant's request. As none of the parties was present at the hearings

of 8 October 1987 and 25 February 1988, the investigating judge decided

to strike the case out of the list.

On 24 May 1993, Mr. G. died.

On 13 September 1993, the applicant filed an application before

the Salerno District Court for leave to bring an action for recognition

of her status as Mr. G.'s natural child. Pursuant to an order issued

on 16 December 1993 by the President of the Nocera Inferiore District

Court, on 29 December 1993 this application was served on the

applicant's mother and on Mr. G.'s brother.

In an order of 26 January 1994, the Nocera Inferiore District

Court declared the application inadmissible. The Court observed that

the applicant had the status of legitimate child of Mr. V. and that

under Article 253 of the Civil Code, read in conjunction with

Article 269, any declaration of natural paternity was not allowed.

On 5 February 1994, the applicant appealed to the Salerno Court

of Appeal. She pointed out that her mother and Mr. V. lived separately

from 1955 onwards and that, according to Articles 234, 238 and 248 of

the Civil Code, a child born more than 300 days after the legal

separation of the mother from her husband is presumed not to be

legitimate. Being born in 1962, she could not be considered the

legitimate child of Mr. V. and her action for recognition of natural

child status should consequently be declared admissible.

In an order of 28 April 1994, filed with the registry on 3 May

1994, the Court of Appeal dismissed the applicant's complaint. The

court observed that the applicant's status of legitimate child

precluded her from bringing any action to obtain a declaration

regarding her natural affiliation and that that status could have been

challenged only by bringing an action to contest legitimacy ("azione

di disconoscimento della paternità"). However, in the instant case such

an action was time-barred under Article 244 para. 3 of the Civil Code,

according to which "the action to contest legitimacy can be brought by

the child within a period of one year from the date on which he or she

reached his or her majority or from the moment on which he or she

became aware of the facts that render the action admissible".

The applicant lodged an appeal on points of law against this

decision. In a judgment of 3 July 1995, filed with the registry on

25 January 1996, the Court of Cassation dismissed the applicant's

appeal. The court noted that when the applicant was born, in 1962,

Italian law prescribed a presumption of legitimacy that could not be

rebutted merely by the fact that the married couple had legally

separated and that the status of legitimate child had thus been

regularly attributed to the applicant according to the rules in force

at the relevant time. The court upheld the remainder of the Court of

Appeal's reasoning.

COMPLAINT

Invoking Article 8 of the Convention, the applicant complains

about the decisions dismissing her application for leave to bring an

action for recognition of her status as Mr. G.'s natural child. She

alleges that she has been deprived of the right of being legally

recognized as the daughter of her "real" father.

THE LAW

Invoking Article 8 (Art. 8) of the Convention, the applicant

complains about the decisions dismissing her application for leave to

bring an action for recognition of her status as Mr. G.'s natural

child.

Article 8 (Art. 8) reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public

safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The applicant points out that the status as Mr. V.'s legitimate

child, which prevented her from bringing the action in question, was

attributed to her on the basis of the old text of Article 232 of the

Civil Code. Although this provision was amended in 1975, the Italian

legislator did not provide that it could apply retrospectively, thus

depriving her of the right of being legally recognized as the daughter

of her "real" father.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of these provisions as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case, the Salerno Court of Appeal and the Court

of Cassation declared inadmissible the applicant's application for

leave to bring an action for recognition of the status of natural child

because she had failed to bring an action contesting legitimacy within

the period of one year from the time she became aware that she was not

Mr. V.'s legitimate daughter, as provided for by Article 244, para. 3

of the Italian Civil Code. In these circumstances, where failure to

respect procedural rules constitutes the reason for the refusal of a

remedy, the Commission cannot consider that the requirement as to the

exhaustion of domestic remedies has been satisfied (N° 10636/83,

Dec. 1.7.85, D.R. 43, pp. 171, 173).

The Commission further considers that in the present case there

were no special circumstances that could have absolved the applicant

from the obligation to exhaust domestic remedies, according to the

generally recognised rules of international law.

It follows that the applicant has not met the requirements of

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies and that the application must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

C.V. v. ITALY

C.V. v. ITALY

LEXI