Constitutionality Review

Contested Provision

The contested provision allows the husband to refute the presumption of paternity by bringing an action for the denial of paternity, however, the mother is not granted this right.

Ground for the Request for Annulment

It was maintained in brief that the contested provision was unconstitutional on the grounds that the right to bring an action for the denial of paternity is granted to the husband and the child, but not to the mother. This is because such a denial is incompatible with the principles of the rule of law and equality. Furthermore, the freedom to claim rights is also violated by the mother’s inability to bring an action for the denial of paternity before the judicial authorities.

The Court’s Assessment

Articles 286 and 291 of Law no. 4721 impose restrictions on the persons who may bring an action for the denial of paternity with the aim to eliminate the paternity ties between the child and the father. Accordingly, the mother is not included among the persons who can lodge the relevant lawsuit. Therefore, the mother does not have the chance to resort to the judicial authorities by claiming that the child she gave birth to is not her husband’s.

Although it is not legally possible for the mother to bring an action for the denial of paternity, Article 286 § 2 of the Law grants the child the right to bring such an action, and Article 291 § 2 provides that the trustee appointed for the minor may bring an action for the denial of paternity within one year following the notification of the decision of appointment.

This process allows for the appointment of a trustee for the child with a view to bringing an action for the denial of paternity. However, the ability of the trustee to bring an action does not necessarily guarantee the right to an effective remedy in relation to the mother’s right to respect for her private life. This is due to the fact that the trustee will bring the action for the denial of paternity on behalf of the child, prioritising the child’s best interests. Accordingly, in the present case, the mother of the child will not be able to bring her claims for refutation of the presumption of paternity as a plaintiff.

In this regard, the provision which prohibits the mother from bringing an action before the judicial authorities to refute the presumption of paternity by claiming that the biological father of the child is not the husband, violates the right to an effective remedy in conjunction with the right to respect for private life.

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