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Decision no. 2011-173 QPC of 30 September 2011

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Mr Louis C. and others [Conditions for the performance of genetic testing on deceased persons for the purposes of filiation actions]

On 6 July 2011 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received from the Cour de Cassation (first civil chamber, decree no. 866 of 6 July 2011) an application for a priority preliminary ruling on the issue of constitutionality raised by Mr Louis C., Ms Jacqueline P. and Mr Lucien C., regarding the conformity of the last sentence of the fifth paragraph of Article 16-11 of the Civil Code with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Civil Code;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations made on behalf of the defendants by SCP Vincent-Ohl, Attorney at the Conseil d'État and the Cour de Cassation, registered on 25 July 2011;

Having regard to the observations of the Prime Minister, registered on 28 July 2011;

Having regard to the observations made on behalf of the applicants by SCP Waquet-Farge-Hazan, Attorney at the Conseil d'État and the Cour de Cassation, registered on 12 August 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Farge on behalf of the applicant and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing on 20 September 2011;

Having heard the Rapporteur;

1. Considering that Article 16-11 of the Civil Code lists the cases in which the identification of a person through DNA testing may be sought; that the fifth paragraph of this Article provides that in civil law, such identification may only be sought when executing a measure of inquiry ordered by a court seized of an action concerning questions of parentage, or the award or discontinuation of parent support; that it provides moreover that the express consent of the interested party must be obtained in advance; that pursuant to the last sentence of this fifth paragraph: "Unless explicitly agreed by the person during her lifetime, no identification through DNA testing can be performed after her death";

2. Considering that, according to the applicants, the prohibition of DNA testing on a deceased individual in civil proceedings concerning parentage violates the right to privacy and the right to conduct a normal family life; that moreover, the disputed provisions would establish a different treatment between men and women that would be in breach of the principle of equality before the law;

3. Considering that Article 34 of the Constitution provides: "The law determines the rules concerning··· the status and ability of people"; that on this basis, it is up to the legislator to determine the rules of evidence applicable to matters concerning questions of parentage, in particular during legal proceedings; that the legislator is at liberty at any time, when deciding on matters within its competence, to amend existing legislation or to repeal it and replace it, depending upon the circumstances, with other legislation provided that, in doing so, it does not infringe the legal guarantees set forth under constitutional law; that Article 61-1 of the Constitution, in the same manner as Article 61, does not grant the Constitutional Council the same general power of appreciation and decision making as that of the Parliament; that this Article only enables the legislator to rule on the compliance with a legislative provision regarding the rights and freedoms guaranteed by the Constitution;

4. Considering, on the one hand, that Article 2 of the Declaration of the Rights of Man and the Citizen of 1789 provides: "The aim of any political association is the preservation of the natural and imprescriptible rights of man. These rights are freedom, property, security, and resistance to oppression"; that the freedom proclaimed by this Article implies privacy; that, on the other hand, the right to conduct a normal family life results from the second paragraph of the Preamble to the 1946 Constitution which provides that: "The Nation provides the individual and the family with the conditions necessary to their development"; that finally, pursuant to Article 6 of the 1789 Declaration: “The law···must be the same for all, whether it protects or punishes”; that the principle of equality does neither prevent the legislator to settle different situations in different ways, nor does it derogate from equality in the general interest, provided that in both cases the resulting difference in treatment is directly related to the subject matter of the law providing for the different treatment;

5. Considering that the second paragraph of Article 310-3 of the Civil Code provides that when an action concerning parentage is initiated, "parentage may be proven or contested by many means, provided that the action is admissible"; that, nonetheless, during legal proceedings seeking either to establish or challenge parentage, or the award or termination of parent support, the contested provisions do not permit a deceased individual to be identified through DNA testing unless that person gave his express consent to the performance of such a measure of inquiry when he was still alive; that accordingly, where such consent is not given, the parties to the proceedings may not use DNA testing technology on the body of the deceased individual with whom a biological link is claimed or disputed;

6. Considering that deceased individuals are presumed not to have consented to identification through DNA testing, the legislator intended to prevent exhumations in order to ensure respect for the dead; that it is not for the Constitutional Council to substitute its appraisal for that of the legislator with regard to the consideration given in such matters to the respect due to the human body; that accordingly, the complaints relating to the lack of knowledge of privacy and the right to conduct a normal family life must be rejected;

7. Considering that pursuant to Article 325 of the Civil Code, the search for one's biological mother implies that the child establishes that he belongs to the alledged mother; that, thereafter, the fact that the contested provisions, concerning proof of parentage through identification by DNA testing applies principally when paternal filiation is challenged cannot be regarded as a difference in treatment that runs contrary to the principle of equality before the law;

8. Considering that the last sentence of the fifth paragraph of Article 16-11 of the Civil Code does not violate any right or freedom guaranteed by the Constitution,

HELD :

Article 1 – The last sentence of the fifth paragraph of Article 16-11 of the Civil Code is constitutional.

Article 2. – This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session of 29 September 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL, and Mr. Pierre STEINMETZ.

Announced on 30 September 2011.