CASE OF MIZZI v. MALTA
Preliminary objection dismissed (estoppel);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 14+6-1 and 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant was born in 1936 and lives in Bidnija (Malta). 9. The applicant is a well-known businessman in Malta. On 29 December 1963 he married a Maltese national, X, in a Catholic ceremony. In 1966 X became pregnant; at that time she was still living together with the applicant, who was aware of the pregnancy. In March 1967 the applicant and X separated and stopped living together. On 4 July 1967 X gave birth to a child, Y. 10. The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test, although such a test would not have been conclusive under Maltese law, which did not allow him to institute an action to rebut the legal presumption that he was Y’s father. He was registered as the natural father of the child. 11. A few months after Y’s birth, X refused to carry out the blood test. This behaviour intensified the applicant’s suspicions regarding the child’s paternity. He alleged that he distanced himself completely from Y and, although legally obliged to pay maintenance for her until she reached the age of majority, he had no relationship with her. This is disputed by Y (see “D. The statements by Y and by the applicant” below). 12. The applicant legally separated from X on 2 March 1968 by means of a contract of voluntary separation. Subsequently the marriage was annulled by a decree of the Court of Appeal of the Vicariate of the City of Rome on 24 April 1972. 13. According to the applicant’s version of events, on an unspecified date after 1993 Y contacted him and volunteered to undergo a blood test. Scientific examinations were carried out in Switzerland and concluded that the applicant was not Y’s biological father. However, in a written statement attached to the Government’s observations on the merits, Y declared that the DNA test had been carried out in 1990 and not in 1993. She further stated that the results of this test had never been shown to her. 14. On 1 November 1996 the applicant lodged an application with the Civil Court (First Hall), seeking a declaration that notwithstanding the provisions of the Maltese Civil Code, he had a right to proceed with an action for disavowal of paternity. 15. The applicant alleged that the right to respect for his private and family life included the right to have family relationships governed by biological certainty and not by a legal presumption conflicting with the reality of the facts. He considered that the lack of any remedy in that respect violated Article 8 of the Convention, as interpreted by the Court in the case of Kroon and Others v. the Netherlands (judgment of 27 October 1994, Series A no. 297-C). 16. In submissions filed with the Civil Court the applicant also invoked Articles 6 and 14 of the Convention, alleging a potential violation of his right of access to a court and his right not to be discriminated against vis-à-vis the mother of the child, the child herself or any third parties who, unlike the betrayed husband, were free to deny legitimacy without being subject to any time-limit. 17. In a judgment of 30 May 1997 the Civil Court allowed the applicant’s application. It observed that Articles 70 and 73 of the Civil Code had never allowed him to adduce scientific and genetic evidence to prove that the child borne by his former wife was not in fact his daughter. Therefore, there had been a violation of Article 8 of the Convention. 18. The Civil Court considered that the status of father was intimately linked with private life. Therefore, laws establishing how ties of filiation could be created and dissolved could interfere with the right guaranteed by Article 8 of the Convention. It furthermore observed that national law had never allowed the applicant to adduce scientific evidence in order for the family relationship in question to be governed by biological certainty and not by a legal presumption. In fact, under Article 70 of the Civil Code, as in force at the relevant time, the father could only repudiate paternity on the grounds either of physical impossibility of cohabitation or of legal separation during the possible period of conception. Moreover, the husband could not repudiate a child on the ground of adultery, except where the birth had been concealed from him. As the applicant had been cohabiting with X at the time of Y’s conception and had been aware of her birth, no action for disavowal could have been brought within the period of three months from the date of the birth as set forth in the relevant domestic provisions. It was true that the Civil Code had been amended in 1993, and that under the new Article 70 § 1 (d), the husband was also allowed to repudiate a child on the ground of adultery subject to the production of further evidence, including genetic tests, ruling out his paternity of the child. However, under Article 73 of the Civil Code, such an action should have been brought within six months from the date of the birth, and by 1993 that period had already expired. 19. In the Civil Court’s view, such interference could not be justified in terms of paragraph 2 of Article 8 of the Convention. It emphasised that in the case of Kroon and Others v. the Netherlands the European Court had stated that respect for family life required that biological and social reality should prevail over a legal presumption. This finding dispensed the Civil Court from ascertaining whether the other rights relied on by the applicant had also been infringed. 20. The Attorney General appealed against the judgment of 30 May 1997 to the Constitutional Court. A third-party appeal was also lodged by Y. 21. In a judgment of 15 January 2002 the Constitutional Court allowed the appeals by the Attorney General and Y and set aside the impugned judgment. 22. It observed that even before the 1993 amendments the Civil Code had not precluded the taking of genetic and scientific tests to establish whether a person was the father of a child or not. In fact, Article 73 of the Code simply provided that adultery alone was an insufficient basis for bringing an action to repudiate paternity, the presence of another element being necessary, namely that the birth had been concealed from the person legally designated as the father. Only after this circumstance had been established could the “father” produce other evidence, including scientific material. The reason for this limitation of the husband’s right to proceed with an action for repudiation had been the stand in favour of the status of legitimacy, summed up by the presumption “pater is est quem iustae nuptiae demonstrant”. The ratio legis remained the same even after the 1993 amendments, which allowed the husband to repudiate the child on the basis of adultery and scientific tests even if the birth had not been concealed from him (Article 70 § 1 (d) of the Civil Code). In any case, scientific tests alone merely constituted evidence corroborating other elements, and they had never been sufficient and decisive to disavow paternity, the husband being obliged to prove the adultery or the concealment of the birth. 23. The Constitutional Court noted that the applicant was in reality claiming a right to determine paternity uniquely on the basis of biological certainty resulting from scientific proof, independently of any other requirement imposed by the legislator and without any time-limit. It was true that scientific tests, whose results were apparently ascertainable and accessible, could be the most conclusive; however, in the Constitutional Court’s view, this was not a good reason to exclude certainty reached by means of other evidence. 24. The Constitutional Court examined whether the domestic law had struck a fair balance between the husband’s right to know whether or not he was the child’s father and the interests of the child in enjoying certainty as to his or her legal status. It considered that according to today’s social trends, the aim of the interference complained of was the protection of children in the enjoyment of their family ties rather than the protection of the status of legitimacy. The issue raised by the applicant concerned a conflict between factual reality and legal certainty, a matter which was the subject of debate in many other countries. The Constitutional Court noted that the Kroon and Others judgment did not deny a margin of appreciation to the State authorities and that the European Court had not made a statement on the conformity of the provisions of Dutch law with the Convention, preferring to ruleThe contested judgment had simply followed the position taken in the Kroon and Others judgment, the facts of which, however, were completely different from those of the present case, in which both X and Y disagreed with the action taken by the applicant and the “social reality” enjoyed by Y corresponded to her birth certificate. 25. The Constitutional Court moreover pointed out that in the case of Rasmussen v. Denmark (judgment of 28 November 1984, Series A no. 87) the Court had considered that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child, and had consequently found no violation of Article 8 of the Convention. That approach had subsequently been confirmed by the European Commission of Human Rights in the cases of B.H. v. Austria (application no. 19345/92, decision of 14 October 1992) and M.B. v. the United Kingdom, concerning the refusal to order a blood test (application no. 22920/93, decision of 6 April 1994), as well as by the Court in the case of Yildirim v. Austria ((dec.), no. 34308/96, 19 October 1999). 26. In the light of the above, the Constitutional Court considered that the interest in having biological and social reality prevail over legal presumptions should be balanced against equally valid principles and values, such as the interests of the offspring, the identity of the family nucleus and the stability of society. This vindicated the right of the State to impose, within its margin of appreciation, certain limits on the use of an action to deny paternity, which the Constitutional Court could review only if they amounted to serious interference with the husband’s fundamental rights. 27. The Constitutional Court finally observed that the ideal situation was one in which legal certainty corresponded to factual reality. It therefore suggested that the domestic provisions be constantly kept under the legislator’s scrutiny to be refined and updated as and when necessary, taking into account developments in science, changes in the family and social trends. 28. Attached to their observations on the merits, the Government produced a statement by Y, in which she declared that she had used the applicant’s name for thirty-seven years and would like to continue to do so for the rest of her life. Y also stated that the applicant used to visit her during the first year of her life; he had provided maintenance for her upbringing and had paid a sum for her wedding expenses. Y had been invited several times to parties at the applicant’s house and on one occasion she had been asked to go upstairs to greet the applicant’s father. On another occasion, Y had played tennis with the applicant at his private house in Bidnija. At some point between 1990 and 1996 the applicant had invited Y and her son to spend a day at his house by the pool. On that occasion, he had given her son a present. 29. Y declared that she had undergone the blood test in March 1990 at the applicant’s request. At that time she had had no doubt that the applicant was her father. Her intentions were based on purely emotional factors and not on financial considerations. Y alleged that she did not believe the applicant’s statement that she was not his daughter and added that she had never been shown the results of the DNA test. She felt that the applicant was simply trying to find some justification for the fact that he had not always treated her like a daughter. The reasons behind the applicant’s legal actions were probably of a merely financial nature. The allegations made in court had caused Y further suffering. 30. In response to Y’s arguments, the applicant produced a written statement in which he declared that, having suspected that his wife was having affairs during their marriage, he had not been happy when he had been informed that X was pregnant. The applicant had separated from X several months before Y’s birth and had been informed of the birth a few weeks after it had happened. The applicant had not wanted to sign the declaration of birth and had delayed the matter for months. He had eventually been incorrectly led to believe that as the presumed father, he was the only person who could declare the birth; moreover, pressure had been put on him by X and her father, who had promised that a blood test would be carried out. The applicant had asked whether the blood test could be included as a condition in the contract of separation, but he had abandoned that idea in order not to damage X’s reputation. Four months after the signature of the contract of separation, the applicant had been informed that X had changed her mind as to the blood test. He had therefore declared that he would not regard Y as his own daughter. 31. The applicant had included access rights in the separation contract and had actually visited Y during the first year of her life because he had not been sure about the results of the blood test. However, he had stopped the visits when it became clear that the blood test would not be carried out and he had never used his right to take Y to his home. The applicant had not seen Y again until she was about twenty years old, when a friend of his had brought her to one of his parties without informing him beforehand. There had been around one hundred guests at the party. The applicant had not recognised Y on that occasion. She had come to parties organised by the applicant three or four more times, always as an uninvited guest. The applicant did not remember whether he had invited her to greet his father, but pointed out that it had been common for his guests to visit his father, who was living with him. 32. The applicant submitted that he had shown the results of the blood tests to Y; however, he had kept the documents for himself. He would have given her a copy had she so requested. 33. On one occasion, “as a matter of courtesy”, the applicant had invited Y for lunch. Y had asked whether she could bring her son and the applicant had replied that that was possible. On that occasion, the applicant and Y had discussed Y’s real father’s identity. 34. The applicant had not seen Y again after this lunch. She had never been treated as a granddaughter by the applicant’s parents and the members of the applicant’s family had not had any direct contact with her. She had never attended family parties or family funerals and had not been given the applicant’s deceased mother’s jewellery (as would be customary in Malta if she were the applicant’s daughter). The applicant had never felt like a father to Y and could not see how she could have felt like a daughter to him. They had seen each other a few times in nearly thirty years and always in the company of third persons. Y had never called the applicant “dad”. 35. The applicant submitted that he had included maintenance for Y in the contract of separation because he was in any case obliged to pay for it. The applicant had also felt obliged to contribute to Y’s marriage expenses, but had not been invited to the wedding. 36. Before the 1993 amendments, the relevant Articles of the Maltese Civil Code read as follows: “A child conceived in wedlock is held to be the child of the mother’s husband.” “The husband can repudiate a child conceived in wedlock (a) if he proves that during the time from the three hundredth day to the one-hundred-and-eightieth day before the birth of the child, he was in the physical impossibility of cohabiting with his wife on account of his being away from her, or some other accident; or (b) if he proves that during the said time he was legally separated from his wife ...” “The husband may not repudiate a child on the ground of adultery, except where the birth shall have been concealed from him, in which case he shall be allowed to prove, even in the action for disavowal, both the adultery and the concealment, as well as all other circumstances tending to show that he is not the father of the child ...” “Where it is competent to the husband to bring an action to disown a child, he must bring such action (a) within three months from the day of the birth, if he was then in Malta; (b) within three months of his return to Malta, if he was absent at the time of the birth; (c) within three months of the discovery of the fraud, if the birth was concealed from him ...” 37. From 1 December 1993 (see Act XXI of 1993) a number of amendments were made to the Civil Code. In particular, to the cases in which the husband may repudiate a child conceived in wedlock was added the following (Article 70 § 1 (d) of the Civil Code): “if he proves that during the ... time [from the three hundredth day to the one hundred and eightieth day before the birth of the child] the wife had committed adultery or that she had concealed the pregnancy and the birth of the child, and further produces evidence of any other fact (which may also be genetic and scientific tests and data) that tends to exclude such paternity.” 38. Moreover, the periods set down in Article 73 of the Civil Code were raised to six months. 39. By Article 77 of the Civil Code, the legitimacy of a child born in wedlock may be impeached by any interested person if he or she proves that, during the time from the three hundredth day to the one hundred and eightieth day before the birth of the child, it was physically impossible for the husband to have been cohabiting with his wife. This action is not subject to any time-limit. 40. According to the case-law of the domestic courts, a child has the right to challenge his or her paternity without restrictions when the status attributed by the birth certificate conflicts with the factual reality (see the judgment of the Court of Appeal of 14 January 1952 in the case of Antonio Scerri Gauci v. Dr G. Scicluna). 41. By Articles 616 and 620 of the Civil Code, the applicant’s daughter is entitled, as a legitimate descendant, to inherit at least one-third of the applicant’s estate, which is due in full ownership and cannot be encumbered by any burden or condition. As a consequence of the amendments introduced in the Civil Code by Act XVIII of 2004, which entered into force on 1 March 2005, if the applicant dies without having made a will or if his will is declared invalid for any reason, Y, as his only child, will be entitled to his entire estate. 42. Until the child’ reached the age of majority, the applicant was obliged to provide maintenance for his daughter. Should the latter in future become unable to maintain herself, alone or with the help of her husband and children, the applicant would once again become liable to the obligation of maintenance.