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Hermida v. Berta

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Court/Judicial body: Supreme Court of the Dominican Republic
Date: May 24, 2006  CRC
Provisions: Article 2: Non-Discrimination Article 7: Name and nationality Article 20: Protection of a child without family
Domestic provisions: Civil Code (Articles 312 and 1352) Law 659 Civil Status Acts ( Article 335)

Case summary

Background: A Dominican man appealed against the decision of a court that identified him as the father of a child born out of wedlock. A paternity test indicated that there was a 99.99 per cent chance that he was the biological father of the child, but the man denied that he could legally be the child’s father. The relevant legislation provided that a child born to a married woman is presumed to be the child of her husband unless disproved (Art. 312 Civil Code), and children born under an adulterous relationship cannot be recognised (Art. 335 of Law 659).

Issue and resolution: Filiation; discrimination. The prohibition on the recognition of children born through adulterous relationships was outweighed by the right of the child to be recognised by his biological parents. The Court held that the man was the father of the child.

Court reasoning: The Court found that it would be “totally unfair and discriminatory” to deny the child the right to legally identify his biological father. The cited legislation discriminated against the child and denied him a father, and so was in violation of Article 5 of the Dominican Constitution, as well as Articles 2, 7 and 20 of the Convention on the Rights of the Child. The Court also ruled the use of DNA evidence was constitutional in determining paternity.
Excerpt citing the CRC and other relevant human rights instrumentsas translated by CRIN: The legal presumption (jure and de jure) enshrined in Article 312 of the Civil Code and the prohibition on recognising children born from adulterous relationships set out in Article 335 of the code are discriminatory. In the case of the boy Oscar Javier, the application did not proceed because it contravened Article 5 of the Constitution, according to which nobody can be obligated to do something which the law does not obligate him or her to do, nor to impede something which the law does not prohibit. The law is the same for everyone; it cannot order more than is fair and useful for the community, nor can it prohibit more than would be harmful. The type of relationship chosen by the parents cannot interfere with the child’s right to preserve their identity and to carry the surname of their parents, in accordance with Article 7 of the Convention on the Rights of the Child, which states that a child will be registered immediately after his or her birth and will have the right to a name from birth, to acquire a nationality, and as far as possible, to know their parents and be looked after by them. It would be totally unfair and discriminatory not to acknowledge that Oscar Javier is the son of Oscar Felix Perguero Hermida given that Article 2 of the Convention on the Rights of the Child protects the rights of all children without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. The appellant, basing his argument on alleged violations of Articles 1352 and 312 of the Civil Code and 335 of the Law on Civil Status, denied his paternity of the child Oscar Javier because he had been born within the marriage of the child’s mother with Ramón María Marcelo Capéllan. The court rejected the appeal, confirming the decision handed down by the Children’s Court with the view that the DNA analysis carried out on October 2, 2002 on the order of the aforementioned court revealed that the appellant could not be excluded as the possible father of the child, with 99.99 per cent probability that he is the parent of the child in question. According to the court, the jure and de jure presumption enshrined in Article 312 of the Civil Code constitutes discrimination in this case, for which reason, in addition to the proof and other facts and circumstances of the case, the application will not proceed because it is contrary to Article 5 of the Constitution and Articles 7 and 20 Convention on the Rights of the Child. (pages 513-515).

CRIN comments: CRIN believes this decision is consistent with the CRC. While presumption of paternity may make practical sense, children should always have the right, as far as possible, to know their parents. In order to realise this right, children must have access to proceedings to establish who their parents are, and should not be denied the ability to do so based solely on the parents’ relationship at the time of the child’s birth.

Citation: Sentencia del 24 May 2006, No. 18

Link to full judgement:…