The European Court of Human Rights has fined Malta €6,000 for a delay of almost three years in the registration of a marriage between a Syrian-born Maltese citizen and a Russian girl.
The case involved Mazen Dadoush, who was granted Maltese citizenship in 1993 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, Mr Dadoush married a Russian national in Moscow.
In the days following 30 June 2004 he applied to the Public Registry Office to have his marriage registered in Malta but that recognition was only given nearly three years later after court proceedings in Malta.
The European Court was told that on several occasions, notwithstanding the presentation of his Maltese identity card and a Maltese passport, the Maltese 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 Maltese 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, Mr Dadoush 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 Mr Dadoush’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On 5 April 2006 the decision of 31 May 2005 was revoked by the Court of Appeal.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 Maltese 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.
On 20 June 2005 Mr Dadoush 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.
The Public Registry gave two reasons for the refusal to register the marriage. Firstly, the documents presented by Mr Dadoush had not been authenticated by the Ministry of Foreign Affairs of Moscow, which was 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.
On 2 May 2006, during these proceedings, the Head of the Nationality Department confirmed that the applicant was a Maltese citizen.
On 10 October 2006, the court rejected the application, with legal costs to be paid by Mr Dadoush.
It held that his rights 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,the law 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.
On 11 October 2006, Mr Dadoush appealed to the Constitutional Court.
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 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 as 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.
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.
Mr Dadoush in his application to the European Court, said tha 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.
The Maltese 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.
The European Court said that it was primarily for the national legislation to lay down rules regarding the validity of marriages and to draw the legal consequences. The same was true of procedures relating to the registration of such marriages.
The court noted that apart from the issue as to whether the documents submitted by the applicant fulfilled formal requirements, the government had 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 considered 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 was of the view that since the applicant was in possession of a valid Maltese passport, a presumption of his Maltese nationality arose. It considered that in circumstances where a person’s nationality was certified by means of his or her passport, the onus of proving that the information contained in their passport was not conclusive of nationality shifted 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, the court said that it did 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 observed 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.
The European Court therefore rejected the government’s argument that the delay was due to the applicant’s decision to institute proceedings.
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 the rights of Mr Dadoush.