Constitutionality Review

Contested Provision

The contested provision stipulates that a person claiming to be the biological father may file an action for renunciation of paternity prior to the expiration of the statutory period only in cases where the legal husband passes away, is declared missing, or permanently loses mental competence and within one year from the date the claimant become aware of the birth of the child, the husband’s death, his permanent loss of mental competence, or him being missing.

Ground for the Request for Annulment

It was maintained in brief that restricting the right of the alleged biological father to file an action for renunciation of paternity based on particular conditions and imposing time constraints in this sense contradicts the state’s fundamental aims and obligations; infringes upon the principle of the rule of law; and is incompatible with the principle of equality and the right to a fair trial. The contested provision was therefore claimed to be unconstitutional.

The Court’s Assessment

The contested provision conditions the initiation of an action for the renunciation of paternity by the alleged biological father on certain circumstances beyond their control. Accordingly, for a person claiming to be the father to file an action for the renunciation of paternity, the husband must have passed away, been declared legally missing, or permanently lost his mental capacity before the expiration of the statutory period. In the absence of these conditions, the person claiming to be the father is precluded from initiating an action for the renunciation of paternity. In this respect, the Court has concluded that this situation prevents the alleged biological father from effectively seeking his right, thereby undermining his right to an effective remedy.

In addition, the Court has assessed that in the absence of conditions required for the challenge of paternity by the alleged biological father, the possibility of initiation of such case by the legal guardian of the child or by the child himself/herself after reaching lawful age does not offer any safeguards for the alleged biological father within the scope of the right to an effective remedy. As a matter of fact, the right to an effective remedy entails the ability of the person claiming to be a father to raise his claims of alleged violations of the right to respect for private life before judicial authorities in his capacity as a plaintiff.

In brief, the Court has concluded that the provision conditioning the ability of the alleged biological father to raise his allegations as to the disestablishment of the presumption of paternity on particular circumstances outside of his control infringes upon the right to an effective remedy within the scope of the right to respect for private life.

Consequently, the contested provision has been found unconstitutional and therefore annulled.