"[...] o inóspito, árido e descurado processo encontra-se estreitamente relacionado com as correntes espirituais dos povos e [...] as suas diversas concretizações devem ser incluídas entre os mais importantes testemunhos da cultura" (F. Klein (1902))


Jurisprudência europeia (TEDH) (16)

Investigação da paternidade;

TEDH 3/10/2017 (72105/14 e 20415/15, Silva e Mondim Correia/Portugal) considerou compatível com a CEDH a caducidade de uma acção de investigação da paternidade, designadamente com os seguintes fundamentos:

"65. The Court notes that the provisions of the Portuguese Civil Code regulate the question of the establishment of paternity by indicating the time-limit within which the action for the judicial recognition of paternity can be instituted. It further observes that the legislator set a general time‑limit of ten years from the date of an individual’s reaching the age of majority or of emancipation. The legislature then set a period of an additional three years following the occurrence of one of three different events, namely: paternity being successfully challenged by a third party, or an individual becoming aware ‒ after the expiry of the ten-year time-limit ‒ of a factor or circumstances which would justify the proceedings (in particular if the child has ceased to be treated as a son or a daughter), or ‒ in the event that paternity has not been established ‒ the investigating party’s becoming aware of facts and circumstances which warrant the investigation [...]. Moreover, the Court takes note of the fact that the time-limit currently in force is the result of a legislative evolution which became operational in 2009 and sought to eliminate a short time-limit that was automatically applied. It also notes that this evolution of the legislation was intended to address the argument raised in Ruling no. 23/2006 of the Constitutional Court that the two-year time-limit laid down in Article 1817 § 1 of the Civil Code in force at the time was incompatible with Articles 26 § 1 and 36 § 1 of the Constitution [...]. In the light of the foregoing, the Court does not consider the time-limit provided for by Portuguese law to be a rigid one [...].

66. It is true that the Portuguese Supreme Court of Justice and the Constitutional Court do not have a harmonised approach to the compatibility of the ten-year time-limit with constitutional provisions. The Court notes, however, that since 2011 the Constitutional Court has taken the view that the aforementioned 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 start paternity proceedings while at the same time safeguarding legal certainty in respect of the putative father and his family [...].

67. The Court further observes that the applicants started proceedings for the judicial recognition of paternity on 26 March 2012 and on 31 March 2014, when they were sixty-eight and forty-four years old, respectively, in other words many years after coming of age. The applicants therefore did not institute paternity proceedings within the time-frame provided for by Article 1817 § 1 of the Civil Code. Moreover, it notes that both applicants had always been aware of their respective father’s identity: in particular, the first applicant had contact with the putative father’s family [...] and the second applicant claimed before the domestic courts that he had always known that A.M. was his father [...]. The instant cases are therefore distinguishable from Phinikaridou and Backlund, both cited above, in which the applicants had not been able to start paternity proceedings within the time period established by law since they were not aware of the identity of the biological father and in which the legislation had established a rigid time-limit for the institution of the proceedings. The Court also notes that the applicants, in their submissions before the domestic courts, did not have recourse to any argument that would result in application of the supplementary three-year period provided for in paragraph 3 of Article 1817 of the Civil Code, as pointed out by the Vila Real Court in its decision dismissing the action lodged by the second applicant for being time-barred [...]. Similarly, they did not refer to any factor that had prevented them from acting sooner.

68. In the Court’s view, therefore, the applicants have shown an unjustifiable lack of diligence in instituting paternity proceedings in that they have waited fifty and twenty-six years, respectively, since reaching the age of majority to seek to have their paternity legally established. The applicants’ vital interest in having their biological truth legally established did not exempt them from complying with the requirements laid down by domestic law [...].

69. In the light of the above, and given the margin of appreciation afforded to States in respect of paternity proceedings legislation, the non‑absolute nature of Article 1817 § 1 of the Portuguese Civil Court, and the case-law of the Portuguese Constitutional Court, the Court considers that application of the time-limit for instituting paternity proceedings in the applicants’ case did not affect the substance of their right to respect for their private and family life under Article 8 of the Convention."