Contents - Constitutional Court of Georgia

22
Françoise Tulkens
2003, which concerns the issue of “births by an unidentified person” (accouchement sous
X), the Court considers that “birth, and in particular the circumstances in which a child is
born, forms part of a child’s, and subsequently the adult’s, private life guaranteed by Article
8 of the Convention. That provision is therefore applicable in [this] case” 68 .
This judgment will pave the way for others, where the Court will take into account or,
more exactly, give effect to the technological developments in this field and, in particular, to
DNA tests. In the Jäggi v. Switzerland judgment of 13 July 2006, for instance, the applicant
complained that he had been unable to have a DNA test carried out on a deceased person
with the aim of establishing whether that person was his biological father. The Court recalls
that the right to identity, of which the right to know one’s ancestry is an important aspect,
is an integral part of the notion of private life 69 . It further notes that an individual’s interest
in discovering his parentage does not disappear with age, on the contrary 70 . In this case, as
regards the respect of private life of the deceased person, the Court refers to its case-law
in The Estate of Kresten Filtenborg Mortensen v. Denmark decision of 15 May 2006, where
it observed that the private life of a deceased person from whom it was proposed to take
a DNA sample could not be impaired by such a request since it was made after his death 71 .
Lastly, it noted that the protection of legal certainty alone could not suffice as grounds to
deprive the applicant of the right to discover his parentage 72 . Conversely, the right to identity
in the field of filiation extends also to the right to rebut the presumption of paternity.
So, in the Mizzi v. Malta judgment of 12 January 2006, the Court considers that “the potential
interest of Y in enjoying the ‘social reality’ (“possession d’état”) of being the daughter
of the applicant cannot outweigh the latter’s legitimate right to have at least the opportunity
to deny paternity of a child who, according to scientific evidence, was not his own” 73 .
The Court adopts the same position in the Paulik v. Slovakia judgment of 10 October 2006
as well as in the Tavlic v. Turkey judgment of 9 November 2006.
As far as personal intimacy is concerned, while recently considering the compatibility
with Article 8 of the retention by the police of cellular samples of persons charged with
but acquitted of crimes, when finding a violation of the Convention the Court emphasised
the legitimate concerns about the potential use of those samples, containing as they do a
unique genetic code of a vital relevance to the individual 74 .
On a more general level, in the field of bioethics, despite the obvious and growing importance
of the subject in the context of the protection of fundamental human rights, it is
68 ECtHR (GC), Odièvre v. France, judgment of 13 February 2003, § 29.
69 ECtHR, Jäggi v. Switzerland, judgment of 13 July 2006, § 37.
70 Ibid., § 40.
71 Ibid., § 42.
72 Ibid., § 43.
73 ECtHR, Mizzi v. Malta, judgment of 12 January 2006, § 112.
74 ECtHR (GC), S. and Marper v. the United Kingdom judgment of 4 December 2008, § 72.