AS TO THE ADMISSIBILITY OF
Application no. 18059/06
by Sergio WALTER
The European Court of Human Rights (Third Section), sitting on 11 July 2006 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 2 May 2006,
Having deliberated, decides as follows:
The applicant, Mr Sergio Walter, is an Italian national who was born in 1970 and lives in Villach (Austria).
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant planned to marry Ms V., an Indian national. The marriage should have taken place in Italy in summer 2005. Since Italy does not provide for visas for marriage purposes, the applicant had to apply for a tourist visa for Ms V.
On an unspecified date the couple applied for a visa at the Austrian Embassy in New Delhi.
On 24 July 2005 a Schengen visa (C type – multiple entry) was issued for a period of 90 days.
In Italy the applicant was told that Ms V. would need a no obstacle certificate (“nulla osta” form) in order to get married. This document was unknown to the Indian system. The commonly used document in India for similar cases was an affidavit produced by the person concerned.
After consultation with a lawyer, Ms V. produced an affidavit made under oath in front of a notary. It stated Ms V.’s details, her status and declared that she was not under legal prosecution. According to the applicant, this procedure had been proven sufficient for other Indian citizens who married abroad.
In August 2005 Ms V. flew to Austria and then to Italy in order to apply for their marriage bans and organise the wedding. However, the applicant and Ms V. were not allowed to apply for such bans. In fact the authorities refused to accept the affidavit as it did not contain the words “nulla osta”.
The Italian consulate in Mubai told the applicant that, as it was solely competent to authenticate and translate original documents, it could not release such a document.
The applicant later got in touch with the Indian Embassy in Rome which explained that they would have been able to release such document only after the couple got married at the Embassy. They further explained that the procedure would take five weeks and that the couple were required to produce a number of documents, amongst which an original Italian and Indian newspaper announcing their marriage, and a residence permit released by the Italian police (permesso di soggiorno). The couple later discovered that this procedure was only valid for Indian people resident in Italy and not for people holding a tourist visa.
The applicant resorted once again to the Italian consulate in Mubai, which suggested they should get married in India. Consequently, they would translate the certificate and issue a visa for family purposes (familiare al seguito) for a period of one year. The consulate specified that the couple required a civil marriage certificate released by the Indian Government and legalized by their “home department”.
Ms V. quit her job in the United States of America and from September to October 2005 the couple collected all the documents necessary to get married in India.
According to Indian law, both parties should be present in court to submit their application for a civil marriage. After thirty days they have to confirm this intention.
On 24 November 2005 the applicant went to India for the first time. A few days later the couple celebrated the religious ceremony and initiated the civil marriage procedure which was concluded on the applicant’s second visit to India on 31 December 2005.
On successful completion of the documents, certificates and translations, a “spouse visa” was issued in favour of Ms V.
On 19 January 2006 the married couple returned to Florence. There they waited several weeks to receive the marriage transcription from the Italian consulate, which was necessary to apply for a residence permit. On applying for the latter permit, various obstacles were encountered as the police requirements did not tally with the certificates issued by the Town Hall. In particular the former requested originals but the latter would not release them. Various offices also interpreted immigration law differently, which obliged the applicant to call the consulate various times for advice.
1. The applicant complained under Articles 1, 8, 12, and 14 of the Convention that Ms V. was not allowed to apply for a visa for marriage purposes.
2. Invoking Article 13 of the Convention, the applicant complained that he did not have at his disposal any effective domestic remedy for the protection of his rights under Articles 8, 12 and 14.
1. The applicant complained about the impossibility of obtaining a visa for marriage purposes in favour of Ms V. He moreover alleged that the documents requested by the Italian authorities could not be produced and that no specific measures to facilitate the production of foreign documents had been put in place.
He invoked Articles 1, 8, 12 and 14 of the Convention, which read as follows:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
“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.”
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
“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.”
The Court first recalls that the right to marry does not in principle include the right to choose the geographical location of the marriage. A refusal to allow entry into a State of a foreign fiancé would not contravene the individual’s right to marry under Article 12 of the Convention, if the couple could marry in the fiancé’s country of residence (see A v. the United Kingdom, no. 9773/82, Commission’s decision of 6 October 1982, and A v. the Netherlands, no. 10914/84, Commission’s decision of 6 May 1985).
In the present case, nothing shows that the applicant had encountered any serious obstacle in celebrating his marriage in Ms V.’s country of residence. Indeed, the couple got married in India in December 2005. The Court moreover notes that a “spouse visa” in favour of Ms V. was issued shortly after. This shows that the Italian authorities had recognised her status as a family member of an Italian national.
Under these circumstances, the Court cannot find any appearance of a violation of the applicant’s right to marry, as guaranteed by Article 12 of the Convention. It considers that no separate issue arises under Article 8.
As far as Article 14 of the Convention is concerned, the Court recalls that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (Unal Tekeli v. Turkey, no. 29865/96, § 49, 16 November 2004).
A difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, p. 586, § 30, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, pp. 66-67, § 177).
In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 39, § 82). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001).
The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background (Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 15, § 40, and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, p. 18, § 41), but the final decision as to observance of the Convention’s requirements rests with the Court.
The Court can accept that in order to get married and establish their family life in Italy, the applicant and Ms V. might have had to comply with a number of formalities which would not have been required if they had both been Italian citizens. It however considers that it is reasonable for States to impose such formalities on non-nationals in order to secure the effectiveness of their immigration policies. It furthermore notes that the burden imposed on the couple could not be seen as arbitrary, excessive or not proportionate to the aim sought to be achieved.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant alleged that he was not given any effective domestic remedy capable of providing redress for the above alleged violations of his fundamental rights. He invoked Article 13 of the Convention, which read as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to the Court’s case-law, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (Boyle and Rice v. the United Kingdom, judgment of 24 April 1988, Series A no. 131, p. 23, § 52).
In the present case, the Court has concluded that all the applicant’s substantive claims were manifestly ill-founded. The rejection of a complaint as "manifestly ill-founded" amounts to a decision that "there is not even a prima facie case against the respondent State" (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 10, § 18). The Court is therefore of the opinion that in the circumstances of the present case, the applicant did not have any arguable grievance in terms of the Convention and that Article 13 does not apply.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan
WALTER v. ITALY DECISION
WALTER v. ITALY DECISION