Communicated on 26 May 2015

FIFTH SECTION

Application no. 30623/13 Claudine DESIRA and Moamar Ali Melad ELTARHUNI against Malta lodged on 5 May 2013

STATEMENT OF FACTS

The applicants, Ms Claudine Desira and Mr Moamar Ali Melad Eltarhuni, are Maltese and Libyan nationals, who were born in 1992 and 1985 respectively and live in Zabbar. They are r epresented before the Court by D r J. Brincat, a lawyer practising in Malta.

A. The circumstances of the case

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

1. Background to the case

Mr Eltarhuni arrived in Malta on 30 December 2005 and was granted a visa.

Subsequently Mr Eltarhuni was charged before the Court of Magistrates in connection with a violent incident which had occurred in the apartment in which he was residing. Following seven months of detention on remand the applicant was granted bail and was released. The court ordered Mr Eltarhuni not to leave Malta.

By a judgment of 9 March 2010 the applicant was cleared of the charge of attempted murder, but found guilty of possessing a knife, without a license. He was sentenced to ten months imprisonment.

Mr Eltarhuni expiated his punishment while his appeal was pending. By an appeal judgment of 2 December 2010 the applicant was acquitted of all the charges.

Pending the criminal proceedings, in 2006, Mr Eltarhuni met the first applicant, who at the time was fourteen years of age and they entered into a relationship. Mr Eltarhuni moved in to the house of the Desira family and has lived there ever since.

A request to issue marriage banns for the couple was rejected on 17 April 2010 on the basis that the first applicant was too young and required her parents ’ approval. Once her parents ’ approval was granted the applicants ’ request was again refused and at the time Mr Eltarhuni was 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 the applicant, originally because his passport was held by the police in connection with the court case, and later for unspecified reasons.

2. Civil proceedings

On 1 December 2009, the applicants filed a request before the Civil Court (Second Hall) in its voluntary jurisdiction asking the court to order the Marriage Registrar to publish their banns.

By a decree of an unspecified date, the Civil Court (Second Hall) in its voluntary jurisdiction rejected their request on the basis that the applicants had not submitted the relevant documentation required by law. It noted that the refusal of the registrar had been a result of the fact that the second applicant had failed to submit a series of 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. Further, the second applicant had been waiting for a trial by jury against him.

On 29 April 2010 the applicants reiterated their request before the Civil Court (Second Hall) in its voluntary jurisdiction arguing that the visa requirement was not laid down in the law. They further requested the court, in the event that it upheld the existence of the visa requirement, to refer the case to the competent court in relation with Articles 8 and 12 of the Convention.

During these proceedings the second applicant submitted a certified good-conduct certificate, a certified free status certificate and a certified birth certificate.

Pending these proceedings the applicants had also submitted their case for examination by the ombudsman. By a decision of 22 April 2010 the ombudsman was of the view that the second applicant ’ s failure to have a visa could not be an obstacle to the issuance of marriage banns and eventual marriage. The applicants relied on this decision during the proceedings.

On 3 August 2010 the Civil Court (Second Hall) in its voluntary jurisdiction rejected the applicants ’ request on the basis that it appeared that the second applicant did not submit the requisite documents, “without prejudice to any rights of the applicants of obtaining constitutional redress”.

3. Constitutional redress proceedings

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

By a judgment of 23 February 2012 the Civil Court, in its constitutional jurisdiction, considered that the applicants had exhausted ordinary remedies and no further remedies were available, it thus found a breach of Article 12 in respect of the applicants ’ rights. The court considered that the refusal had not been justified, and it thus ordered the authorities to issue the relevant banns. In particular it noted that Article 7 (2) and (5) of the Marriage Act did provide that a passport or a visa were to be submitted in order to issue marriage banns. While it was true that certain 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 Mr Eltarhuni ’ 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 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 to require a visa. In the circumstances of the case the interference was therefore disproportionate. The court rejected the remainder of the claims because the applicants ’ family life had not been affected in any way and because no discrimination had been proved.

The respondents appealed.

By a judgment of 9 November 2012 the Constitutional Court reversed the first-instance judgment. It considered that the applicants had failed to exhaust 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. The Constitutional Court highlighted that this procedure was a normal and ordinary procedure, and one regularly used, and there was nothing impeding the applicants from instituting such proceedings.

Pending these proceedings, in 2011 the applicants had a son.

B. Relevant domestic law and practice

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.

(6) The Registrar may administer oaths for the purposes of this Act.

(7) Where banns have been published in accordance with the provisions of this Act and it appears to the Registrar that there is no legal impediment or other lawful cause why the marriage should not take place, the Registrar shall, at the request of either of the parties to be married, issue a certificate that the banns have been so published and indicate therein, in addition to other relevant information, the date of the completion of such publication.

(8) Subject to the provisions of article 10, no person shall officiate at a marriage unless a certificate issued in accordance with sub-article (7) in respect of the persons to be married has been produced to him; and that certificate or a certificate issued in terms of article 10 shall be final and conclusive proof of its contents.”

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.”

Article 35 of the Code of Organisation and Civil Procedure (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.”

COMPLAINT

The applicants complain under Article 12 of the Convention that they were denied the right to marry on grounds which were not lawful.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted domestic remedies in respect of their complaint under Article 12? In particular, in the light of the fact that issues arising in the context of the Marriage Act may be brought before the Civil Court (First Hall) in its ordinary jurisdiction, but also in certain cases (such as the present one) before the Civil Court (Second Hall) in its voluntary jurisdiction, is the former an alternative remedy to that pursued by the applicants? Further, in so far as the Constitutional Court considered that the applicants should have brought a new case before the Civil Court (First Hall) in its ordinary jurisdiction, following their action before the Civil Court (Second Hall) in its voluntary jurisdiction, would such a remedy have constituted an effective remedy for the purposes of Article 35 § 1 of the Convention in the light of the Court ’ s case-law ( see, for example, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009) and given the impact of the duration of such additional proceedings on the applicants ’ enjoyment of their right to marry?

2. Has there been a violation of the applicant ’ s right to marry contrary to Article 12 of the Convention? In particular did the applicable law meet the standards of accessibility and clarity required by the Convention? And was the limitation imposed on the applicants reasonable (see, for example, O ’ Donoghue and Others v. the United Kingdom , no. 34848/07, ECHR 2010 (extracts))?