1177th meeting – 11 September 2013

Appendix 1 2

(Item H46-1)

Resolution CM/ ResDH (2013)160

Mizzi against Malta

Execution of the judgment of the European Court of Human Rights

(Application No. 26111/02, judgment of 12 January 2006, final on 12 April 2006)

(Adopted by the Committee of Ministers on 11 September 2013 at the 1177th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established;

Recalling that the respondent State ’ s obligation , under Article 46, paragraph 1, of the Convention , to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)652 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of j udgments of the European Court of Human Rights – Action r eport

Mizzi v. Malta ( A pplication No. 26111/02, judgment final on 12/04/2006)

Case s ummary

1. Case description:

The case concerned a violation of the applicant ’ s right of access to a court in that he was denied the possibility of obtaining a judicial determination of his claim that he was not the biological father of a child born to his wife in 1967 several months after their separation. Until 1990, the applicant was prevented from bringing such a claim since the Maltese Civil Code permitted the denial of paternity only in cases of adultery and where the birth had been concealed, which did not apply. Following an amendment, the law permitted claims in paternity cases within 3 months after birth. This time-limit was raised to 6 months in 1993. The applicant was barred at the material time from using this remedy. Despite these legal limitations, the Civil Court in 1997 accepted the applicant ’ s request based on DNA evidence establishing that he was not the child ’ s father, holding that Maltese law violated Article 8 of the Convention. This judgment was quashed by the Constitutional Court.

The European Court held that the wording of the relevant provisions of the Civil Code coupled together with the Constitutional Court ’ s refusal to grant the applicant leave for introducing an action for disavowal led to the practical impossibility of denying paternity and impaired the essence of the applicant ’ s right to a court (violation of Article 6 § 1).

The European Court also held that a fair balance had not been struck between the general interest of the protection of the legal certainty of family relationships and the applicant ’ s right to have the legal presumption of his paternity reviewed in light of the biological evidence (violation of Article 8).

Finally, the Court held that, as a result of the rigid application of the time limits coupled with the Constitutional Court ’ s refusal to allow any exceptions which meant that the applicant was deprived of the exercise of the rights guaranteed by Articles 6 and 8, the difference in treatment between the applicant and other interested parties (whose right to challenge the legitimacy of a child born in wedlock were not subject to any time-limit) was not proportionate to the aims sought to be achieved (violation of Article 14 in conjunction with Articles 6 § 1 and 8).

Individual m easures

2. Just satisfaction :

The just satisfaction (for non-pecuniary damage and legal costs and expenses) awarded has been paid and evidence previously supplied.

3. Individual measures :

The Civil Code (Chapter 16 of the Laws of Malta) was amended in 2007 (by the addition of Article 70 (4)) to permit persons in the same position as the applicant to issue an action for disavowal (for details on the legislation, see the general measures set out below). As a result, the applicant instituted such an action before the Civil Court. The Maltese authorities are of the opinion that the judgment does not require the adoption of any further individual measures.

General m easures

4. General measures :

Article 70(4) of the Civil Code was brought into force in 2007. This provided that any applicant who brought a claim which related to a child born prior to 1993 might benefit from the reforms enacted in 1993 provided that they brought their claim before 31 December 20 08. Therefore, people in the same position as the applicant (and the applicant himself) had a period of one year from 2007 (when the amendment came into force) until 31 December 2008 to bring an application repudiating paternity before the Maltese Courts.

Article 73 of the Civil Code was amended by the insertion of two new provisions allowing, upon the authoris ation of the Court, the institution of an action for the repudiation of a child even after the time limits established by law. Domestic courts are now permitted, after examination of the circum stances of the case, to authoris e a husband to institute an action to disown a child born in we dlock outside the relevant time limits.

The above changes in legislation will avoid any further similar violations in the future.

5. Publication and d issemination :

The judgment was published and disseminated to the Constitutional Court. All judgments of the European Court in which Malta features as a party are automatically sent out to the competent authorities and are publicly available via the website of the Ministry for Home Affairs and National Security which provides a direct link to the European Court ’ s website.

The judgment received media coverage by local newspapers (article published on the Times of Malta online website of 13 January 2006 entitled “ Maltese courts wrong to disallow DNA evidence ” ).

Judgment features in the publication in the names “ Malta at the European Court of Human Rights 1987 – 2012 ”, Sammut , Cuignet & Borg, 2012.

State of execution of judgment

The Maltese authorities consider that all necessary individual and general measures have been taken to execute the judgment and that the case should be closed.