Communicated on 20 September 2017

FOURTH SECTION

Application no. 62257/15 Francesco Saverio MIFSUD against Malta lodged on 15 December 2015

STATEMENT OF FACTS

The applicant, Mr Francesco Saverio Mifsud, is a British national, who was born in 1925 and lives in Dublin. He is represented before the Court by Dr V. Galea , a lawyer practising in Birkirkara.

A. The circumstances of the case

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

1. Background to the case

On 20 December 2012 X. (around 55 years old) instituted an action before the Civil Court (family jurisdiction) requesting the court to declare the applicant to be her biological father and to order this to be reflected on her birth certificate. Relying on Article 100A of the Civil Code (see relevant domestic law) she requested the court to order that genetic tests be undertaken by her and the applicant. Save for her own affidavit and that of her mother she declared to have no further evidence to adduce.

The applicant objected to the tests on the basis that such an order would breach his human rights. In particular, he argued that Article 100A of the Civil Code (which referred back to Article 70A of the same code) breached his rights under Article 8 of the Convention, and requested the court to refer the matter to the constitutional jurisdictions. On 23 October 2013 the court referred the applicant ’ s claim to the constitutional jurisdictions.

2. Constitutional redress proceedings

In his pleadings the applicant submitted that none of the aims mentioned in sub paragraph two of Article 8 applied in his case, and the law in force did not allow for a fair balance of the competing interests at play. It also imposed an excessive burden in so far as it impeded his possibility of contesting a claim. Moreover, everyone was entitled to institute such proceedings without a shred of evidence, and an alleged father would be bound to submit to the test, with all its consequences, even if he were sure that he was not the father. He claimed that a positive result of the test would disrupt and create havoc in his life after so many years of silence [he was 88 years old]. He requested the court to balance X ’ s right (if any) to know who was her father, and his right to respect for his private and family life.

By a judgment of 30 October 2014 the court found that there was no violation of Article 8 as a result of the Civil Court ’ s choice to order the applicant to undergo a genetic test, as requested by the claimant, for the specific purposes of that suit. Indeed, the enactment of the impugned provisions reflected the State ’ s action in accordance with its positive obligations in respect of a person ’ s right to know one ’ s parentage in the context of a judicial procedure. Citing Pascaud v. France (no. 19535/08, § 64, 16 June 2011), it reiterated that “the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant [a person seeking to establish paternity] of her Article 8 rights”. According to the court, disproportionality would result had the person seeking paternity acted negligently, by not requesting the test, or not availing him or herself of an available remedy, or had renounced such right, but this was not the case at hand. Referring to the ECHR case-law it noted that while it was true that the absence of an obligatory test did not necessarily entail a violation, it could not be said that making it obligatory was in violation of Article 8 because it was not proportionate. Furthermore, the age of X. was irrelevant in her quest to discover her genetic parent, this was even more so given that she had been trying to establish paternity over the years and that the applicant had been part of her life for a period of time. In that light the applicant could not claim that his family life would now be tumbled. Lastly, referring to Jäggi v. Switzerland ( no . 58757/00, ECHR 2006 ‑ X), which concerned the same circumstances - save that the putative fa ther in that case was deceased ‑ it confirmed that a particular scrutiny was necessary in weighing competing interests in cases of ascertaining parentage and that a person ’ s right to ascertain parentage was a vital interest protected by the Convention.

On 10 November 2014 the applicant appealed. In particular he argued that by assessing the case under positive obligations, the first ‑ instance court had failed to assess proportionality. Neither had it looked at the lawfulness of the measure and the legitimate aim – in this connection he contended that since the requirement to order the test was mandatory (unless it concerned a minor), it deprived the judge making such order of any possibility to balance out the interests at play and to decide according to his discretion. Further, the impugned law impinged on the equality of arms principle and was contrary to procedural rules (specifically Article 562 of the Civil Code ‑ see relevant domestic law).

By a judgment of 26 June 2015, the Constitutional Court rejected the appeal and confirmed the first-instance judgment. It noted that X wished for a number of years to uncover the truth about an important aspect of her personal identity, she also wished to amend her birth certificate which read unknown father (and was thus, in her view, incorrect); She also wanted to establish a claim over the applicant ’ s patrimony after his decease, according to law. Thus, her impelling interest in determining paternity was clear. On the other hand, save for his old age, the humiliation of undergoing the test [a buccal swab], and the havoc the confirmation of such paternity would cause, the applicant had not referred to any further negative effects. In consequence, in view of X ’ s moral and patrimonial interests which weighed against those of the putative father, there was no such breach in the present case. Referring to Pascaud (cited above) it considered that the interference with the applicant ’ s right was legitimate for the protection of the rights of others, in the present case X. who wanted to establish her personal identity and safeguard her patrimonial rights if it turned out that the applicant were her father.

Further, in connection with the applicant ’ s argument concerning the impossibility of the domestic court to apply any discretion in ordering such tests, the court held that while the mandatory nature of the order could in certain cases raise an issue, this was not so in the circumstances of the present case given the factual circumstances. Moreover, discretion did exist under 70 A[3] of the Civil Code when dealing with the interest of minors, as well as under Article 100A of the Civil Code, in respect of anyone having interest to challenge.

Lastly, the complaint about equality of arms was frivolous in so far as it was obvious that the fact that a piece of evidence was conclusive did not mean that it should be discarded.

3. Continuation of the civil proceedings

Following the above mentioned Constitutional Court judgment, on 28 October 2015, the Civil Court (Family Section) ordered that the proceedings be continued and that the applicant undergo the genetic test at issue. It appointed an expert to conduct such an examination and requested her to submit a report by 28 January 2016.

The applicant submitted to the test and according to a report of the expert issued on 21 February 2017 the probability of paternity, namely of the applicant being X. ’ s father, was 99.9998%.

On 6 April 2017 the case was adjourned for judgment, but it does not appear that a judgment has yet been delivered.

B. Relevant domestic law

The relevant articles of the Civil Code, Chapter 16 of the Laws of Malta, read as follows:

Article 70A

“ (1) Whenever the clarification of natural parentage of a child is required -

( a ) the father may require the mother and the child;

( b ) the mother may require the father and the child;

( c ) the child may require both parents; and

( d ) the alleged natural father may require the husband, the mother and the son,

to consent to a genetic paternity test and to acquiesce in the taking of a genetic sample appropriate for the test, which sample must be taken according to the then current provisions of the law.

(2) On the application of a person entitled to clarify, the Civil Court (Family Section) must substitute consent that has not been given and order acquiescence in the taking of a sample.

(3) The Civil Court (Family Section) shall dismiss the application if and as long as the clarification of the natural parentage would result in a considerable adverse effect on the best interests of the minor child, which would be unreasonable for the child, even taking into account the concerns of the person entitled to clarify.

(4) A person, who has consented to a genetic paternity test and has given a genetic sample, may require the person entitled to clarify who has had a paternity test made, to permit inspection of the genetic paternity test report or to provide a copy. The Civil Court (Family Section) shall decide disputes arising from the claim under sub ‑ article (1).

(5) The applications mentioned in this article shall be decided by virtue of decrees, which decrees may be appealed according to the procedure contemplated in article 229(2) of the Code of Organization and Civil Procedure.”

Article 100

“ A judicial demand for a declarator of paternity or maternity may also be contested by any party interested.”

Article 100A

“ In causes to which this Sub-Title makes reference, the court may, without prejudice to any evidence that may be produced by the parties according to law, require the parties to submit to examinations as referred to in article 70A, and in the same manner and in the same circumstances.”

Article 562 of the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, reads as follows:

“Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it.”

COMPLAINT

The applicant complains that the fact that Maltese law made it mandatory to provide a genetic sample in paternity proceedings, contrary to his will, resulted in a breach of Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1 . Has there been a violation of the applicant ’ s right to respect for his private and family life, contrary to Article 8 of the Convention?

2. In particular, was the interference with the applicant ’ s rights under Article 8 in accordance with a law of sufficient quality and was the measure necessary in a democratic society in order to achieve the aim or aims concerned?

3. In the light of the mandatory nature of the order to submit to the test without a prior balancing exercise of the interests at stake by the ordinary domestic court, and the timing of the order, was the decision ‑ making process, seen as a whole, fair and did it provided the applicant with the requisite protection of his interests safeguarded by Article 8?