Court of Cassation Ruling on Filiation Rights and Private Life

Extract

[...] However, this one presents a risk that the president of the first civil chamber evaluates as ' a risk of differentiated application of the legislative or regulatory norm according to the gravity of the practical consequences carried out in relation to the fundamental rights creating a rupture of equality between the litigants in a differentiated application of the norm ». It could thus harm the principle of legal certainty which preserves the principle of the predictability of the rule of law. Hence, it would become unpredictable for litigants and could be constantly challenged since some could contest that a rule is set aside in a dispute but applied in the one that concerns them. [...]

[...] - Question Does the reasoning adopted by the Court of Cassation in the framework of the proportionality test seem satisfactory to you? (On what arguments is this reasoning based and are they convincing?) The Court of Cassation had subsequently defined the proportionality test as a control exercised by a jurisdiction and consisting of verifying concretely that the application of an internal rule of law does not lead to a disproportionate infringement of a fundamental right guaranteed by an international convention or a national norm in light of the legitimate purpose pursued by this rule. [...]

[...] In contrast, the judges are obliged to consider the action in contestation in relation to Article 8 of the ECHR as well as the legitimate goal pursued. The Court of Cassation recalled this in its decision of 21 November 2018 (n° 17-21095) where it censured the appeals court because it had estimated that the prescription deadlines provided for in the Civil Code in matters of filiation were not compatible with Article 8 of the ECHR, recalling that 'it is however up to the judge to assess whether, concretely, in the case submitted to him, the implementation of these provisions does not constitute a disproportionate infringement of the right to respect for private and family life guaranteed by the Convention, in view of the legitimate goal pursued'. [...]

[...] To this end, the Court of Cassation must answer the following question of law: does the prescription period for a contestation of filiation constitute an interference (or infringement) with the right to respect for private life provided for in Article of the Convention for the Protection of Human Rights and Fundamental Freedoms? After having retained that the Bourges Court of Appeal had correctly noted that the action in contestation had been carried out after the expiration of the prescription period for an action in contestation of filiation, the Court of Cassation states that 'it is up to the judge to assess whether, concretely, in the case submitted to him, the implementation of these legal prescription deadlines does not constitute a disproportionate infringement of the right to respect for the private life of the interested party, in view of the legitimate purpose pursued'. [...]

[...] In this case, a man was declared the father of a child on the civil status records. Upon the death of the parents, another man declared, by authentic will, that he recognized the child as his daughter. The woman, who had been assigned several years later by certain members of her family in a contest of the paternity of her declared father and in the establishment of that of the testator, brought an action in contestation of paternity. The decision of the first instance court is unknown to us. [...]