European Court of Human Rights
7 February 2002

Facts

The applicant, Ms Mikulić, was a child born out of wedlock on November 1996. Her mother initiated a civil suit against H.P in order to establish paternity. The court hearings were cancelled several times, because either H.P. or his counsel were absent and avoided  six DNA tests ordered by the court. The court of first instance made a judgment establishing H.P. paternity finding that H.P.'s avoidance of DNA tests corroborated the applicant's mother's testimony that H.P. was the applicant's father. This judgment was appealed and the proceedings were still open at the time the Court made its judgment.

Complaint

The applicant complained that her right to respect for her private and family life had been violated because the domestic courts had been inefficient in deciding her paternity claim and had therefore left her uncertain as to her personal identity.

Court's ruling

The Court noted that persons in the applicant\'s situation have a vital interest in receiving the information necessary to uncover the truth about their personal identity. On the other hand, the protection of third persons may preclude their being compelled to make themselves available for DNA testing. The lack of any procedural measure to compel the alleged father to comply with the court order is only in conformity with the principle of proportionality if it provides alternative means: enables an independent authority to determine the paternity claim speedily.

The Court was dissatisfied with the fact that there were no alternative means of compelling the alleged father to comply with a court order for DNA tests to be carried out. Further, there were no procedural measures by which the paternity issue could be resolved otherwise.

The Court found that the procedure available did not strike a fair balance between the interest of the applicant to have her uncertainty as to her personal identity eliminated without unnecessary delay and that of her supposed father not to undergo DNA tests. Thus, there had been a violation of Article 8 of the Convention. 

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