Information Note on the Court’s case-law No. 133

August-September 2010

I.L.V. v. Romania (dec.) - 4901/04

Decision 24.8.2010 [Section III]

Article 8

Article 8-1

Respect for family life

Respect for private life

Refusal of domestic courts to order mother and child to undergo DNA tests to establish scientific evidence of paternity where that issue had already been judicially determined: inadmissible

Facts – In 1988 the applicant had a relationship with L.C., who became pregnant. He was informed of her pregnancy in June 1988. In early October 1988 they decided to live together but separated after three weeks. In March 1989 L.C. gave birth to a daughter, A. In a final judgment of 1990 a district court upheld a claim by L.C. and recognised the applicant as the father of A. It based its decision mainly on the history of the couple’s relationship and on the statutory conception period. In 2003 the applicant brought proceedings against L.C. and A. to oblige them to undergo blood and DNA tests. All his actions were dismissed by the courts.

Law – Article 8: (a) Applicability – The determination of the legal regime governing relations between a father and his putative child concerned the father’s private life. Whilst, in the present case, the domestic courts had been confronted with a question of evidence, the applicant’s aim had nevertheless been to ascertain the truth about an important aspect of his existence, namely whether or not he was the child’s father. Consequently, Article 8 was applicable.

(b) Merits – The applicant had not appealed against the judgment of March 1990 establishing his paternity in respect of A. However, in 2003 he had brought an action before the domestic courts to oblige L.C. and A. to undergo a DNA test. That action had thus concerned an obligation to act, which was governed by the general rules applicable to civil actions. It had been dismissed by the court of appeal on the basis of the Constitution, which guaranteed every individual’s right to self-determination. The dismissal of the proceedings had thus been provided for by law and had pursued the legitimate aim of protecting the rights and freedoms of others, in this case to safeguard the interests of A.

The balancing of the interests at stake had involved, on the one hand, the applicant’s right to find out whether he was the biological father of A. and, on the other, the A. right of to retain her established parental relationship and the public interest in the protection of legal certainty. The applicant’s legal action had been aimed at obtaining evidence in order to ascertain the biological reality of his relationship with A., by obliging her to undergo a DNA test. However, given the child’s refusal to undergo the test, the interests at stake appeared contradictory. Moreover, the upholding of the applicant’s action would have affected not only his own interests but also those of A. The emergence of DNA testing and the possibility of using it in legal proceedings had represented a significant development for the courts, enabling the existence of biological relationships between different individuals to be established with certainty. That being said, the need to protect third parties could exclude the possibility of obliging them to undergo a particular form of medical analysis, especially when, as in the present case, the third party in question was a child who had a long-established legitimate paternal relationship. The Court therefore found, as indeed the domestic courts had done, that at the material time it had not been unreasonable to place the child’s best interests and the principle of legal certainty above the interests of the applicant.

Accordingly, the absence of any indication that the child wished to have her paternity verified, the fact that she was a minor, the length of time for which she had had a settled civil status and the possible pecuniary consequences, albeit minimal, all weighed in favour of upholding the child’s interest in not being deprived of a legitimate biological paternity. Therefore, the reasons given by the court of appeal based on the child’s interests had been sufficient to justify the rejection of the applicant’s action. Since the applicant had no biological evidence to show that he was not A.’s father it was not for the Court to examine in abstracto whether the domestic law permitted the setting-aside of the final judgment of March 1990, against which the applicant had not appealed, in order to bring the legal reality into line with the biological reality.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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