FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26111/02 
by Maurice MIZZI 
against Malta

The European Court of Human Rights (First Section), sitting on 9 december 2004 as a Chamber composed of:

Mr C.L. Rozakis, President,

Mr L. Loucaides
 Mrs F. Tulkens
 Mrs N. Vajić
 Mr D. Spielmann
 Mr S.E. Jebens, judges, 
 Mr J. Filletti, ad hoc judge
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 5 July 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Maurice Mizzi, is a Maltese national, who was born in 1936 and lives in Bidnija. He is represented before the Court by Mrs M. Farrugia, a lawyer practising in St. Venera (Malta) and by Mr D. Pannick and Mrs C. Weir, two barristers practising in London. The respondent Government were represented by Mr S. Camilleri, Attorney General.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The background of the case

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.

The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test, which, however, would not have been conclusive under Maltese law. The latter did not enable the applicant to institute an action to rebut the legal presumption that he was Y's father. He therefore had to be registered as the natural father of the child.

A few months after Y's birth, X refused to carry out the blood test. This behaviour intensified the suspicions of the applicant regarding his paternity. Due to this he distanced himself completely from Y and, although legally obliged to pay maintenance for her until she reached the majority age, he had no relationship with her.

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.

On an unspecified date after 1993 Y contacted the applicant and volunteered to undergo a blood test. Scientific exams were carried out in Switzerland and it resulted that the applicant was not Y's biological father.

2.  The proceedings before the First Hall of the Civil Court

On 1 November 1996 the applicant filed an application before the First Hall of the Civil Court requesting a declaration that notwithstanding the provisions of the Maltese Civil Code, he had a right to proceed with an action of rejection of paternity.

The applicant alleged that the right to respect for his private and family life included the right that family relationship be regulated 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 this respect violated Article 8 of the Convention, as interpreted by the Court in the case of Kroon and others v. the Netherlands (see judgment of 27 October 1994, Series A no. 297-C).

In a further note of submissions the applicant also invoked Articles 6 and 14 of the Convention, alleging a potential violation of his rights of access to a court and not to be discriminated vis-à-vis the mother of the child, the child herself or third parties which, contrary to the betrayed husband, were free to deny legitimacy without being submitted to any time-limit.

In a judgment of 30 May 1997 the First Hall of the Civil Court accepted the applicant's request. It declared that, as Articles 70 and 73 of the Civil Code never allowed the applicant to prove, by means of scientific and genetic proof, that the child borne by the person who was his wife during the marriage was not truly his daughter, there had been a violation of Article 8 of the Convention.

The Civil Court considered that the status of father was intimately linked with private life. Therefore the laws establishing how the 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 never allowed the applicant to bring forward scientific proof in order for the family relationship to be regulated by biological certainty and not by a legal presumption. In fact, according to Article 70 of the Civil Code, the father could only repudiate paternity on the grounds 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 was cohabiting with X at the time of the conception of Y and was aware of her birth, no action of disavowal could have been brought within the time-limit of three months from the day of the birth set forth by the relevant domestic provisions. It was true that the Civil Code had been amended in 1993, and that according to new Article 70 § 1 (d), the husband was allowed to repudiate a child also on the basis of adultery and of the production of further evidence, including genetic tests, excluding paternity. However, under Article 73 of the Civil Code, such an action should have been introduced within six months from the day of the birth, and in 1993 this time-limit had already expired.

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 prevailed over a legal presumption. This finding dispensed the Civil Court from ascertaining whether the other rights invoked by the applicant had also been infringed.

3.  The proceedings before the Constitutional Court

The Attorney General appealed against the judgment of 30 May 1997 to the Constitutional Court. A third party appeal was also presented by the applicant's daughter.

In a judgment of 15 January 2002, the Constitutional Court accepted the appeals of the Attorney General and of Y and revoked the impugned decision.

It observed that even before the 1993 amendments the Civil Code did not preclude 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 this Code simply provided that adultery alone was insufficient to file an action to repudiate paternity, the concurrence of another element being needed, namely that the birth had been concealed from the person legally designated as the father. Only after this circumstance had taken place could the “father” produce other evidence, included scientific material. The ratio of this limitation on the husband's right to proceed with an action of repudiation had been the favour for the status of legitimacy, resumed 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 to him (Article 70 § 1 (d) of the Civil Code). In any case, scientific tests alone were only evidence corroborating other elements, and they had never been sufficient and decisive to negate paternity, the husband being obliged to prove the adultery or the concealment of the birth.

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 from any other requirement imposed by the legislator and without any time-limit. It was true that scientific tests, 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.

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 enjoining certainty as to his or her legal status. It considered that according to today social orientation, the aim of the interference complained of was the protection of the 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 subject of debate in many other countries. The Constitutional Court noted that the Kroon 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 the Dutch law with the Convention, preferring to pronounce itself solely on the particular circumstances of the case before it. Now, the appealed decision had simply followed the teachings in the Kroon judgment, whose facts, however, were completely different from those of the present case, in which both X and Y disagreed with the action carried on by the applicant and the “social reality” enjoyed by Y corresponded to her act of birth.

The Constitutional Court moreover recalled that in the case of Rasmussen v. Denmark, the European 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 consequently found no violation of Article 8 of the Convention (see judgment of 28 November 1984, Series A no. 87). This approach was subsequently confirmed by the Commission 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 (application no. 34308/96, decision of 19 October 1999).

In the light of the above, the Constitutional Court considered that the interest in having the biological and social reality prevailing over the legal presumptions should be balanced with equally valid principles and values, such as the interests of the offspring, the identity of the family nucleus and the stability of the society. This validated the right of the State to impose, within its margin of appreciation, certain limits on the exercise of the action to deny paternity, which the Constitutional Court could review only if they amounted to a great disturbance for the husband's fundamental rights.

The Constitutional Court finally observed that the ideal situation was the one in which legal certainty corresponded with factual reality. It therefore suggested that the domestic provisions be constantly kept under the legislator's scrutiny to be refined and updated according to the necessity, taking into account the developments in science and the changes in the family and social orientations.

B.  Relevant domestic law and practice

1.  The action of disavowal brought by the husband

Before the 1993 amendments, the relevant Articles of the Maltese Civil Code red as follows:

Article 67

“A child conceived in wedlock is held to be the child of the mother's husband”.

Article 70

“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 ...”.

Article 72 § 1

“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 ...”.

Article 73

“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 ...”.

From 1 December 1993 (see Act XXI of 1993) a number of amendments were made to the above provisions of the Civil Code. In particular, amongst 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”.

Moreover, the time-limits set forth in Article 73 of the Civil Code were raised up to six months.

2.  The impeachment of the legitimacy of a child by other persons

According to Article 77 of the Civil Code, the legitimacy of a child born in wedlock may be impeached by any person interested if he or she proves that, during the time from the three-hundredth day to the one-hundredth-and-eightieth day before the birth of the child, the husband was in the physical impossibility of cohabiting with his wife. This action is not subject to any time-limit.

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 act of birth conflicts with the factual reality (see the judgment of the Court of Appeal of 14 January 1952 in Antonio Scerri Gauci v. Dr. G. Scicluna).

3.  The inheritance and maintenance rights of legitimate children

According to 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.

Until the child's majority, the applicant was obliged to provide maintenance for his daughter. Should the latter become in future 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.

COMPLAINTS

1.  The applicant complained under Article 6 § 1 that he was denied an access to a court with regard to his action of disavowal.

2.  Invoking Article 8 of the Convention, the applicant complained of a disproportionate interference with his right for respect of private and family life.

3.  Invoking Article 14 of the Convention, the applicant complained about a discrimination in the enjoyment of his rights under Article 8 and/or Article 6 § 1 of the Convention.

THE LAW

1.  The applicant considered that he could not have his action of rejection of paternity examined by a domestic tribunal. He invoked Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

“1.  In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”

1.      The parties' submissions

a)  The Government

The Government observed that the applicant never filed any case in Malta to determine the paternity of Y. He confined himself in introducing a constitutional application on 1 November 1996, which is more than three years after the adoption of the 1993 amendments and more than six months after the date on which Y agreed to undergo the DNA test.

The Government noted that the “concealment of birth” was not relevant in the applicant's case: even if such requirement was not provided for by the law, an action of disavowal would have had little prospects of success, as Mr Mizzi did not have any proof of his wife's adultery or – before the DNA test – of the fact that Y had not been generated by him. Consequently, the applicant was affected only by the fact that the law fixed a time-limit for the action of denial of paternity and required the proof of the adultery before admitting scientific evidence.

The Government emphasized that in the domestic proceedings the applicant failed to produce the DNA test and the evidence of the adultery of X. In the absence of any proof of the factual basis of his allegations, he could not be considered a victim of the facts complained of.

In any case, there would be good reasons to establish a legal presumption that a child born or conceived during a marriage is the offspring of the husband, to require certain preconditions before admitting proof in rebuttal and to submit an action of disavowal to time-limits.

In relation to the latter point, the Government observed that in the case of Rasmussen v. Denmark (judgment of 28 November 1984, series A no. 87) the Court accepted such time-limits, which are provided for by practically all the European legislation on the matter, in order to protect the children's right to legal certainty as to their status.

Furthermore, it should be taken into account that when Y was born, DNA testing was not available. The only available test at the time was the ABO blood grouping test, which could in some cases definitely exclude parenthood, but left in most cases the matter open. Now, it would be unreasonable to reopen settled issues of parenthood every time a new scientific test is produced.

In the Government's opinion, the three-month time-limit – which was lately extended to six months – was not unreasonably short. In fact, the law took into account that both infidelity and reconciliation after adultery are not uncommon facts. It was therefore wise to rule out the possibility of an action of disavowal being brought at any time the spouses might have had a fight. In order to avoid “conditional reconciliations”, Maltese law decided to give to a husband a limited time within which he had to decide whether to forgive his wife and forget his doubts as to the paternity of his children.

Finally, as jealousy was a recurring theme in life, the Maltese legislator had protected wives and their children from the antics of jealous husbands or fathers. In particular, before 1993, the husband was required to prove both the adultery and the concealment of birth before adducing other evidence (including scientific tests) showing that the child of the marriage was not his. After 1993, he should prove either the adultery or the concealment in order to be able to produce other proofs. The more rigid requirements before 1993 were attributable to the fact that the scientific tests were, at that time, less reliable.

In the view of the above, the Government concluded that the preconditions required for bringing an action of disavowal were necessary and acceptable limitations to the right of access to a tribunal.

b)  The applicant

According to the applicant, the concealment requirement and the limitation period under the relevant provisions of the Civil Code constituted an unjustified and disproportionate interference with his right of access to a court.

He observed that he brought proceedings before the First Hall of the Civil Court seeking a declaration that these legal limitations were contrary to Articles 6, 8 and 14 of the Convention. He also sought a declaration that he had a right to proceed with an action for rejection of paternity notwithstanding the limits fixed in the Civil Code. The applicant therefore considered that he enabled the Civil Court and the Constitutional Court to determine the substance of the complaints raised in the present application, which was introduced within a period of six months from the date of the final domestic decision.

As to the Government's argument, according to which he could not claim to be a victim of the alleged violations as no evidence of the wife's adultery or of the DNA test was adduced, the applicant noted that his complaint in Strasbourg concerned the preconditions for bringing an action of denial of paternity in the domestic legal order. He therefore considered to be a victim of the relevant provisions of the Maltese Civil Code and alleged that for the purposes of the present application there is no need for the Court to consider evidence of paternity or adultery.

The applicant observed that the Government acknowledged, in substance, that the six-month limitation period for bringing an action of disavowal and the concealment requirement are prima facie interferences with his right to access to court. However, the Government failed to provide adequate justifications satisfying the test of proportionality under Article 6 of the Convention.

In the first place, the Government did not explain why an absolute six-month requirement, accepting no exceptions, was needed. After the 1993 amendments, it was this time-limit which prevented the applicant, who was able to comply with the substantive requirements of an action of disavowal, from bringing his case before a tribunal. Moreover, no convincing explanation had been given as regards the concealment requirement, provided for before the 1993 reform. This requirement prevented a husband who had evidence of the adultery of his wife from instituting proceedings for denial of paternity each time there was still common marital life or when the wife decided to reveal the birth. This rendered, in many cases, an action of disavowal practically impossible. Nor did the Government explain why the proof of the adultery, properly applied, was not sufficient to protect wives and children from groundless allegations.

2.  The Court's assessment

As far as the Government's reference to the fact that the applicant introduced his constitutional claim more than six months after the adoption of the 1993 amendments and the DNA test might be understood as an objection that the present application is out of time, the Court observes that the applicant has challenged the relevant domestic legislation before the competent tribunals, which examined the merits of his allegations. Consequently, the final decision, within the meaning of Article 35 § 1 of the Convention, is the Constitutional Court's judgment of 15 January 2002, given less than six months before the date on which the present application was introduced (5 July 2002). It follows that the latter cannot be declared inadmissible as being out of time.

As to the applicant's failure to introduce an action to determine the paternity of Y, the Court considers that the accessibility and effectiveness of this action is linked to the substance of the applicant's complaint under Article 6 § 1 of the Convention.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicant alleged that the legal presumption of paternity of the husband, combined with the absence of any domestic remedy by which he could have challenged it, violated in his right for respect of private and family life, guaranteed by Article 8 of the Convention.

This provision reads as follows:

“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.”

1.  The parties' submissions

a)  The Government

Referring to the cases of X v. the United Kingdom (application no. 5269/71, Yearbook, Vol. 15, pp. 564-574 and application no. 2991/64, Yearbook, Vol. 15, pp. 478-500), the Government alleged that the relationship between the applicant and his 29 years old daughter did not constitute “family life”. They moreover observed that there has been no interference by the State in the applicant's intimate life with X and Y. Mr Mizzi himself declared that he had developed a friendship with Y and that he “hoped” that she was his daughter.

According to the Government, the potential (or rather theoretical) reciprocal right of maintenance between the applicant and Y and the inheritance rights of the latter do not constitute interferences with the applicant's private life, but only with his patrimony. They therefore concern family property, and not family life.

b)  The applicant

The applicant alleged that the amendments introduced in the Civil Code in 1993 were aimed at protecting persons which were in a position comparable to his; however, no derogation was provided for the six-month time-limit set forth in Article 73 of the Civil Code, thus preventing him from introducing an action based on adultery and scientific tests. This legislation failed to ensure, in his case, that the biological reality prevailed over the legal assumption of legitimacy, to which the Maltese legal system attributed a disproportionate importance. Moreover, this legal assumption had serious financial consequences: even if not biologically related to the applicant, Y will inherit one third of his estate and could not be treated less favourably than other children that the applicant may have in future. Thus, the presumption of paternity has not only emotional, but also financial consequences, which are disproportionate and extend substantially beyond Y's age of majority.

The applicant moreover observed that the case-law quoted by the Government in order to show that there was no family life between him and Y and that there was no interference on the part of the State with his rights guaranteed by Article 8 was not relevant. In this respect, he noted that he did not seek to establish family life with a relative who might otherwise be considered independent, but to distance himself from a relationship established by the Maltese Civil Code and which existed since the birth of the presumed daughter.

In any case, the institution of paternity proceedings was clearly covered by Article 8 of the Convention. In fact, respect for private life, intended as the right to establish relationships with other human beings, should also comprise the right not to be compelled to establish such relationships.

The applicant finally submitted that his case was similar to that of Shofman v. Russia, which was recently declared partly admissible (see decision of 25 March 2004, no. 74826/01).

2.  The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  The applicant complained about a discrimination on the ground of his status of legally presumed father in the exercise of his rights under Article 8 and/or Article 6 § 1 of the Convention. He invoked Article 14 of the Convention, which reads as follows:

“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 applicant alleged that contrary to other individuals in an analogous situation (namely, X, Y and Y's real father), he was subjected, in introducing an action of disavowal, to the limitation period set forth in Article 73 of the Civil Code.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Registrar President

MIZZI v. MALTA DECISION


MIZZI v. MALTA DECISION