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DADOUCH v. MALTA - 38816/07 [2010] ECHR 1140 (20 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1140.html
Cite as:
[2010] ECHR 1140
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FOURTH
SECTION
CASE OF DADOUCH v. MALTA
(Application
no. 38816/07)
JUDGMENT
STRASBOURG
20 July
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Dadouch v. Malta,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 29 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38816/07) against the Republic
of Malta lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Maltese national, Mr Mazen Dadouch (“the
applicant”), on 2 September 2007.
The
applicant was represented by Dr J. Brincat, a lawyer practising in
Malta. The Maltese Government (“the Government”) were
represented by their Agent, Dr S. Camilleri, Attorney General.
The
applicant alleged that the refusal to register his marriage based on
a request for a letter of nationality was in violation of Article 8
of the Convention alone and in conjunction with Article 14.
On
25 May 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant is a Maltese national who was born in Damascus, Syria, in
1967, and lives in Sliema, Malta.
A. Background of the case
In
1993 the applicant acquired Maltese citizenship by registration in
consequence of his marriage to a Maltese national. Subsequently, on
22 March 2002 the marriage was annulled by court order as it had
been found to be a marriage of convenience. However, the
applicant retained Maltese nationality according to the law in force
at the time.
On
30 July 2003 the applicant married a Russian national in Moscow.
In
the days following 30 June 2004 the applicant applied to the Public
Registry Office to have his marriage registered in Malta.
On
several occasions, notwithstanding the presentation of his Maltese
identity card and a Maltese passport, the Public Registry required
“as a matter of policy” that the applicant submit a
letter from the Department of Citizenship declaring that he
was a citizen of Malta.
According
to the Government the authorities also noted that the requisite
translation of the Russian marriage certificate presented by the
applicant had not been apostilled by the Ministry of Foreign Affairs
of Moscow.
Despite
his contention that the request for a letter from the Department of
Citizenship did not have a legal basis in domestic law, the applicant
requested the Department to issue the letter. The Head of Department
refused to issue such a letter, allegedly replying that he was
not bound to issue it then, if at all.
Following
the applicant’s request, by a decision of the Court of Revision
of Notarial Acts dated 31 May 2005, the Director of the Public
Registry was directed to register the marriage, upon the applicant
submitting his original act of marriage in Russian together with an
English translation authenticated by his lawyer.
The
applicant’s request remained unsatisfied notwithstanding this
decision.
On
5 April 2006 the decision of 31 May 2005 was revoked by the Court of
Appeal. The latter, while expressing doubts as to whether the
applicant could apply to the Court of Revision of Notarial Acts, held
that a Maltese passport was not conclusive evidence of citizenship.
Furthermore, the Director was vested with discretion to demand
documents which he considered reasonable to prove the authenticity of
what was submitted to him. The court therefore agreed that the
Russian certificate of marriage produced by the applicant was not
sufficiently authenticated evidence satisfying the Director of the
Public Registry, having regard to Article 244 (1) of the Civil Code
(see relevant domestic law, below).
B. The proceedings before the Civil Court
On
20 June 2005 the applicant instituted proceedings before the Civil
Court (First Hall) in its constitutional jurisdiction. He complained
that the refusal to register his marriage was in violation of his
Article 8 rights alone and in conjunction with Article 14.
It
appeared from the evidence given by an official employed at the
Marriage Registry that there were two reasons for the refusal to
register the marriage. Firstly, the documents presented by the
applicant had not been authenticated by the Ministry of Foreign
Affairs of Moscow, which is the competent authority to attach
apostilles to such public documents, and, secondly, that every person
who applied for registration was asked to produce a letter of
citizenship.
According
to the evidence of the relevant Minister, the request for such a
certificate did not result from a law or legal notice but from an
internal regulation. While in the course of the present proceedings a
circular, applicable to all Government departments, was issued
stating that Maltese passports could be accepted as proof of
citizenship, the Minister stated that a letter of citizenship was the
best evidence to prove citizenship at any precise moment.
On
2 May 2006, during these proceedings, the Head of the Nationality
Department also confirmed that the applicant was a Maltese citizen.
On
13 June 2006 the applicant withdrew his complaint in relation to
Article 14 taken in conjunction with Article 8.
On
10 October 2006, the court rejected the application, with legal costs
to be paid by the applicant. It held that Article 8 had not been
breached, since the Director of the Public Registry had not
categorically refused to register the marriage, but had merely
requested appropriate documentation. Moreover, Article 8 did not
extend to a general obligation on the part of a Contracting State to
respect the choice by married couples of the country of their
matrimonial residence and to accept the non-national spouse for
settlement in that country.
C. Proceedings before the Constitutional Court
On
11 October 2006, the applicant appealed to the Constitutional Court.
On
6 November 2006 the court invited the Director of the Public Registry
to indicate the law on which the Registry based its insistence on the
“letter of nationality”. The Director stated that it was
a matter of policy. The case was then adjourned to 13 November 2006
for the Head of the Nationality department to testify.
Meanwhile,
on 9 November 2006, the applicant was called upon by the Registry to
register the marriage. He was asked to submit the original or an
authenticated copy of his marriage certificate. No further documents
were requested.
On
13 November 2006 the marriage was registered on the basis of the
documents originally submitted by the applicant.
On
the same day, before the Constitutional Court, the appeal was
maintained as the Director of the Public Registry did not accept that
the first judgment should be revoked and the costs refunded to the
applicant.
On
9 March 2007, the Constitutional Court found that there had not been
a violation of Article 8 of the Convention. It held that the request
for a “letter of citizenship” was in accordance with law,
namely Article 244(1) of the Civil Code according to which the
Director of the Public Registry had to be satisfied that at least one
of the parties to the marriage was a Maltese citizen. Although an
identity card and a passport were prima facie evidence of nationality
they were not conclusive, especially when citizenship had been
obtained through registration (as in the case of the applicant) or
naturalisation, both being subject to revocation according to section
14 of the Maltese Citizenship Act (see relevant domestic law). The
Minister’s deposition in respect of the recently issued
circular was irrelevant, since responsibility for ascertaining the
compliance with the requirements of Article 244(1) was for the
Director of the Public Registry. Thus, the requirement of a letter of
nationality was in accordance with the law, pursued a legitimate aim
and was proportionate. However, the Constitutional Court noted that
from the witness testimony at the hearing of 2 May 2006, it was clear
that the applicant was a Maltese citizen; however, interdepartmental
lethargy had meant that the Director of the Public Registry only
called upon the applicant to register the marriage on 9 November
2006. Thus, the Court revoked the first-instance judgment in part by
ordering the costs to be shared between the parties. It further noted
that the applicant had withdrawn his Article 14 complaint and
consequently no appeal lay against it.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Of marriage and registration
Regarding
marriages in foreign countries, Article 244 of the Maltese Civil
Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads
as follows:
(1) Any act of birth, marriage or death of a citizen of
Malta drawn up or registered in a foreign country by a competent
authority in that country, ... may, at the request of any person
interested and upon the Director of the Public Registry being
satisfied of the authenticity of such act, be registered in these
Islands in the same manner as if it were an act drawn up by any of
the persons mentioned in this Title.
(2) The person making the request shall, for the
purposes of registration, deliver to the Director the act in respect
of which such request is made.
In
this respect, Article 242 of the Civil Code reads as follows:
(1) The Director shall not accept any act which is not
written in clear and legible characters, or which contains
abbreviations, or which may appear to him to be otherwise defective
or irregular.
(2) In any such case, the act shall be presented by the
Director to one of the Visitors of notarial acts, who, after hearing,
if necessary, the person by whom the act has been made, shall
determine the manner in which, according to law, the act is to be
drawn up.
(3) The Director may not refuse to accept any act which
is countersigned by one of the said Visitors.
In
respect of registration and the validity of marriages, sections 12
and 18 of the Marriage Act, Chapter 255 of the Laws of Malta, provide
as follows:
Section 12
(1) Registration is not essential to the validity of
marriage.
(2) Registration shall not operate to validate a
marriage which, independently of such registration, is null.
(3) A marriage shall not have effect for any purpose of
law unless and until the appropriate act of marriage is completed and
delivered for registration in accordance with the provisions of
articles 293 and 294 of the Civil Code.
Section 18
A marriage, whether celebrated in Malta or abroad, shall
be valid for all purposes of law in Malta if -
(a) as regards the formalities thereof, the
formalities required for its validity by the law of the country where
the marriage is celebrated are observed; and
(b) as regards the capacity of the parties, each
of the persons to be married is, by the law of the country of his or
her respective domicile, capable of contracting marriage.
30. Article
627 of the Code of Organisation and Civil Procedure (“COCP”)
provides a list of documents requiring no proof of authenticity other
than that which they bear on the face of them. Sub-article (f) refers
to the certificates issued from the Public Registry Office.
31. According
to a notice published on the Government website by the Department for
Citizenship and Expatriate affairs, dated February 2007, regarding
registration of foreign certificates concerning citizens of Malta at
the Public Registry, the documents required for registration of a
marriage abroad by a citizen of Malta are as follows: 1) marriage
certificate, 2) birth certificate 3) father’s birth certificate
4) parents’ marriage certificate 5) Maltese passport.
According
to section 14 of the Maltese Citizenship Act, Chapter 188 of the Laws
of Malta, as in force since 1975, the Minister may by order deprive
of his Maltese citizenship any citizen of Malta who is such by
registration or naturalisation if he is satisfied that the
registration or certificate of naturalisation was obtained by means
of fraud, false representation or the concealment of any material
fact or on any other of an exhaustive list of grounds.
B. The Hague Convention Abolishing
the Requirement of Legalisation for Foreign Public Documents (5
October 1961)
According
to The Hague Convention, apostilles may only be issued by a Competent
Authority designated by the State on whose territory the public
document has been executed. Its Article 6 lists the competent
authorities, which in so far as relevant in respect of Russia, reads
as follows:
The Ministry of Justice of the Russian Federation;
The General Prosecutor’s Office of the Russian
Federation;
The Ministry of the Interior of the Russian
Federation;
The Register Offices of the executive bodies in subjects
of the Russian Federation;
The Federal Archives Agency and the authorised bodies
for archives of the executive power in subjects of the Russian
Federation;
The Federal Supervision Service for Education and
Science;
The Ministry of Defence of the Russian Federation on
official archive documents on military service (employment) in the
Armed Forces of the Russian Federation, the Armed Forces of the USSR
and the Joint Armed Forces of the Commonwealth of Independent States
(CIS), issued in the Russian Federation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained that the refusal to register his marriage based
on a request for a letter of nationality was an interference which
was not in accordance with the law and not necessary in a democratic
society and therefore in breach of Article 8 of the Convention, which
reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The
applicant complained that the refusal to register his marriage based
on a request for a letter of nationality was an interference which
was not in accordance with the law and not necessary in a democratic
society for the protection of one of the aims set forth in paragraph
two of Article 8. The registration of the marriage, although not
obligatory or necessary for its validity, was a legal right,
indispensable for the purposes of establishing a family in Malta. It
constituted erga omnes proof that the State recognised that
the husband and wife were lawfully married. The applicant submitted
that whenever a Government department required proof of marriage, a
copy of the original act of marriage would not suffice, unless the
marraige had been registered by the Public Registry. According to
Maltese law (Article 627 (f) of the COCP), certification
following registration of a marriage required no further proof and
could not be contested. Registration was necessary for the purposes
of the Immigration Act, allowing his wife to be an exempt person as
opposed to a prohibited immigrant, and dispensing with the need for a
visa, a matter which to date had been concessionary. Registration
would also have allowed her to work (without requiring a permit) and
to have the status of a lawfully wedded wife. Furthermore, it was
necessary for the purposes of the Social Security Act, the Income Tax
Act, and to obtain free medical aid for his wife, all of which
required official proof of marriage. Moreover, only a recognised
spouse was able to apply for citizenship once the relevant criteria
had been fulfilled.
He
submitted that the only legal requirement arising out of Article 244
(1) was that the documents presented were authentic and they were, so
the Director had no real discretion in the matter. No proceedings had
ever been issued against the applicant for revocation of citizenship
and therefore no doubts about the validity of his passport should
have arisen. In practice, not all citizens needed to produce a letter
of citizenship in order to register their marriage. In fact, in
accordance with the Marriage Act, Catholic marriages were registered
by the parish priest and not by the parties.
As
to the authenticity of the documents submitted, the applicant
submitted that the competent authority to apostille documents in
Malta was the Ministry of Foreign Affairs. Russia had seven listed
competent authorities, one of which had apostilled the relevant
documents as evidenced by the documents submitted to the Court. Thus,
this criterion had been satisfied immediately. Moreover, the
procedure followed by the authorities to verify these documents was
not in accordance with the Hague Convention 1961 regarding
apostilles.
Moreover,
the registration had eventually been effected on the basis of the
same documents submitted initially and the Constitutional Court
itself admitted that interdepartmental lethargy had caused this
situation.
The
applicant submitted that there had been no legitimate aim justifying
this denial. There had never been any doubt about any persisting
previous marriage or any other crime, the only issue being proof of
the applicant’s nationality.
The
Government submitted that the fact that a marriage did not qualify
for registration according to the Civil Code did not necessarily mean
that it would not be recognised as a valid marriage since section 18
of the Marriage Act would then be applicable (see relevant domestic
law). The Government alleged that registration had no effects for the
purposes of law. Allowing registration of marriages contracted
outside Malta only served practical purposes, in that the relevant
departments would not require further proof when presented with
certificates authenticated by the Public Registry. They added that
the Government did not contest the marital status of persons marrying
abroad and that registration of the marriage was not a requirement
for the application of the relevant provisions of the Immigration
Act, Social Security Act or Tax Act.
Moreover,
the Government submitted that there had not been any interference
with the applicant’s private and family life. Although there
was no right to establish a family in any particular jurisdiction,
the applicant was allowed to continue to reside in Malta and to
cohabit with his spouse. The fact that the Maltese authorities
insisted that the conditions laid down by domestic law for the
registration of a marriage celebrated by a Maltese citizen abroad had
been satisfied could not amount to an interference. Indeed, once the
authorities had acquired proof of citizenship through the deposition
of one of the witnesses from the Citizenship Department and had
verified the authenticity of the marriage certificate with the
Maltese Embassy in Russia the applicant’s marriage was then
duly registered.
Without
prejudice to the above, the Government submitted that any
interference would have been in accordance with the law, namely
Article 244 (1) of the Civil Code which required the Director of
the Public Registry to be satisfied with the authenticity of the
marriage act produced. As to the citizenship prerequisite, this was
not at the discretion of the Director. Proof of citizenship was
necessary. Thus, the Director required a declaration from the
Department of Citizenship that at the relevant time the applicant was
a citizen of Malta. The Government further questioned the
existence of the notice (see relevant law part). They submitted in
this connection that even if such notice existed, it would not have
had the force of law.
According
to the Government, the alleged interference had a legitimate aim,
namely the prevention of disorder and crime and the protection of the
rights and freedoms of others. Article 244 of the Civil Code was
intended to preserve order in matrimonial unions, to safeguard others
who have entered into the marriage bond, to prevent bigamy in a
society founded on monogamous marriage and to provide certainty in
respect of the personal status of the citizens concerned.
The
Maltese authorities exercised their discretion reasonably, carefully
and in good faith, and on relevant and sufficient grounds. Bearing in
mind the margin of appreciation of the State, the alleged
interference was necessary in a democratic society. Verification of
the relevant conditions required caution and therefore some time for
its completion. Its prolongation and the consequential unnecessary
delay were caused by the applicant who had instituted proceedings.
2. The Court’s assessment
a) Whether there has been interference
The
Court recalls that the concept of “private life” is a
broad term not susceptible to exhaustive definition. It covers the
physical and psychological integrity of a person. It can therefore
embrace multiple aspects of the person’s physical and social
identity. Elements such as, for example, gender identification, name
and sexual orientation and sexual life fall within the personal
sphere protected by Article 8. Beyond a person’s name, his or
her private and family life may include other means of personal
identification and of linking to a family. An individual’s
ethnic identity must be regarded as another such element. Article 8
protects in addition a right to personal development, and the right
to establish and develop relationships with other human beings and
the outside world (see, S. and Marper v. the United Kingdom
[GC], nos. 30562/04 and 30566/04, § 66, 4 December 2008,
and the case-law cited therein). The Court further recalls that it
has previously considered that an individual’s inability to
seek recognition in law of a de facto separation from a spouse
concerned private and family life (see Airey v. Ireland, 9
October 1979, §§ 32-33, Series A no. 32) and that
decisions to nullify an applicant’s marriage had
implications for her legal status and in general for her private life
(see Benes v. Austria, (dec.), no. 18643/91, 6 January 1992).
The
Court finds no reason why a State’s acknowledgment of the real
marital status of a person, be it, inter alia, married,
single, divorced, widow or widower, should not form part of his or
her personal and social identity, and indeed psychological integrity
protected by Article 8. It therefore considers that registration of a
marriage, being a recognition of an individual’s legal civil
status, which undoubtedly concerns both private and family life,
comes within the scope of Article 8 § 1.
It
is true that where immigration is concerned, Article 8 cannot be
considered to impose on a State a general obligation to respect the
choice by married couples of the country of their matrimonial
residence and to authorise family reunion in its territory (see Gül
v. Switzerland, judgment of 19 February 1996, Reports of
Judgments and Decisions 1996-I, § 38 and Pejcinoski v.
Austria (dec.) no. 33500/96, 23 March 1999). However, the Court
notes that refusal to register a marriage may have consequences which
go beyond immigration and may affect the private or family life of
both nationals and foreigners.
The
Court notes that the parties disagree as to the effects of marriage
registration. While Maltese law (section 12 of the Marriage Act) is
clear that the absence of registration does not give rise to any
legal effects (see, conversely, Benes v. Austria,
(dec.), cited above), the Court cannot ignore the practical
repercussions such an act may have on everyday life. As acknowledged
by the Government, the relevant departments would not require further
proof of marriage when a document from the Public Registry was
presented to them. In consequence, lack of such documentation would
make the processing of certain requests, such as applications for
social or tax benefits, lengthier and more complex, if at all
possible. The same would hold true for verifications required in the
private domain, such as the employment sector. The refusal to
register the applicant’s marriage would clearly have had an
impact on his private life. It follows that the lack of registration
or a substantial delay in such registration, such as a delay
amounting to over twenty-eight months as in the present case,
constitutes interference within the meaning of Article 8 of the
Convention.
Such interference will be in breach of Article 8 of
the Convention unless it can be justified under paragraph 2 of
Article 8 as being “in accordance with the law”, as
pursuing one or more of the legitimate aims listed therein, and as
being “necessary in a democratic society” in order to
achieve the aim or aims concerned (see Maslov v. Austria [GC],
no. 1638/03, § 65, 23 June 2008).
b) whether the interference was in
accordance with the law
The Court reiterates that it is well established in
the case-law that the term “in accordance with the law”
implies - and this follows from the object and purpose of Article 8 -
that there must be a measure of legal protection in domestic law
against arbitrary interference by public authorities with the rights
safeguarded by Article 8 § 1 (see Copland v. the United
Kingdom, no. 62617/00, § 45, ECHR 2007 IV). The
expression also refers to the quality of the law in question,
requiring that it be accessible to the persons concerned and
formulated with sufficient precision to enable them – if need
be, with appropriate advice – to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given
action may entail (see Onur v. the United Kingdom, no.
27319/07, § 48, 17 February 2009).
The
Court notes that the domestic courts held that the refusal was in
accordance with Article 224 of the Civil Code. In the present case,
the Court has considerable doubt whether the law, in particular, in
so far as it concerned proof of citizenship, satisfied the quality
requirements of precision and forseeability. However, the Court does
not find it necessary finally to decide this question since, even
assuming that the interference was in accordance with the law within
the meaning of Article 8 of the Convention, it still has to be
determined whether the refusal was “necessary in a democratic
society” in order to achieve a legitimate aim. It will revert
to that matter.
c) whether there was a legitimate aim
While
it is difficult to perceive how the refusal to register the
applicant’s marriage could prevent bigamy or ensure certainty
in respect of personal status as submitted by the Government (see
paragraph 45 above), the Court is prepared to accept that national
regulation of the registration of marriage may serve the legitimate
aim of the prevention of disorder and the protection of the rights of
others, as contended by the Government.
d) whether the measure was necessary in a
democratic society
The
Court reiterates that it is primarily for the national legislation to
lay down rules regarding the validity of marriages and to draw the
legal consequences (see, mutatis mutandis, Benes v Austria
(dec.), cited above). The same is true of procedures relating to the
registration of such marriages.
The
Court notes that apart from the issue as to whether the documents
submitted by the applicant fulfilled formal requirements, the
Government have not given any reason justifying the need in a
democratic society for refusing registration of the applicant’s
marriage for over two years.
In
the present case, even assuming the marriage act itself required
further verification, the Court considers that the need to study the
Hague Convention to verify whether the marriage certificate had been
apostilled or, alternatively, to carry out further checks with the
relevant embassy, as was eventually done by the Government, could
have been conducted in a more timely manner.
Similarly,
as regards the certification of the applicant’s citizenship,
the Court is of the view that since the applicant was in possession
of a valid Maltese passport, a presumption of his Maltese nationality
arose. It considers that in circumstances where a person’s
nationality is certified by means of his or her passport, the onus of
proving that the information contained in their passport is not
conclusive of nationality shifts to the authorities. Thus,
if the authorities believed that the applicant might have
renounced his Maltese citizenship, it was for them to verify the
matter with the relevant department and within an appropriate
time-frame, rather than to require the holder of a valid Maltese
passport to prove that he still retained Maltese nationality.
However, even assuming that it was acceptable to request
corroboration of such evidence in the case of citizenship obtained
through registration (as in the case of the applicant) or
naturalisation, which are subject to revocation (see paragraph 26
above), the Court does not accept that such corroboration
necessitated such a considerable delay. It notes that the delay
persisted during the domestic proceedings and verification was
eventually satisfied through the witness testimony of a person
working in the relevant Government department. The Court further
observes that the applicant had attempted to obtain a letter of
citizenship, notwithstanding the precarious legal basis for such
requirement, but the authorities refused to issue such a letter.
Thus,
the Court rejects the Government’s argument that the delay was
due to the applicant’s decision to institute proceedings.
Indeed, the Constitutional Court itself admitted that the delay at
issue was a result of interdepartmental lethargy (see paragraph 26
above); the Government also conceded that the procedure had been
unnecessarily prolonged (see paragraph 46 above).
In
consequence, in the circumstances of the instant case, the Court
finds that the denial of the registration of the applicant’s
marriage for a period of over two years was a disproportionate
interference with his Article 8 rights.
Therefore,
the Court finds that there has been a violation of Article 8 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLE 8 OF THE CONVENTION
The
applicant complained that the treatment he endured and the reasoning
of the Constitutional Court were discriminatory in that this
requirement only applied to citizenship acquired through
naturalisation or registration and not to citizenship by birth. He
relied on Article 14 in conjunction with Article 8 of the Convention.
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
In
so far as the complaint is directed at the applicant’s
treatment by government departments, the Court notes that the
applicant withdrew his complaint before the constitutional
jurisdictions (see paragraph 19 above).
It
follows that this part of the complaint must be rejected for
non-exhaustion of domestic remedies pursuant to Article 35 §§
1 and 4 of the Convention.
In
so far as the complaint is directed at the reasoning of the
Constitutional Court that citizenship obtained through registration
or naturalisation was different to citizenship by birth, the Court
considers that even assuming that this complaint can be detached from
the previous one, it is not necessary to consider whether the
applicant was required to exhaust domestic remedies in this respect,
since the complaint is in any case inadmissible for the following
reasons.
The
Court notes that the Constitutional Court only referred to the
position at law, namely section 14 of the Maltese Citizenship Act,
which provides that any citizen of Malta who is so by registration or
naturalisation can be deprived of such citizenship in particular
circumstances (see paragraph 32 above). The substance of this
provision is not contested by the applicant in these proceedings; nor
is the applicant arguing that he has been treated differently to
others who have brought similar proceedings before the Constitutional
Court. The Court considers that the mere fact that the domestic court
had made such a statement does not in any way amount to
discriminatory treatment which may raise an issue under Article 14.
It
follows that this part of the complaint is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected under Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 23,996.23 euros (EUR) in respect of pecuniary
damage. This included EUR 18,470 for loss of his wife’s
earnings for the family, EUR 256.23 covering eleven visas and EUR
5,000 covering the consequent travels to exit and enter Malta.
The
applicant further claimed EUR 15,000 for non-pecuniary damage as a
result of the anguish he and his wife had suffered and the fact that
they had to delay having children because of their precarious
situation.
The
Government submitted that the applicant’s wife was not a party
to the proceedings and that in any case there was no proof that she
had any employment opportunities during the relevant period.
Similarly, the visa and travelling expenses, which had no link of
cause and effect with any violation found, only related to her and
not the applicant. Moreover, the Government submitted that the
applicant’s wife’s visits to Russia were not a result of
any expulsions by the authorities.
As to non-pecuniary damage, the Government submitted that there was
no unwillingness on the part of the Maltese authorities to grant
extensions for her stay in Malta when applied for. This claim should
therefore be rejected.
Even
assuming that there was a causal link between the violation found and
the pecuniary damage alleged and that the claim for loss of earnings
is not hypothetical, the Court notes that the applicant has failed to
substantiate his claims by providing any evidence of the said losses
except in the case of the visa expenses. The Court, however, notes
that only six of the visas submitted by the applicant refer to the
relevant period and that according to the payment receipts submitted
these have been paid by his wife who was not a party to either these
proceedings or the domestic ones. The Court therefore rejects these
claims. On the other hand, bearing in mind the length of the delay in
registering the said marriage which is the basis of the violation
found, the Court awards the applicant EUR 3,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed a total of EUR 5,290.12, covering the costs
and expenses incurred before the domestic courts as per taxed bills
of costs, namely EUR 310 for the proceedings before the Visitor of
Notarial Acts and EUR 1,480.12 for the constitutional redress
proceedings, and those incurred before the Court amounting to EUR
3,500.
The
Government submitted that these proceedings could have been avoided
had the applicant produced the required letter of citizenship. In any
event, the amount claimed was excessive and the sum of EUR 1,000
would sufficiently cover these proceedings.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the above criteria and the information in its possession, notably the
fact that the applicant did not submit any evidence substantiating
the claims and the absence of details as to the number of hours
worked and the rate charged per hour, the Court is not convinced that
all the costs incurred in the proceedings before it were reasonable
as to quantum. Moreover, since the Court has only found a violation
of Article 8 and has rejected the complaint under Article 14, the
Court considers it reasonable to award the sum of EUR 3,000 covering
costs under all heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 8
concerning the failure to register the applicant’s marriage
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
8 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 3,000 (three thousand euros)
plus any tax that may be chargeable, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 July 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
