DISSENTING OPINION OF JUDGE VALENZIA

On the separate question of admissibility (paragraph 38 of the judgment) I voted in favour because I felt that if the applicant proved that the breach of Article 14 could be pegged with Article 8, he would succeed in his complaint. However, when the merits were examined I considered that this was not the case, so I voted against the finding of a violation with regard to Article 14 in conjunction with Article 8.

In the present case there is no question that there was a breach of Article 14 because of the distinction based on status – a child born in wedlock as distinguished from a child born out of wedlock.

It is accepted that only an arbitrary refusal of citizenship may raise an issue under Article 8. In this case the arbitrariness has been established under Article 14. This article, however, cannot stand alone and has to be pegged to a Convention right.

Article 8 safeguards ‘family life’, but in this case there is no question of family life as this is non-existent and has been acknowledged by the parties since Mr G is excluding any type of contact with the applicant and his mother. The applicant was not, however, prevented in any way from fostering a relationship with Mr G or claiming hereditary rights. This relationship does not depend on the applicant being granted citizenship. It has also been pointed out that as a European Union citizen, the applicant has freedom of movement and other rights such as residence and work in Malta. Today there is also no obstacle to his applying for citizenship due to a change in the law. It seems that the free education that the applicant is seeking in Malta by obtaining Maltese citizenship is also available in the country where he was born.

In the obvious absence of family life under Article 8, however, the Court has said that the denial of citizenship in the present case may raise an issue under this Article because of its impact on the private life of the applicant, which concept is wide enough to embrace aspects of his social identity.

The Court, however, does not define social identity nor does it explain how citizenship defines the applicant’s identity. The concept of private life is so vast that it embraces everything, even things pertaining to public law. Denial of citizenship always has an impact in a general way on any person, so this alone cannot be taken as the reason why social identity has been affected.

In this particular case the applicant produced no proof to show how this deprivation of Maltese citizenship has affected his private life and impacted on his social identity. This effect is being presumed and taken for granted by the Court. It is to be noted that the applicant was born in 1996 and his mother had already started proceedings in 1996 with the Malta High Commission. Constitutional proceedings started in Malta in 2006 when the applicant was nine years old. Nowhere in the proceedings was there any proof of or claim made as to how the applicant was affected.

Therefore the facts in this case do not warrant the Court pushing this concept too far. “The jaws of Article 8 have already been opened wide enough”. [1] There are limits on the personal sphere and while certain measures by the State can affect an individual from developing his personality, it does not mean that all these measures shall be considered as an interference with his private life. This is so in the present case.

[1] Comment by Rosalind English.