CASE OF DADOUCH v. MALTA
Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant is a Maltese national who was born in Damascus, Syria, in 1967, and lives in Sliema, Malta. 6. 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. 7. On 30 July 2003 the applicant married a Russian national in Moscow. 8. In the days following 30 June 2004 the applicant applied to the Public Registry Office to have his marriage registered in Malta. 9. 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. 10. 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. 11. 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. 12. 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. 13. The applicant's request remained unsatisfied notwithstanding this decision. 14. On 5 April 2006 the decision of 31 May 2005 was revoked by the Court of Appeal.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). 15. 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. 16. 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. 17. 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. 18. On 2 May 2006, during these proceedings, the Head of the Nationality Department also confirmed that the applicant was a Maltese citizen. 19. On 13 June 2006 the applicant withdrew his complaint in relation to Article 14 taken in conjunction with Article 8. 20. 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. 21. On 11 October 2006, the applicant appealed to the Constitutional Court. 22. 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. 23. 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. 24. On 13 November 2006 the marriage was registered on the basis of the documents originally submitted by the applicant. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 32. 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. 33. 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.