THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 8407/05
by Alessandro SAVOIA and Svetlana BOUNEGRU
against Italy
The European Court of Human Rights (Third Section), sitting on 11 July 2006 as a Chamber composed of:
MrB.M. Zupančič, President,
MrC. Bîrsan,
MrV. Zagrebelsky,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 16 February 2005,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Alessandro Savoia, is an Italian national who was born in 1973. The second applicant, Ms Svetlana Bounegru, is a Moldovan national who was born in 1983. The couple live in Rome. They are represented before the Court by Mr G. Di Pietro, a lawyer practising in Rome.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant wanted to marry the second applicant in Italy. On 5 July 2004 he contacted the Italian Embassy in Moldova and the Ministry of Foreign Affairs, in order to acquire information about the procedure to obtain a visa for marriage purposes.
The latter institutions replied by sending information related to the application for a tourist visa.
On 23 August 2004 all relevant documents satisfying the requirements of the tourist visa were sent to the Embassy. According to the applicants, it was apparent from the information they were given that no visa for marriage purposes could be requested.
On 2 September 2004 the Italian Embassy in Moldova informed the applicants that their request would be rejected. The applicants were told that no visas had been issued in favour of Moldovan nationals for over five years.
On 23 September 2004, after all the documents necessary for the marriage had been supplied and verified, the municipality of Rome issued the couples’ marriage bans. The applicants’ lawyer made a request to the competent Italian authorities for the second applicant’s visa for marriage purposes. He did not receive any replies.
As the second applicant was pregnant, the first applicant went to Moldova in order to celebrate the marriage over there.
On 5 October 2004 the applicants got married in Moldova.
On 15 October 2004 the Italian authorities granted the second applicant a visa in her quality of an Italian national’s family member. The couple moved to Rome and started to reside there.
On 19 October 2004 the applicants presented to the Police station in Rome a request for a residence permit for the second applicant’s family members.
On 7 February 2005 the applicants addressed a registered letter to the Italian Minister of Foreign Affairs. They asked in what way it would be possible to obtain a visa for family members, in order to reunite in Italy the second applicant’s relatives. They were told that it would have been possible to allow the entry in Italy of the mother of the second applicant but not of her brothers.
On 20 February 2005 the applicants requested the Town Council to issue a written declaration stating that the matrimonial home was the residence of the second applicant. However, the Town Council could not accede to this request as the second applicant did not possess a residence permit.
On 21 February 2005 the applicants requested that the second applicant be granted Italian citizenship. Their request was rejected as according to Italian law, citizenship could be granted either after a marriage and six months of residence or after three years of marriage. Moreover, the processing of the citizenship request would have required seven hundred and thirty days.
According to the information provided by the applicants on 16 February 2005, on that date the second applicant had not obtained a residence permit in Italy.
COMPLAINTS
1. Invoking Articles 1 and 12 of the Convention, the applicants complained about the impossibility of obtaining a visa for marriage purposes.
2. Invoking Articles 8 of the Convention and 5 of Protocol No. 7, the applicants complained about the difficulties that the second applicant will encounter in obtaining citizenship.
3. Invoking Articles 1 and Article 8 of the Convention, the applicants complained that due to the practice of visa denials, their right to respect for their family life had been breached both before and after their marriage.
4. Invoking Articles 1 and Article 14 of the Convention, the applicants claimed that they have been discriminated against in the enjoyment of their rights under Articles 8 and 12 of the Convention and Article 5 of Protocol No. 7.
5. Invoking Article 13 of the Convention, the applicants claimed that the Italian judicial system did not provide any effective remedy for the alleged breaches of their fundamental rights.
THE LAW
1. The applicants considered that the impossibility of obtaining a visa for marriage purposes in favour of the second applicant constituted a breach of Articles 1 and 12 of the Convention. These provisions read as follows:
Article 1
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”
Article 12
“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.”
The Court recalls that the right to marry does not in principle include the right to choose the geographical location of the marriage. A refusal to allow entry into a State of a foreign fiancé would not contravene the individual’s right to marry under Article 12 of the Convention, if the couple could marry in the fiancé’s country of residence (see A v. the United Kingdom, no. 9773/82, Commission’s decision of 6 October 1982, and A v. the Netherlands, no. 10914/84, Commission’s decision of 6 May 1985).
In the present case, nothing shows that the applicants had encountered any serious obstacle in celebrating their marriage in the second applicant’s country of residence. Indeed, the couple got married in Moldova on 5 October 2004, which is forty-three days after the first unsuccessful application for an entry visa into Italy. The Court moreover notes that ten days later, on 15 October 2004, the second applicant was granted a visa and the Italian authorities had recognised her status as a family member of an Italian national.
Under these circumstances, the Court cannot find any appearance of a violation of the applicants’ right to marry, as guaranteed by Article 12 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicants submitted that for the purpose of obtaining Italian citizenship, the second applicant will have to go through a lengthy and difficult procedure. They invoked Articles 8 of the Convention and 5 of Protocol No. 7, which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 5 of Protocol No. 7
“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”
The Court recalls that the right to citizenship is not as such guaranteed by the Convention or its Protocols, although it cannot be excluded that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see, inter alia, Karassev v. Finland (Dec.), no. 31414/96, ECHR 1999‑II, and Kuduzovič v. Slovenia (Dec.), no. 60723/00, 17 March 2005).
In the present case, the second applicant was not denied Italian citizenship. She confined herself to complaining that the requirements laid down in the law for obtaining Italian nationality are too strict and that the procedure would be burdensome and lengthy.
The Court observes that requiring a period of certain duration of the marriage of a non-national and/or a period of residence in the country are common features of legislations regulating the granting of citizenship. Moreover, the applicants’ fears about the length of the domestic proceedings, which has not been commenced yet, are a matter of speculation. Finally, the second applicant has not shown that her current nationality has had a serious adverse impact on her private and family life. She was in fact granted a visa in her quality of an Italian national’s family member and she is currently residing in Rome with her husband. It has not been shown that the spouses enjoyed different rights and/or responsibilities because of the second applicant’s citizenship.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. Invoking Articles 1 and 8 of the Convention, the applicants complained that due to the practice of visa denials, their right to respect for their family life had been breached both before and after their marriage. Moreover, the second applicant’s relatives are not allowed to visit the couple in Italy or to permanently reside in Italy with them.
The Court has already examined the applicants’ complaints concerning the refusal of a visa for the second applicant under Article 12 of the Convention, and considers that no separate issue arises under Article 8.
As regards the alleged impossibility, for the second applicant’s family members, to visit the applicants in Italy, the Court recalls that as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory (see, among other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, pp. 33-34, § 67).
Moreover, where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. In order to establish the scope of the State’s obligations, the facts of the case must be considered (see Gül v. Switzerland, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, p. 173, § 38).
In the present case, the second applicant was allegedly told that a visa for visiting her in Italy could be granted to her mother, but not to her brothers. However, nothing shows that there would be obstacles preventing the applicants from developing family life in Moldova (see, mutatis mutandis, Gül cited above, p. 176, § 42). Moreover, nothing prevents the second applicant from visiting her relatives in Moldova. It has also not been shown that the second applicant had such close ties with her brothers that the impossibility to see them would constitute a serious interference with her family life. The Court notes, at the outset, that it does not appear that the second applicant’s family members have any attachment in Italy other than the presence of Mrs Bounegru in Rome.
Having regard to all these considerations, the Court finds that Italy has not failed to fulfil the obligations arising under Article 8 § 1 of the Convention, and there has therefore been no interference in the applicants’ family life within the meaning of that provision.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicants considered that they have been the victims of discrimination in the enjoyment of their rights under Articles 8 and 12 of the Convention and 5 of Protocol No. 7. They invoked Articles 1 and 14 of the Convention. The latter provision reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court’s case-law establishes that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002‑IV). However, not every difference in treatment will amount to a violation of Article 14. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory (Unal Tekeli v. Turkey, no. 29865/96, § 49, 16 November 2004).
A difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, for example, Petrovic v. Austria, judgment of 27 March 1998, Reports 1998‑II, p. 586, § 30, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, pp. 66-67, § 177).
In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (Abdulaziz, Cabales and Balkandali cited above, p. 39, § 82). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001).
The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996‑IV, p. 1142, § 42). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background (Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 15, § 40, and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, p. 18, § 41), but the final decision as to observance of the Convention’s requirements rests with the Court.
The Court has already noted that in the present case it has not been shown that the spouses enjoyed different rights and/or responsibilities because of the second applicant’s citizenship. The Court is therefore unable to find any appearance of a violation of Article 14 read in conjunction with Article 5 of Protocol No. 7.
As far as the rights guaranteed by Articles 8 and 12 of the Convention are concerned, the Court can accept that in order to get married and establish her family life in Italy, the second applicant might have had to comply with a number of formalities which would not have been required to an Italian citizen. It however considers that it is reasonable for States to impose such formalities on non-nationals in order to secure the effectiveness of their immigration policies. It furthermore notes that the burden imposed on the second applicant could not be seen as arbitrary, excessive or not proportionate to the aim sought to be achieved.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicants alleged that they were not given any effective domestic remedy capable of providing redress for the above alleged violations of their fundamental rights. They invoked Article 13 of the Convention, which read as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to the Court’s case-law, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (Boyle and Rice v. the United Kingdom, judgment of 24 April 1988, Series A no. 131, p. 23, § 52).
In the present case, the Court has concluded that all the applicants’ substantive claims were manifestly ill-founded. The rejection of a complaint as "manifestly ill-founded" amounts to a decision that "there is not even a prima facie case against the respondent State" (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 10, § 18). The Court is therefore of the opinion that in the circumstances of the present case, the applicants did not have any arguable grievance in terms of the Convention and that Article 13 does not apply.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy