Mother's human rights violation claim dismissed

The Constitutional Court yesterday dismissed an appeal filed by Ukrainian national Olena Tretyak from a judgment of the First Hall of the Civil Court over her claim that her right to freedom of movement and to enjoyment of family life were being violated.

Ms Tretyak had claimed before the first court that she had come to Malta in 2000 with her two children who were also Ukrainian nationals.

In May 2002, following a relationship with a Maltese man, Ms Tretyak gave birth to a child who was a Maltese citizen and had a Maltese passport. Before the Family Court granted care and custody of the child to his Maltese father, while Ms Tretyak retained access to the child, the father used to pay her Lm80 per month by way of maintenance for the child.

As she had no other means of support she had worked in Malta, but her last work permit expired in January 2003.

In October 2004, the Maltese father of her child had obtained a warrant of prohibitory injunction from the courts in terms of which the child could not be taken out of the country.

Ms Tretyak claimed that she was now in a situation where she had to take care of three minor children but could not leave Malta as the Maltese child could not leave the country. She also claimed that she could not work in Malta as she did not enjoy freedom of movement and so could not maintain her children.

At the same time she could not abandon her Maltese son and leave Malta without him.

Ms Tretyak claimed that this was in violation of her fundamental human rights to freedom from inhuman and degrading treatment as well as a violation of her right to freedom of movement and to enjoyment of family life.

She therefore requested the First Hall of the Civil Court to grant her a remedy.

However, Ms Tretyak's application was dismissed by the First Hall of the Civil Court and she appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D Camilleri and Mr Justice Joseph Filletti.

The court noted that Ms Tretyak's case was based upon the premise that, as she had a child who had Maltese nationality and in respect of whom a warrant of prohibitory injunction had been issued, she ought to be entitled to freedom of movement in Malta as though she was a Maltese national.

She further claimed that once she could not remain in Malta and maintain herself and her children, then her fundamental human rights were being violated.

The court pointed out that in terms of International Law, each state was empowered to regulate who could enter or reside within its territory, which power had to be exercised in conformity with the state's international obligations.

In this case, no evidence had been produced to show that Ms Tretyak or her two Ukrainian children were going to be removed from the country.

Ms Tretyak could have applied for a permit to work in Malta as a self-employed person or could have found a job for which a work permit could have been issued.

However, it did not result that Ms Tretyak had made any such applications by the date of the judgment appealed from.

In the course of the appeal it resulted that Ms Tretyak now had a work permit as a consultant with an architectural firm in Malta.

Consequently, she could now maintain herself and her children and could enter and leave Malta though she could not take her Maltese son with her while the warrant of prohibitory injunction was in force.

The Constitutional Court therefore dismissed Ms Tretyak's appeal.