Maltese courts wrong to disallow DNA evidence

The European Court of Human Rights yesterday unanimously ruled that the Maltese courts were wrong to deny a prominent businessman the right to put forward DNA evidence in order to prove he was not the father of his former wife's daughter, born almost 40 years ago.

Maurice Mizzi, 69, from Bidnija, had taken the government to the Strasbourg-based court after the Constitutional Court in 2002 overturned an earlier decision by the Civil Court that had paved the way for him to challenge the daughter's paternity.

When contacted yesterday, Mr Mizzi said of the landmark decision: "I'm very pleased with the result as justice is being done. It's been a long-drawn case".

The ECHR awarded Mr Mizzi €5,000 in non-pecuniary damages and €40,000 in costs and expenses after it agreed there had been a violation of three articles of human rights: the right to a fair hearing within a reasonable time; the right to respect for private and family life; and prohibition of discrimination.

The subject matter of the story was conceived nearly 40 years ago. Mr Mizzi had, since his wife's daughter was born in 1966, contended that he was not the biological father. In 1967, the couple separated and that year, after they stopped living together, the woman gave birth to a child.

Under Maltese law, Mr Mizzi was automatically presumed to be the newborn's father and was registered as such.

According to the Maltese Civil Code, a husband could challenge the paternity of a child conceived in wedlock if he could prove both the adultery of his wife and that the birth had been concealed from him - though the latter condition was dropped when the law was amended in 1993 and a time limit of six months from the day of the child's birth was set as the cut-off point for introducing such proceedings.

However, after undergoing a DNA test, the applicant initiated civil proceedings to repudiate his paternity of the child.

In May, 1997, the Civil Court accepted Mr Mizzi's request for a declaration that, notwithstanding the provisions of the Civil Code, he had a right to proceed with a paternity action and found that there had been a violation of article 8 of the European Convention on Human Rights. However, that judgment was overturned by the Constitutional Court.

Mr Mizzi complained to the ECHR that he was denied access to a court and that the irrefutable presumption of paternity applied in his case amounted to a disproportionate interference with his right for respect of private and family life.

He also complained that he suffered discrimination, because other parties with an interest in establishing paternity in the case were not subject to the same strict conditions and time limits.

Mr Mizzi declared that at the time of the child's birth, he had only been able to file a paternity suit if he was in the physical impossibility of cohabiting with his wife or if his marriage to his wife had ended in a separation prior to the child's conception.

The ECHR considered that the applicant had an arguable right to deny paternity under Maltese law. Furthermore, it held that the fact that a time limit precluded the applicant from benefiting from the 1993 amendments did not impair the existence in itself of that right and as such was only a procedural pre-condition for having access to the domestic courts.

The ECHR held that the domestic courts had failed to strike a fair balance between the applicant's legitimate interest of having a judicial ruling over his presumed paternity and the protection of legal certainty and of the interests of the other people involved in his case.

The ECHR observed that the applicant had never had the possibility to have the results of his daughter's blood test examined by a tribunal. It was only after the 1993 amendments removing the condition concerning concealment that the applicant would have had the right to contest paternity on the basis of scientific evidence and of proof of adultery, had it been possible to lodge the action within six months of the child's birth.

It noted there was no fair balance between the general interest of the protection of legal certainty of family relationships and the applicant's right to have the legal presumption of his paternity reviewed in the light of the biological evidence.

Therefore, the ECHR deemed that the domestic authorities had failed to secure to the applicant the respect for his private life.

The ruling was given by a chamber of seven judges, including Mr Justice Joseph Filletti.