FOURTH SECTION

DECISION

Application no. 20053/21 Abel GONÇALVES against Portugal

The European Court of Human Rights (Fourth Section), sitting on 28 March 2023 as a Committee composed of:

Armen Harutyunyan, President , Anja Seibert-Fohr, Ana Maria Guerra Martins , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 20053/21) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 March 2021 by a Portuguese national, Mr Abel Gonçalves (“the applicant”), who was born in 1965, lives in Águas Santas and was represented by Mr P. Morgado, a lawyer practising in Fiães;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . The applicant was born on 18 October 1965. He was subsequently registered as the son of A. (the mother) and F. (the father), who were married to each other at the time.

2. On 25 August 1967, following a civil claim to contest his paternity, the applicant was re-registered, this time as the son of A. only.

3 . In 2015 the applicant brought paternity proceedings against A.F., at that time aged 75, claiming to have found out that the latter was his father. He claimed that his mother had had an affair with A.F. before and after his birth.

4. On 8 May 2017 the Oporto Family Court recognised A.F. as the applicant’s father, on the basis of witness evidence and the fact that his refusal to submit to DNA tests was deemed to entail a presumption of paternity.

5. On 9 May 2019 the Oporto Court of Appeal dismissed A.F.’s appeal and upheld the decision.

6 . On 24 November 2020, following a subsequent appeal by A.F., the Supreme Court quashed the lower courts’ decisions. It found that the applicant’s allegation that it was only in 2015 that his aunt had revealed the identity of his actual father was not established as a proven fact and held that the applicant’s complaint had been lodged out of time in view of the statutory ten-year limit following the age of majority – provided for in Article 1817 of the Portuguese Civil Code (hereinafter “the CC”) – by which a civil claim for recognition of paternity could be instituted. In its reasoning, the Supreme Court followed the Constitutional Court’s ruling no. 401/2011 of 22 September 2011, in which it was held that the ten-year time-limit provided for in Article 1817 § 1 of the CC was not incompatible with the constitutional provisions.

7. Relying on Article 8 of the Convention, the applicant complains that the dismissal – on account of the statutory ten-year limitation period – of the paternity proceedings brought by him was in breach of that Article.

THE COURT’S ASSESSMENT

8. The Court has held on previous occasions that the circumstances of birth form part of private life, guaranteed by Article 8 of the Convention (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003‑III, and Phinikaridou v. Cyprus , no. 23890/02, § 45, 20 December 2007) and that everyone should be able to establish details of their identity as individual human beings. This includes obtaining the information needed to uncover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see, for example, Călin and Others v. Romania , nos. 25057/11 and 2 others, § 83, 19 July 2016).

9. Nevertheless, the Court has held that the introduction of a time-limit for instituting paternity proceedings can be justified by the desire to ensure legal certainty and thus is not per se incompatible with the Convention. A fair balance needs to be struck between the child who has the right to know his or her identity and the putative father’s interest in being protected from allegations concerning circumstances that date back many years (see Phinikaridou , cited above, § 52; Backlund v. Finland , no. 36498/05, § 45, 6 July 2010; Silva and Mondim Correia v. Portugal , nos. 72105/14 and 20415/15, § 57, 3 October 2017; and Çapın v. Turkey , no. 44690/09, § 87, 15 October 2019).

10. Turning to the present case, the Court considers it established that the applicant’s inability to bring a civil claim for judicial recognition of paternity amounted to an interference with his right to respect for his private and family life within the meaning of Article 8 (see paragraph 6 above; see also Silva and Mondim Correia , cited above, § 59).

11. The Court notes that Article 1817 § 1 of the CC provides for a ten ‑ year limitation period, after the person concerned has attained the age of majority, within which he or she may institute paternity proceedings. The Supreme Court of Justice dismissed the applicant’s civil claim on the grounds of the Constitutional Court’s ruling no. 401/2011 of 22 September 2011, which had held that the ten-year time-limit provided for by Article 1817 § 1 of the Civil Code was not incompatible with the constitutional provisions (see paragraph 6 above). Therefore, the Court considers that the interference was “in accordance with the law” (see Silva and Mondim Correia , cited above, §§ 61 ‑ 62). It is also satisfied that the interference in question pursued a legitimate aim (ibid., § 63).

12. It remains to be determined whether the nature of the time-limit in question, and/or the manner in which it was applied, was compatible with the Convention.

13. The Court has already analysed the provision in issue and stated that the time-limit provided for by Portuguese law is not a rigid one (ibid., § 65). It also notes that since 2011 the Constitutional Court has taken the view that the time-limit is not incompatible with the Constitution because it is reasonable to allow an individual a sufficient amount of time, having reached the age of majority, to decide whether or not to bring paternity proceedings while at the same time safeguarding legal certainty in respect of the putative father and his family (ibid., § 66).

14. In the present case, similarly to Silva and Mondim Correia (cited above, §§ 67-69), the Court notes that the applicant, having reached the age of 50 by the time he instituted a civil claim for the recognition of paternity against A.F., aged 75 back then (see paragraphs 11 and 3 above), had demonstrated a lack of diligence in instituting such proceedings, taking many years after reaching the age of majority to seek to have his paternity legally established. The Court also observes that the applicant’s justification for this delay was not established as a proven fact (see paragraph 6 above). Therefore, the Court considers that the applicant did not demonstrate that there were circumstances which prevented him from acting sooner.

15. In accordance with the principle of subsidiarity, having regard to all the elements described above, the non‑absolute nature of Article 1817 § 1 of the CC and the case-law of the Portuguese Constitutional Court, the Court concludes that the application of the time-limit for instituting paternity proceedings was supported by relevant and sufficient reasons and that it was not disproportionate in the light of all the circumstances of the case.

16. Therefore, it did not affect the substance of the right to respect for private and family life enshrined in Article 8 of the Convention.

17. It follows that the application must be rejected as manifestly ill ‑ founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2023.

Crina Kaufman Armen Harutyunyan Acting Deputy Registrar President