FOURTH SECTION

DECISION

Application no . 36982/11 Joanne CASSAR against Malta

The European Court of Human Rights (Fourth Section), sitting on 9 July 2013 as a Chamber composed of:

Ineta Ziemele , President,

David Thór Björgvinsson ,

Päivi Hirvelä ,

George Nicolaou ,

Zdravka Kalaydjieva ,

Vincent A. D e Gaetano ,

Krzysztof Wojtyczek , judges

and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 1 June 2011,

Having regard to the observations submitted in the case,

Having regard to the information submitted by the respondent Government,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Ms Joanne Cassar , is a Maltese national, who was born in 1981 and lives in Cospicua . She was represented before the Court by D r J. A. Herrera, a lawyer practising in Valletta.

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

3. The applicant complained under Article 12 of the Convention that she had been denied the right to marry following her gender reassignment surgery and that she had no effective remedy in that respect. In that connection she also relied on Articles 8 and 13 of the Convention.

4. The applicant ’ s complaint under Article 12 was communicated to the Government. The parties each filed observations.

5. Written observations were also received by The European Centre for Law and Justice, the Malta Gay R ights Movement together with ADITUS (a national NGO), and INTERIGHTS jointly with Transgender Europe and the International Commission of Jurists which had been given leave to intervene by the President of the Chamber (Article 36 § 2 of the Convention).

A. The circumstances of the case

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

1. Background of the case

7. The applicant was born in 1981 and was registered on her birth certificate as male. She always felt she wa s in fact female and in October 2004 she sought medical help. On 20 January 2005 she successfully underwent gender reassignment surgery.

8. The applicant instituted proceedings under Article 257A of the Civil Code. On 28 June 2006 the First Hall of the Civil Court declared that the applicant had undergone an irreversible sex change and assumed the female sex (Art. 275A(2)) and it ordered that an annotation be made in the applicant ’ s birth certificate whereby the applicant ’ s details regarding sex be changed from male to female. The court further ordered that an annotation be made in respect of the applicant ’ s name, which was to be changed from Joseph to Joanne.

9. The relevant annotations to the birth certificate were duly made.

10. Subsequently, the applicant and her boyfriend, T., applied to the Director of Public Registry to issue the appropriate marriage banns. Their request was refused on an unspecified date.

11. In consequence, the applicant applied under Article 8 of the Marriage Act to the Civil Court (Voluntary Jurisdiction Section), requesting that it order the Director of Public Registry to issue the marriage banns. On 12 February 2007 the court ordered the banns to be issued.

12. The Director of Public Registry challenged that decision before the First Hall of the Civil Court, which on 21 May 2008 upheld the Director ’ s application, finding that the decision of 12 February 2007 had been based on a premise that did not reflect reality because the relevant parties were not of the opposite sex. The court went on to find that a marriage between the applicant and a person of the male sex would be contrary to the provisions of the Marriage Act and that the annotation made on the applicant ’ s birth certificate following the relevant court judgment was only intended to protect the applicant ’ s privacy and did not give her any right to consider herself female for the purposes of marriage. It therefore revoked the decision of 12 February 2007 which had ordered that the banns be issued.

2. Constitutional redress proceedings

13. On 29 July 2008 the applicant instituted constitutional redress proceedings. She complained that the fact that Maltese law did not recognise transsexuals as persons of the acquired sex for all intents and purposes, including that of contracting marriage, breached her rights under Articles 8 and 12 of the Convention.

14. By a judgment of 30 November 20 10, the First Hall of the Civil Court (in its constitutional jurisdiction) upheld her claims. It found a violation of Articles 8 and 12 of the Convention and declared that the Director of Public Registry could not refuse to issue the applicant ’ s marriage banns just because she had undergone gender reassignment surgery. Considering these declarations to be a sufficient remedy, it refused to award compensation.

15. On appeal, by a judgment of 23 May 2011 the Constitutional Court confirmed the judgment in so far as it found a breach of Articles 8 and 12 of the Convention, however, on the basis of different reasoning. It also overturned the part of the judgment declaring that the Director of Public Registry could not refuse to issue her marriage banns. It was, in the Constitutional Court ’ s view, the lack of legislation providing for a registered life partnership for people in the applicant ’ s position which breached the applicant ’ s Article 8 rights, as the State had failed to fulfil its positive obligation. Such a registered life partnership, which could not be a marriage and which was to be regulated by the State, would suffice as a remedy. For the same reasons, namely only because of the lack of legal provision and therefore the opportunity for the applicant to enter into a registered life partnership, and not because of her inability to marry, there had also been a violation of Article 12. It ordered a copy of the judgment to be transmitted to the Speaker of the House of Representatives.

COMPLAINTS

16. The applicant complained under Articles 8, 12 and 13 of the Convention that she was not granted an effective remedy in respect of the breach of her rights and therefore that she is still a victim of a violation of Articles 8 and 12 of the Convention .

THE LAW

17. Article 37 of the Convention provides as follows:

“1 . The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

18. By a letter dated 12 April 2013 the Government informed the Court that an out-of-court settlement had been r eached with the applicant on 10 April 2013 and that she wished to withdraw her application. The said settlement agreement, in so far as relevant, read as follows:

“ 4 . The parties are appearing on this pr esent agreement because they have reached an amicable settlement to the litigation pending between them and in particular in the proceedings before the European Court of Human Rights which agreement is subject to the following terms and conditions:

5. T he Government of Malta binds itself to present and pilot a Bill in Parliament with the purpose of making all necessary amendments in order to enable the applicant to marry a person of the sex opposite to that of the applicant ’ s acquired sex in Malta, and commits itself to applying its best efforts to secure that the said amendments will be adopted and will come into force by the end of 2013.

6. The Government of Malta is also agreeing to pay the applicant the sum of ten thousand euros (EUR 10,000) by way of compensation which sum will be paid within forty (40) days from the date of this agreement. Savin g what is provided in paragraph 7 with regard to the coming into force of amendments to the law, this payment will be in full and final settlement of any claims of the applicant for compensation, pecuniary and non-pecuniary damages, legal and judicial fees and costs for any other claims of whatsoever nature that the applicant may have against the Government of Malta, whether in respect of proceedings in Malta or outside Malta, arising out of or related to the facts which gave rise to the litigation mentioned in the above agreement .

7. The applicant on the other hand obliges herself, and authorises the Government of Malta, to inform the Registrar of the European Court of Human Rights of this settlement agreement with a view to asking the Court to strike out the case from its list. The applicant however reserves the right, which the Government of Malta accepts, to ask for the case to be restored to the list in the event that the legislative amendments which the Government of Malta is undertaking to enact are not enacted or do not come into force by the end of 2013.

8. Following the payment and legal amendment above-mentioned, applicant hereby declares that she will be fully satisfied with this settlement and will have no further claims whatsoever in respect of this issue against the Government of Malta.”

19. By a letter of 23 April 2013 the applicant was invited to submit by 21 May 2013 comments in reply to the Government ’ s letter. The applicant did not reply.

20. The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. It however, reiterates that as provided for by Article 37 § 2, the Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course, as would be the case if the Government fails to fulfil its commitment to take the above-mentioned action.

21. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

             Françoise Elens-Passos Ineta Ziemele Registrar President