Communicated on 24 May 2016

FOURTH SECTION

Application s no s . 72105/14 and 20415/15 Tomás SILVA against Portugal and Mário Alberto MONDIM CORREIA against Portugal

STATEMENT OF FACTS

The applicant in the first case (no. 72105/14), Mr Tomás Silva, is a Portuguese national who was born in 1944 and lives in Oliveira de Azem é is . He is represented before the Court by Mr J. J. Ferreira Alves, a lawyer practising in Matosinhos .

The applicant in the second case (no. 20415/15), Mr Mário Alberto Mondim Correia , is a Portuguese national who was born in 1970 and lives in Vila Real. He is represented before the Court by Mrs L. do Fundo, a lawyer practising in Vila Nova de Famalic ã o .

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

A. The circumstances of the cases

1. Application no. 72105/14

The applicant was born out of wedlock in 1944. His mother always considered T.S. to be his father. He has, since an early age, been in touch with T.S. ’ s family, who have always considered him their relative.

On 26 March 2012 the applicant lodged with the Vale de Cambra Court an action for recognition of paternity (domestic proceedings no. 155/12.1TBVLC). T.S. objected and argued that the applicants claim was time-barred, according to Article 1817 § 1 of the Civil Code. The applicant responded that this provision was unconstitutional because it violated Articles 18 §§ 2 and 3 and 26 § 1 of the Constitution.

On 26 June 2012 the judge gave directions ( despacho saneador ) setting out the matters that had already been established and those that remained outstanding. In addition, the judge dismissed T.S. ’ s objection that the applicant ’ s claim was time-barred, considering that the time-limit set by Article 1817 § 1 was unconstitutional.

On an unknown date T.S. challenged the judge ’ s decision of 26 June 2012 in the part in which it considered Article 1817 § 1 not to be compatible with constitutional provisions before the Porto Court of Appeal.

On 9 April 2014 the Porto Court of Appeal dismissed T.S. ’ s appeal, considering that Article 1817 § 1 was unconstitutional and that the right to seek judicial recognition of paternity should not be subject to a time-limit.

Meanwhile, on a non-specified date, at the request of the applicant the Vale de Cambra Court ordered DNA tests, which established that T.S. was the applicant ’ s father.

T.S. appealed to the Supreme Court of Justice.

On 14 January 2014 the Supreme Court dismissed T.S. ’ s appeal and upheld the decision of the Porto Court of Appeal in its entirety.

On an unknown date T.S. appealed to the Constitutional Court, to which he submitted the question of the constitutionality of Article 1817 § 1 of the Civil Code, pursuant to Article 70 § 1 (a) of the Law of the Constitutional Court.

On 18 March 2014 the Constitutional Court held, with reference to its previous ruling no. 401/2011, that Article 1817 § 1 complied with the relevant provisions of the Constitution.

The applicant appealed to the Conference of the Constitutional Court ( Confer ê ncia do Tribunal Constitucional ), claiming that Article 1817 § 1 was unconstitutional. On 7 May 2014 the Conference of the Constitutional Court upheld the previous decision and dismissed the applicant ’ s claim.

As a result of the Constitutional Court ’ s decisions, the Supreme Court of Justice dismissed the applicant ’ s action on 9 July 2014.

2. Application no. 20415/15

The applicant was born out of wedlock in 1970. His mother always considered A.M. to be his father.

On 31 March 2014 the applicant brought paternity proceedings before the Vila Real Court (domestic proceedings no. 165/13.1TBVLR). A.M. objected, arguing that the applicant ’ s claim was time-barred.

On 15 June 2013 the Vila Real Court dismissed the applicant ’ s action, considering it time-barred. In addition, it noted that the applicant had not argued that there were any factors leading to the applicability of the additional three-year time-limit established by Article 1817 § 3 of the Civil Code.

On 5 June 2013 the applicant appealed to the Porto Court of Appeal, challenging the constitutionality of Article 1817 § 1 of the Civil Code.

On 10 December 2013 the Porto Court of Appeal upheld the first-instance judgment, considering that Article 1817 § 1 of the Civil Code was compatible with constitutional provisions, pursuant to Ruling no. 401/2011 of the Constitutional Court. One of the judges dissented, considering that the protection afforded by the Constitution of the fundamental right to personal identity requires that the possibility of investigating ones biological identity is not subject to a time-limit.

On 28 January 2014 the applicant appealed to the Supreme Court of Justice.

By a judgment of 27 May 2014 the Supreme Court of Justice quashed the judgment of the Porto Court of Appeal and considered that Article 1817 was unconstitutional.

A.M. lodged a constitutional appeal before the Constitutional Court, which by a summary decision of 25 September 2014 decided that the provision was constitutional and ordered that the judgment of the Supreme Court be modified in conformity.

The applicant appealed to the Conference of the Constitutional Court. On 28 October 2014 the Conference upheld the previous decision.

Following the Constitutional Courts decisions, the Supreme Court of Justice dismissed the applicant ’ s action on 13 January 2015.

B. Relevant domestic law and practice

1. The Constitution of the Portuguese Republic

The relevant articles of the Constitution of the Portuguese Republic read as follows:

Article 18

(Legal force)

“3. Laws that restrict rights, freedoms and guarantees must have a general and abstract nature and may not have a retroactive effect or reduce the extent or scope of the essential content of the constitutional precepts.”

Article 26

(Other personal rights)

“1. Everyone is accorded the rights to personal identity, to the development of personality, to civil capacity, to citizenship, to a good name and reputation, to their image, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.

2. The law shall lay down effective guarantees against the improper procurement and misuse of information concerning persons and families and its procurement or use contrary to human dignity.

3. The law shall guarantee the personal dignity and genetic identity of the human person, particularly in the creation, development and use of technologies and in scientific experimentation.

4. Deprivation of citizenship and restrictions on civil capacity may only occur in the cases and under the terms that are provided for by law, and may not be based on political motives.”

Article 36

(Family, marriage and filiation)

“3. Spouses have equal rights and duties in relation to their civil and political capacity and to the maintenance and education of their children.

4. Children born outside wedlock may not be the object of any discrimination for that reason, and neither the law, nor official departments or services may employ discriminatory terms in relation to filiation.”

2. The Portuguese Civil Code

Articles 1873 and 1817 § 1 of the Civil Code stipulate that a claim for establishing paternity can be brought at any time until the child reaches his or her majority. After that, the right to seek paternity recognition by judicial decision shall lapse ten years after the person has attained his or her majority.

In addition, Article 1817 § 3 of the Civil Code creates an exceptional three-year time-limit within which paternity proceedings can be brought. According to this provision, a person can seek paternity recognition by judicial decision within three years of one of the following events: a paternity being successfully challenged by a third party; b the applicant ’ s becoming aware, after the expiry of the ten-year time-limit, of factors or circumstances which may justify the proceedings, in particular where they have ceased to be treated as a son or daughter; c in the event that paternity has not been established, the investigating party ’ s becoming aware of facts or circumstances which allow the investigation.

3. Case-law of the Supreme Court of Justice

The Supreme Court has held on several occasions that the ten-year time-limit set by Article 1817 § 1 was unconstitutional (see, for example, judgments of 8 June 2010, 21 September 2010, 27 January 2011 and 6 September 2011).

In more recent cases the Supreme Court has also considered that the time-limit in question was not incompatible with the Constitution (see, for example, its judgment of 17 November 2015).

4. Case-law of the Constitutional Court

In ruling no. 401/2011 of 22 September 2011 the Constitutional Court was called upon to rule on whether Article 1817 § 1 of the Portuguese Civil Code was compatible with the Constitution. The Constitutional Court dismissed the objections raised as to constitutionality, and considered that the provision in question was not disproportionate, in that it did not violate the constitutional right to know ones biological parents and to establish the commensurate legal bond, which itself fell within the scope of the fundamental rights to personal identity and the right to form a family. For the Constitutional Court ’ s judges such a limitation did not prevent the holder of the right from exercising it, but merely imposed on him/her the onus of doing so by a given deadline.

The Ruling was the object of six dissenting opinions, including that of its original rapporteur. These were essentially based on the view that: the protection of the assets that pertained to the investigating party were not compatible with any limitation; or that even if it were possible to limit the investigating party ’ s interests, in the case under consideration that would not be justified when the proportionality of the various conflicting interests was weighed up.

COMPLAINTS

The applicants complain under Article 8 of the Convention about the dismissal of paternity proceedings on account of the statutory ten-year limitation period.

QUESTIONS TO THE PARTIES

1. Did the dismissal of the paternity proceedings because of a statutory time-bar constitute an interference with the applicants right to respect for their private and family life within the meaning of Article 8 § 1 of the Convention (see Phinikaridou v. Cyprus , no. 23890/02, 20 December 2007; Backlund v. Finland , no. 36498/05 , 6 July 2010; and Konstantinidis v. Greece , no. 58809/09, 8 September 2014)?

2. If so, was the interference necessary in terms of Article 8 § 2?