FOURTH SECTION

DECISION

Application no . 30623/13 Claudine DESIRA and Moamar Ali Melad ELTARHUNI against Malta

The European Court of Human Rights (Fourth Section), sitting on 6 December 2016 as a Chamber composed of:

András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris , Gabriele Kucsko-Stadlmayer , judges, and Marialena Tsirli , Section Registrar ,

Having regard to the above application lodged on 5 May 2013,

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

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Ms Claudine Desira , is a Maltese national who was born in 1992. The second applicant, Mr Moamar Ali Melad Eltarhuni , is a Libyan national who was born in 1985. Both applicants live in Zabbar . They are represented before the Court by Dr J. Brincat, a lawyer practising in Marsa .

2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech , Attorney General.

A. The circumstances of the case

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

1. Background to the case

4. The second applicant arrived in Malta on 30 December 2005. He had obtained a visa on 28 December 2005 in Tripoli, which was valid for one entry for a duration of ten days, namely from 29 December 2005 to 9 January 2006.

5. The second applicant ’ s presence in Malta as from 10 January 2006 was thus illegal under the provisions of the Immigration Act.

6. During his illegal stay, the second applicant was charged before the Court of Magistrates in connection with a violent incident which had occurred on 25 May 2006 in the apartment in which he was residing. Following seven months of detention on remand the second applicant was granted bail and was released. The court ordered him not to leave Malta.

7. By a judgment of 9 March 2010 the second applicant was cleared of attempted murder, but found guilty of possessing a knife without a licence. He was sentenced to ten months imprisonment. He served his sentence while his appeal was pending. By an appeal judgment of 2 December 2010 the second applicant was acquitted of all the charges.

8. In 2006, the second applicant met the first applicant, who at the time was fourteen years of age, and they entered into a relationship. The second applicant moved in with the first applicant ’ s family and has lived in their house since.

9. According to the applicants, a request to issue marriage banns for the couple was rejected on a date that is not clear on the grounds that the first applicant was too young and her parents ’ approval was required. The second applicant was also told that he required a visa, as it was not sufficient that he was in Malta on the basis of a court order. Nevertheless, no visa was issued to him, at first because his passport was being held by the police in connection with the court case, and later for unspecified reasons.

10. According to the Government, in 2009 the applicants verbally enquired with the Marriage Registrar about the documents which were necessary to contract a marriage. According to the principal officer of the registry (who gave evidence in later proceedings), the necessary documents were a birth certificate, a free status certificate, a permit allowing the second applicant to marry a non-Libyan woman (as required by the Libyan authorities), a valid passport and a valid visa. The application could not be processed that day as the applicants did not have the required documents.

11. It can be seen in the documents submitted to the Court that on 1 December 2009 the applicants lodged an application with the Civil Court (voluntary jurisdiction), requesting that the court order the Marriage Registrar to issue their banns. The Marriage Registrar objected, noting that the refusal had been a result of the fact that the second applicant had failed to submit the necessary documents, namely (i) a true copy of his birth certificate together with a certified translation, (ii) a free status certificate together with a certified translation, (iii) a passport or a visa covering his stay until the marriage, and (iv) the written consent of the first applicant ’ s parents. Furthermore, the second applicant had been waiting to undergo a trial by jury. By a decree of 26 January 2010, their application was rejected as the applicants had not produced all the documents required by law.

12. On 24 February 2010 the applicants verbally requested that the Marriage Registrar publish the marriage banns and to this end they produced the second applicant ’ s birth certificate, a certificate of free status and an expired passport. Since their request was not accompanied by a permit issued by the Libyan authorities allowing the second applicant (as a Libyan national) to marry, as well as a valid passport and visa, their request could not be processed.

13. The applicants put their case to the Ombudsman who by a decision of 22 April 2010 found that the fact that the would-be spouse had not presented a valid visa should not have been an obstacle to the marriage banns being issued. He thus advised the Marriage Registrar to issue the banns. However, the recommendation went unheeded.

14. In the meantime, the second applicant submitted a declaration of good conduct and behaviour, a certified free status certificate and a certified birth certificate. By a letter of 14 April 2010 the Director of the Public Registry declared that the only missing document was the visa.

15. On 29 April 2010 the applicants, assisted by a lawyer, lodged another application with the Civil Court (voluntary jurisdiction), requesting that it order the Marriage Registrar to issue the marriage banns given that the required visa was not a lawful requirement. Alternatively, if the court considered it to be a required document, they requested that the court refer the matter to the constitutional jurisdictions to establish whether there had been a violation of Articles 8 and 12 of the Convention. By means of a decree of 3 August 2010 the court found that, without prejudice to any rights of the applicants of obtaining constitutional redress si et quatenus [if and in so far as], given that it appeared that the applicants had not produced all the necessary documents the Marriage Registrar had been justified in refusing to issue their marriage banns.

16. In 2010 the applicants had a son, who was, however, registered as having an “unknown father” up to the date of the submission of observations, namely when the child was aged five. The applicants submitted that they wished to rectify the position of the child per subsequens matrimonium .

2. Constitutional redress proceedings

17. On 25 November 2010 the applicants, assisted by a lawyer, instituted constitutional redress proceedings, invoking Articles 8, 12 and 14 of the Convention.

18. By a judgment of 23 February 2012 the Civil Court, in its constitutional jurisdiction, considered that the applicants had exhausted ordinary remedies, no further remedies were available, and it thus found a breach of Article 12 in respect of the applicants ’ rights. The court considered that the refusal to issue the banns had not been justified, and ordered the authorities to reverse that decision. In particular, it noted that Article 7 (2) and (5) of the Marriage Act (see paragraph 21 below) did not provide that a passport or visa were to be submitted in order to issue marriage banns. While it was true that a certain amount of discretion was allowed under Article 7 (5), which also referred to “in addition to all other relevant information”, such discretion had to operate to ensure good order and national security, and it had to be reasonable and proportionate to the aim pursued. The court considered that it was justified for a state to require a visa or a passport, nevertheless in the second applicant ’ s case it appeared that it was not possible to issue him with a visa, though no justification for this had been submitted. Now that the second applicant had submitted all the relevant documents (apart from the visa) and that he had been living in Malta for five years, the court could not find any justification or legitimate aim behind the registrar ’ s insistence on requiring a visa. In the circumstances of the case the interference was therefore disproportionate. The court dismissed the remainder of the claims stating that the applicants ’ family life had not been affected in any way and no discrimination had been proved.

19. The respondents, namely the Director of the Public Registry and the Marriage Registrar, appealed.

20. By a judgment of 9 November 2012 the Constitutional Court reversed the first-instance judgment. It considered that the applicants had not exhausted ordinary remedies as they had failed to institute ordinary proceedings before the Civil Court (First Hall) in its civil jurisdiction under Article 35 of the Code of Organisation and Civil Procedure (hereinafter the “COCP” - see paragraph 22 below). The Constitutional Court highlighted that according to domestic case-law, particularly Stacey Spiteri et vs Director of Public Registry , Constitutional Court judgment of 27 April 2012, and the domestic case-law cited therein (see paragraph 23 below) that procedure was a normal and ordinary procedure, one that was regularly used, and there was nothing preventing the applicants from instituting such proceedings. The decree of the court of voluntary jurisdiction could be challenged by an ordinary application before the Civil Court (First Hall) which had the power to confirm, revoke or alter the decree being challenged. In the event of the applicants ’ request being acceded to, the remedy would have been an effective one and there would have been no complaint concerning any breach of human rights.

B. Relevant domestic law and practice

21. The relevant articles of the Marriage Act, Chapter 255 of the Laws of Malta, read as follows:

Article 7

“ (1) The celebration of marriage must be preceded by the publication of banns of matrimony.

(2) Banns of matrimony shall state the name, surname, place of birth and residence of each of the persons to be married, the place where they intend to contract marriage and, unless the Registrar in the case of natural filiation or other circumstances deems proper to act otherwise, the name of the father and the name and surname of the mother of each of the persons to be married.

(5) A request for the publication of banns shall not be entertained unless it is delivered to the Registrar earlier than six weeks before the date of the intended marriage, or than such shorter period as the Registrar may in his discretion accept in special circumstances, and unless and until, in addition to all other relevant information, there are delivered to the Registrar-

( a ) the certificate of birth of each of the persons to be married;

( b ) a declaration on oath made and signed by each of the persons to be married stating that to the best of his or her knowledge and belief there is no legal impediment to the marriage or other lawful cause why it should not take place.

Provided that if it is shown to the satisfaction of the Registrar that it is impracticable to obtain a certificate of birth required to be delivered by this sub-article, the Registrar may accept instead such other document or evidence as he may deem adequate for the purpose of this article.”

Article 8

“(1) If the Registrar is of the opinion that he cannot proceed to the publication of the banns or that he cannot issue a certificate of such publication he shall notify the persons requesting the publication of his inability to do so, giving the reasons therefor.

(2) In any such case, either of the persons to be married may apply to the competent court of voluntary jurisdiction for an order directing the Registrar to publish the banns or to issue a certificate of their publication, as the case may require, and the court may, after hearing the applicant and the Registrar, give such directions as it may deem appropriate in the circumstances, and the Registrar shall act in accordance with any such directions.”

22. Article 35 of the COCP (Chapter 12 of the Laws of Malta) reads as follows:

“No appeal shall lie from any decree of the Court of voluntary jurisdiction; but it shall be lawful for any party, who deems himself aggrieved, to bring an action before the Civil Court, First Hall, for the necessary order.”

23. Relevant domestic case-law on the subject matter includes the case of Stacey Spiteri et vs Director of Public Registry (see paragraph 20, above), concerning the registrar ’ s refusal to issue the necessary banns on suspicion that it would have been a marriage of convenience. The Constitutional Court confirmed the first-instance judgment, noting that the applicable principles to decide whether the applicants have or had at their disposal an alternative and effective ordinary remedy had been underlined by it in various judgments and in particular in Olena Tretyak vs Director of Citizenship and Expatriate Affairs of 16 January 2006. Amongst other principles, the Constitutional Court referred to: the existence of another remedy as an actual and objective fact; that the remedy be accessible, just, effective and adequate in addressing the violation complained of; that for a remedy to be effective it need not guarantee a favourable outcome, but it sufficed that it could be pursued in a practical, effective and efficient manner; that the discretion of the Constitutional Court in this respect must be carried out justly and in the best interest of the administration of justice in order to, on the one hand, avoid that the constitutional jurisdictions be burdened by cases which could or should have been dealt with by other competent courts or through other effective remedies, and on the other hand to ensure that a person is not denied the remedies available under the Constitution or the Convention. It considered that the fact that a remedy is not pursued is not sufficient for the constitutional jurisdictions to refuse to take cognisance of a case, if it is shown that the remedy referred to was not effective to give full redress; however, when it is clear that there exists an available ordinary remedy, that must be pursued before seeking constitutional redress.

The Constitutional Court held (in Stacey Spiteri et ) that the plaintiffs had failed to challenge the decree of the court of voluntary jurisdiction by an ordinary application before the Civil Court (First Hall), which had the power to annul and revoke the decree being challenged (see also Director of Public Registry vs X , judgment of the Civil Court (First Hall) in its ordinary competence, of 21 May 2008) . As had been held by the first ‑ instance court this was not an extraordinary remedy; it had been used in the past and continued to be used.

COMPLAINT

24. The applicants complained under Article 12 of the Convention of a violation of their right to marry.

THE LAW

25. The applicants complained under Article 12 of the Convention that they had been denied the right to marry on grounds which were not lawful, which was thus contrary to the provisions of Article 12 of the Convention, which reads as follows:

“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.”

A. The parties ’ submissions

1. The Government

26. The Government submitted that the applicants had not exhausted domestic remedies in so far as they had failed to exhaust ordinary civil remedies. The Government submitted that the applicants had had a three ‑ fold remedy available to them: (a) unde r Article 8 (2) of the Marriage Act; and (b) under Article 35 of the COCP. If those remedies were not successful an applicant could undertake constitutional redress proceedings. The applicants had twice pursued the remedy provided under Article 8 (2) of the Marriage Act, without success. However, they had failed to challenge the findings of the court of voluntary jurisdiction before the Civil Court (First Hall), as provided for under Article 35 of the COCP. The Government argued that the latter provision, while not providing for an appeal against the findings of the voluntary jurisdiction, clearly provided a next step following the decisions of that jurisdiction and could not be considered as an alternative remedy. The applicants had thus been required to use it.

27. The Government submitted that proceedings under Article 35 of the COCP were treated with the utmost urgency. Noting that small jurisdictions were not in a position to submit a plethora of examples, they referred to two cases as an example. The first (no. 202/2007) had been decided in thirteen months at one level of ju risdiction, and the second (no. 340/2013) in slightly less than sixteen months at two levels of jurisdiction. In the Government ’ s view such a remedy had thus to be considered effective and available. They further noted that the applicants could even have pursued such a remedy while the case was pending before the Court since there was no time-limit for such an action. It followed that the remedy was still open to them. After using that remedy they could still institute constitutional redress proceedings, which had to date not determined the substance of their claim as the Constitutional Court had rejected their complaint for non-exhaustion of ordinary remedies.

28. In rebuttal to the applicants ’ arguments (see paragraph 29 below), the Government submitted that it was obvious from the text of the provision (as well as from the two above-mentioned cases given as examples) that an action under Article 35 of the COCP had to be brought before the Civil Court (First Hall) in its ordinary civil jurisdiction, and not in its constitutional jurisdiction. Constitutional remedies were extraordinary remedies that were to be used only after exhaustion of the ordinary remedies, such as that under Article 35 of the COCP. Moreover, the remedy under Article 35 of the COCP had the potential to lead to the annulling and revoking of the decree given by the court of voluntary jurisdiction. The Government further submitted that, while reserving the applicants ’ constitutional rights, the court of voluntary jurisdiction had not indicated that the applicants should bypass the ordinary remedy available. They also noted that the fees applicable to such proceedings were normal court fees and not specifically linked to immigrants wishing to marry, as was the case in O ’ Donoghue and Others v. the United Kingdom (no. 34848/07, ECHR 2010 (extracts)). Lastly, the Government noted that the Constitutional Court had the authority to reverse the judgment of the first-instance court.

2. The applicants

29. The applicants submitted that the law did not lay down the grounds for an action under Article 35 of the COCP. While it stated what the competent court was, by referring to it as the Civil Court (First Hall), it did not limit such an “action” or put it into any category (or competence), such as ordinary, constitutional or conventional. They further questioned the scope of such a remedy, specifically whether it would provide a re ‑ examination on the merits, or deal with legal questions, such as why the court of voluntary jurisdiction had made incorrect findings. They noted that according to the Court ’ s case-law once a remedy had been pursued the use of a remedy having the same objective was not required.

30. The applicants also noted that they had raised their constitutional complaint with the court of voluntary jurisdiction; however, instead of acting in accordance with the relevant law (Article 4 of the European Convention Act) and referring the case to the constitutional jurisdiction or declaring the issue as merely frivolous or vexatious, the court of voluntary jurisdiction had reserved the applicant ’ s constitutional rights, expecting them to seek constitutional redress elsewhere, as in fact they did by instituting proceedings before the constitutional jurisdictions. The court of voluntary jurisdiction had thus invited them to institute constitutional proceedings rather than proceedings under Article 35 of the COCP. They further noted that constitutional redress proceedings needed to be dealt with speedily, however in the applicants ’ case they had taken nearly two years. Moreover, such a multi-tiered remedy became costly, indeed proceedings under Article 35 of the COCP would cost 700 euros (EUR), to which EUR 200 had to be added in case of an appeal, solely in registry fees. A further challenge to the constitutional jurisdictions would also have cost EUR 500 in fees for filing the complaint. Referring to the judgment in O ’ Donoghue and Others (cited above), the applicants submitted that those amounts exceeded what was accepted by the Court in such cases. Lastly, the applicants noted that, in contrast to their case, it had usually been the Constitutional Court ’ s practice to respect the discretion of the first-instance court of constitutional competence when it decided to take cognisance of the merits of a case and dismiss a plea of non-exhaustion of ordinary remedies.

B. The Court ’ s assessment

31. The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; Vučković and Others v. Serbia [GC], nos. 17153/11 and 29 Others , § 70, 25 March 2014; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08 , § 221, ECHR 2014 (extracts) ) .

32. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain, not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others , cited above, § 66, and Vučković and Others , cited above, § 71). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mocanu , cited above, § 222).

33. The Court must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected from him or her to exhaust domestic remedies (see Ä°lhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII). When a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see, inter alia , KozacıoÄŸlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009, and Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009 ).

34. As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others , cited above, § 68; Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99 et al, § 70, ECHR 2010 ; and Vučković and Others , cited above, § 77).

35. Turning to the circumstances of the present case, the Court notes the unusual wording of Article 35 of the COCP (see paragraph 22 above) which wording essentially dates from 1855, when the COCP was brought into force . That provision, while stating that no appeal lies against a decision of the court of voluntary jurisdiction, refers to the possibility of instituting proceedings before the Civil Court (First Hall). While it is true that that provision does not specifically refer to the competence of the latter court, the Court has no doubt that in the Maltese legal and judicial circles, it would only be interpreted as referring to the Civil Court (First Hall) in its ordinary competence, and not its constitutional competence which is of a more specific and exceptional nature.

37. In the light of the parties ’ submissions the Court is of the view that the aforementioned remedy cannot be considered as an alternative remedy as understood in its case-law cited in paragraph 33 above. Indeed, it transpires from the domestic case-law (see paragraph 23 above) that individuals in the applicants ’ situation do not have the option of choosing whether to bring proceedings before the court of voluntary jurisdiction or proceedings before the contentious, ordinary, civil jurisdictions. In that sense, the law is also clear in so far as it provides that the first step to challenging a refusal by the Marriage Registrar to issue banns is to bring proceedings before the court of voluntary jurisdiction. It is only subsequently that an individual can pursue a further remedy before the Civil Court (First Hall). In the light of such considerations, and despite the wording of the law, proceedings before the Civil Court (First Hall) must be considered as being tantamount to an appeal, and therefore as being part and parcel of the ordinary civil remedies which must be exhausted before instituting constitutional redress proceedings. However, the applicants, who twice undertook proceedings before the voluntary jurisdiction, failed to pursue the (contentious) ordinary civil remedy.

38. Lastly, in connection with the statement made by the court of voluntary jurisdiction in respect of the applicants ’ constitutional claim (see paragraph 15 above), the Court notes that under Maltese law, in such a situation that court could only have rejected the claim as frivolous or vexatious, or alternatively referred the matter to the constitutional jurisdictions. Indeed, the failure to take either of those decisions was a course of action which was not in line with the domestic procedure. Nevertheless, the Court notes that the procedurally deficient finding of the court of voluntary jurisdiction in the present case has no impact on the Court ’ s conclusion, and has no bearing on the effectiveness of the domestic remedy at issue, namely ordinary civil proceedings. On the contrary, the finding by the court supports the Court ’ s conclusion above in so far as it could have been the result of considerations related to the applicants ’ premature call for constitutional redress, given that the applicants raised their constitutional claim before undertaking the ordinary civil proceedings.

40. It follows that the application is premature and must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reas ons, the Court, by a majority,

Declares the application inadmissible.

Done in English and notified in writing on 12 January 2017 .

Marialena Tsirli András Sajó Registrar President