Court/Judicial body: Supreme Court of the Dominican Republic
Date: August 25, 2010 CRC
Provisions: Article 7: Name and nationality Article 8: Preservation of identity Article 21: Adoption
Other international provisions:American Convention on Human Rights (Articles 3, 18)
Domestic provisions: Law 136-03 (Code System for the Protection of Fundamental Rights Children and Adolescents) Law no. 985 of September 15, 1945, Article 6 (on the establishment of parentage for children born out of wedlock with 5 years of birth)
Background: A child born out of wedlock, Altagracia Pereyra Oliva Gullien, sought to be legally recognized as the daughter of her late father, Simon Bolivar Pereyra, in order to claim her share of his estate. However, under Article 6 of Law no. 985-45, which regulates the procedure by which natural children can asset their rights to parental affiliation, parentage must be established within five years of birth. Now an adult, Altagracia was an illegitimate child and her mother did not legally establish that Simon Bolivar Pereyra was the legitimate father within five years of her birth; hence, she filed suit to challenge the statute of limitations for establishing parentage.
Issue and resolution: Filiation. The Supreme Court ruled the five year term limit under Article 6 of Law no. 985-45 unconstitutional and held that Altagracia was the legitimate child of Simon Bolivar Pereyra and end to her share of his estate as his child.
Court reasoning: The Court found that the right to a defined and legally established parental affiliation is fundamental, inalienable protected by both the Dominican Constitution and certain international treaties and conventions ratified by the Dominican Republic, including the Convention on the Rights of the Child and the American Convention on Human Rights. In addition to violating fundamental rights, the five-year limit also threatened to impair the bonds between children and their parents. For these reasons, claims initiated by children to establish parental affiliation should not be subject to time limitations.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN:Considering that, after the enactment of that law, our country has ratified several international instruments under which the Dominican government undertakes, among other provisions, to ensure the protection of basic rights and equality of all persons before the law without discrimination, whose rules to be ratified constitute a legal character binding up our constitutional system and part of what has been called the constitutional law, both the Convention on the Rights of the Child, Articles 7 and 8, as Articles 3 and 18 of the American Convention on Human Rights, ratified by the Dominican State, highlight that the importance of identity of every human being is clearly established, since it plays a role in the recognition of his law as a fundamental right. Whereas, the Dominican State, fulfilling its duty ensure the implementation of the rights and freedoms recognized in these international instruments, enacted Law no. 14-94 or Code for the Protection of Children and Adolescents, devoting it to basically the principles and norms contained in the United Nations Convention on the Rights of the Child, which Article 21, paragraph II of the amended legal body for the benefit the mother, within 5 years fixed by section 6 of that Act no. 985-45 for the exercise of the action in recognition of affiliation father, having in this sense that “the mother may carry sue the recognition of a child from birth to adulthood, “that, subsequently, the enactment of Law 136-03 dated August 7, 2003 or “Code System for the Protection of Fundamental Rights Children and Adolescents, “which repealed the Law No. 14-94 is devoted broadly the principles contained in the various international instruments ratified by the Dominican State in protection to minors, introducing in the legal text changes as it pertains to the limit for action in the exercise of judicial recognition of paternity. Considering that the last part of paragraph III of Article 63 of legal provision states, in regard to the exercise of action by the natural son, personally, that “the sons and daughters will claim affiliation at any time after coming of age, “the inalienable nature conferred on such action reaffirms in paragraph ‘a’ of Article 211 of that body of law, when consecrated ‘The right to claim affiliation not prescribed for children and daughters.’” Mothers may exercise this right during the minority of their children, that, in addition to the above, by application to mandated by Article 487 – paragraph, of the Code, is irrefutably established that Article 6 of Law 985-45. The court rules the time period for bringing an action in claim of paternal affiliation is repealed.
CRIN comments: CRIN believes that this decision is consistent with the CRC. As noted by the Court, children have the right to establish family relationships under Article 8 of the Convention and should never be prevented from seeking to establish legal parentage, whatever the status of their parents’ relationship at their time of birth might have been.
Citation: Simon Bolivar Pereyra Sorrentino vs. Oliva Altagracia Pereyra Gullien, Suprema Corte de Justicia, Sentencia del 25 Agosto de 2010
Link to full judgement: http://www.poderjudicial.gob.do/Reportepdf/reporte2006-187.pdf