Facts
The dispute opposes H. F. to R. B. and H. B. in a case of determination of paternity and fixation of maintenance contributions. The defendant, H. F., acknowledged having had relations with the child's mother during the critical period, which makes his paternity presumed. To contest this presumption, he requested a serological or anthropological-genetic expertise. The district court of Arbon set a deadline for the payment of an advance of CHF 4,000 for the expertise, under penalty of not proceeding with it. The defendant contested this decision, arguing that it violated the principle of the derogatory force of federal law and the official maxime in force in paternity determination proceedings.
The cantonal court rejected the defendant's appeal, who then filed a public law appeal with the Federal Court. The Federal Court admitted the appeal, but rejected the defendant's request, considering that the official maxime does not prevent the cantonal judge from requiring an advance payment for the probatory procedure.
Considerations
The Federal Court considered that the official maxime in force in paternity determination proceedings does not prevent the cantonal judge from requiring the defendant to pay an advance for the probatory procedure. The Federal Court recalled that the official maxime implies that the judge must investigate the facts ex officio and assess the evidence according to his free conviction.
The Federal Court also considered that the regulation of procedural costs is left to the discretion of cantonal law and that federal law does not contain any express provision that would exempt the parties…