Judgment I. ÚS 2845/17 - Reopening Proceedings to Determine Paternity after more than 50 years

08 January 2019

On 8 January 2019 the First Chamber of the Constitutional Court (judge rapporteur David Uhlíř) granted the constitutional complaint and quashed judgments of lower courts.


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The District Court in Písek decided to discontinue the proceedings to determine paternity with reference to the principle of a matter already judged (res judicata), as it found that the complainant unsuccessfully sought in 1963, as a minor acting through her mother, represented by a guardian ad litem, a declaration that V. B., an intervener, is her father. The decision was confirmed by the Regional Court in České Budějovice, also ruling out that in today’s proceedings the correctness of this decision in 1963 could in any way be reviewed, namely also in terms of alleged partiality or bias of the then judges; the limits of the established legal force cannot be affected by a divergent decision or assessment of the case. The complainant states in her constitutional complaint that the principle of res judicata has been broken several times with respect to the conflict between the constitutional right of the child to know his/her father and the rule of law requirement of legal certainty. The complainant holds that the mere insistence on this principle, regardless of the overall circumstances of the case, is unsustainable. In this context, she especially mentions the judgments of the European Court of Human Rights (hereinafter referred to as the “ECtHR”) in the cases of Paulík versus Slovakia and Jäggi versus Switzerland. She considers that, in particular, the above-mentioned judgments agree in the need to reconcile the biological and social realities with the legal status of family relationships, especially in determining paternity. As for the judicial proceedings held in 1963, the complainant stated that in her opinion the proceedings were conducted unfairly because of the influence of intervener who served as a judge at the Regional Court in České Budějovice. The courts did not order at all a blood test that would determine or deny paternity with high probability, while the complainant would ask for a DNA test at present.

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The Constitutional Court emphasised that the ECtHR case-law achieves constitutional-law quality in the Czech law and courts are required to take account of it even in the cases that relate to other Member States of the Convention, if these cases, by their nature, have importance also for the interpretation of the Convention in the Czech context. According to the ECtHR, the proceedings to determine or deny paternity is part of the right to private life under Article 8 of the Convention, which includes important aspects of personal identity. The Constitutional Court therefore considered whether the ordinary courts comply with the requirements and spirit of Article 8 of the Convention and the related case-law, while mentioning, in addition to the above-mentioned judgments, the judgments in the case of Shofman versus Russia and, most recently, in the case of Novotný versus the Czech Republic. The Constitutional Court finally concluded that all these judgments agree in the need to bring the biological reality into line with the legal status in the area of the determination of paternity. The persons who are trying to find their relatives have an interest, protected by the Convention, in obtaining the information necessary to establish aspects important for their personal identity. Against this right there stands a general interest in the stability of the legal relationship established by res judicata, as well as the rights of third parties, which however must be balanced with the above-mentioned right. In the given case, in view of the Constitutional Court, the right of the child as the weaker party to know his/her parents is stronger than the right of putative father to disagree with undergoing a DNA testing. This is indeed already reflected by the Czech legislature (although the complainant was not subject to the given provisions) in Section 425a of the Act on Special Court Proceedings, which allows filing an action for the resumption of proceedings to determine or deny paternity, even after three years from the legal effect of the contested decision, if paternity has been determined by the court before 31 December 1995 and there is new evidence arising from applying new scientific methods. Finally, the Constitutional Court also applied a proportionality test and concluded that the rights of the complainant in accordance with Article 8 of the Convention and Article 36 (1) of the Charter had been violated and annulled the decision of the ordinary courts, thereby returning the matter to be dealt with before the District Court in Písek.