AS TO THE ADMISSIBILITY OF
Application No. 18280/91
by M.V.
against Malta
The European Commission of Human Rights sitting in private on
9 April 1992, the following members being present:
MM. C.A. NØRGAARD,
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to
- the application introduced on 20 March 1991 by M.V. against Malta
and registered on 29 May 1991 under file No.
18280/91;
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
6 December 1991 and the observations in reply submitted by the
applicant on 28 January 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Maltese citizen born in 1965 and resident in
Birkirkara, Malta. He is represented by Mr. Giovanni Bonello, an
advocate practising in Valletta.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
In June 1987, the applicant began a relationship with R., a girl
then aged fourteen. When R. became pregnant in August 1987, the
applicant intended to marry her and their families discussed what
should be done. At the beginning of 1988, however, R. broke off the
relationship and her parents told the applicant not to contact her
again.
On 30 May 1988, R. gave birth to a daughter M. and registered the
birth as "father unknown". M. was given immediately to a couple who
wished to adopt her. The applicant, on subsequently finding out about
the birth of M. in July, had his paternity officially registered by a
notarised deed on 20 July 1988. On 22 July 1988 he served on R. notice
that he was applying for access to M. and opposing any adoption.
On 20 July 1988 a formal request was filed for adoption in the
Second Hall of the Civil Court by adopters unknown. On 25 July 1988
the applicant intervened in the adoption proceedings, stating that he
wished to apply for custody and access and applying for suspension of
the adoption proceedings. On 25 July the Second Hall rejected his
application for access. It appointed a curator, Dr. C., to report on
the case. He wrote to the applicant on 22 September 1988, requesting
him to lodge written submissions. He held 10 sittings at which he
interviewed the applicant and his parents and the mother of the child
and her parents. The applicant was represented by counsel during these
proceedings.
On 28 September 1988 the applicant filed a writ of summons before
the First Hall of the Civil Court for custody of M. and requested that
the matter be dealt with urgently. The First Hall listed the case for
hearing on 2 November 1988. On that date, the case was adjourned until
16 November when the court appointed Dr. C. as Legal Referee and
further adjourned the case to April 1989 pending his report. The
applicant's application for the child meanwhile to be placed with the
Ursuline Sisters or other neutral persons and for access were refused
on 18 November 1988. A similar application dated 15 December 1988 was
rejected on 28 November 1989.
On 6 April 1989 the applicant applied to the Second Hall again,
requesting that the adoption proceedings be suspended pending the
outcome of the contentious proceedings before the First Hall, and he
applied to the First Hall for access. Both applications were refused.
On 12 May 1989 the Second Hall referred the case to the First
Hall as regarded the complaints raised by the applicant under the
European Convention on Human Rights.
The First Hall rejected his complaints on 6 February 1990. It
had before it the report of Dr. C. which concluded after interviews
with all the parties that it was in the best interests of the child to
remain with the prospective adopters. He referred to the fact that the
applicant had apparently taken no initiative between January and July
1988 and that the real impetus behind the case was the applicant's
father. He stated that when R. informed the applicant on the telephone
that she intended to place the child for adoption he responded by
saying, "Do what the hell you like as long as you keep me out of
trouble". He also considered there were doubts as to whether the
applicant intended to care for the child himself or to give it to be
adopted by his brother and his wife.
In its judgment, the First Hall found that there was no violation
of the applicant's rights under the Maltese Constitution or Articles
3, 6, 8 and 14 of the European Convention on Human Rights. It found,
inter alia, that:
"the applicant has a right of respect for his illegitimate family
which includes the child ..."
It considered however that his interests were outweighed by the
interests of the child. It found that the case had been pursued with
all necessary expeditiousness and that the refusal of access in the
interests of the child could not amount to inhuman treatment. As
regarded the applicant's complaint of discrimination, it considered
that the difference in treatment between married and unmarried fathers
had reasonable justification.
The Court went on to comment that in this particular case the
applicant had demonstrated a lack of interest in the child since he
made no contact with R. during the last five months of her pregnancy
and when R. phoned him at work after the birth did not go to the phone
to take the call.
The applicant appealed to the Constitutional Court, raising
Articles 3, 8 and 14 of the Convention. Following a hearing, the case
was adjourned on 18 May 1990 for judgment. The applicant's application
to the Constitutional Court for access was postponed until final
judgment.
Meanwhile, the applicant's request for access was again refused
by the First Hall on 18 May 1989 on the ground that an application had
been filed with the Constitutional Court. A further request of 21 June
1989 was refused on 12 July 1989 on the basis that the proceedings were
soon to be terminated and it was not in the minor's interests for
access to be granted.
On 22 April 1991 the Constitutional Court rejected the appeal.
In the proceedings before the Maltese courts, the applicant was
represented by a lawyer.
RELEVANT DOMESTIC LAW AND PRACTICE
RIGHTS OF NATURAL FATHERS
Section 90 of the Maltese Civil Code provides as follows:
"(1) The parent who has acknowledged an illegitimate child
shall have in regard to him all the rights of paternal
authority, other than the legal usufruct.
(2) Where the acknowledgment is made by both parents,
parental authority shall be exercised by the father."
ADOPTION
The Maltese law governing adoption is set out in the Civil Code
CAP. 16, Title III.
Section 115 provides, inter alia:
"(3) Subject to the provisions of section 117, an adoption decree
shall also not be made -
(a) in any case other than the case of an illegitimate
person except with the consent of every person who is a
person who is parent of the person to be adopted and is
alive:
(b) in the case of an illegitimate person except with the
consent of the mother if she is alive...
(4) Subject to the provisions of section 117 before an adoption
decree is made the court shall-
(a) in the case of an illegitimate person hear the natural
father if he has acknowledged the person to be adopted as
his child or if the court is satisfied that he has
contributed towards his maintenance or has shown a genuine
and continuing interest in him..."
Section 119 provides inter alia :
"(1) the court before making an adoption decree shall be
satisfied -
(a) that every person whose consent is necessary for the
making of the adoption decree and whose consent is not
dispensed with has consented to and understands the nature
and effect of the adoption decree...
(b) that the decree if made will be for the welfare of the
person to be adopted..."
COMPLAINTS
The applicant complains of inhuman and degrading treatment
contrary to Article 3 of the Convention, as a result of being deprived
of any form of access to his daughter. The applicant also complains
under Article 8 of the Convention of interference with his right to
family life in that his child was given for adoption despite his
application, in that he has been refused all access since her birth and
deprived of her custody although he is a fit parent.
The applicant also complains under Article 6 of the Convention
of the length of the proceedings in which, despite the urgency of the
matter, there have been several adjournments, in particular a delay of
11 months for the judgment of the Constitutional Court. The applicant
complains that he did not have a fair and public hearing since the
adoption proceedings were confidential and the applicant was not
informed of the identity of the adopters and has thus been unable to
present evidence as to their fitness.
The applicant also complains of discrimination contrary to Article
14 of the Convention in conjunction with Article 8. He complains in
particular that a married father of a child can withhold his consent
to adoption whereas an unmarried father's consent is unnecessary. He
further complains of discrimination in that the mother of a child born
out of wedlock retains the right to withhold consent to adoption.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 May 1991 and registered on
29 May 1991.
On 7 July 1991 the Commission decided not to apply Rule 36 of its
Rules of Procedure in this case.
On 17 October 1991 the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the complaints made under Articles 6,
8 and 14 of the Convention. It also decided to grant the application
priority under Rule 33 of its Rules of Procedure.
The Government's observations were submitted on 6 December 1991
and the applicant's observations in reply were submitted on 28 January
1992.
The Commission granted the applicant legal aid on 10 April 1992.
THE LAW
1. The applicant complains of inhuman and degrading treatment
contrary to Article 3 (Art. 3) of the Convention as a result of being
denied any form of access to his daughter.
Article 3 (Art. 3) provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that the case-law of the Convention organs
establishes that ill-treatment must attain a certain minimum level of
severity if it is to fall within the scope of the above provision (see
e.g. Eur. Court H.R., Ireland v. the United Kingdom judgment of 13
December 1977, Series A No. 25, p. 65, paras. 162-164).
The Commission notes that the applicant did not have custody of
his daughter who was born out of wedlock and that his applications for
access and custody were refused in the course of the proceedings
instituted by him in the domestic courts. The Commission is satisfied
that distressing as the outcome of these proceedings may have been for
the applicant, it cannot be considered in the circumstances of this
case as attaining the level of seriousness necessary to constitute
inhuman or degrading treatment within the meaning of Article 3
(Art. 3) of the Convention. The Commission has had regard in this
respect to its findings below under Article 8 (Art. 8) of the
Convention that the interference was "in accordance with the law" and
in the interests of the child.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 8 (Art. 8) of the
Convention that he has been refused custody of and access to his
daughter although he is a fit parent.
Article 8 (Art. 8) of the Convention provides:
"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."
The Government have submitted that the applicant did not enjoy
a "family life" with his daughter within the meaning of the first
paragraph of Article 8 (Art. 8), having regard in particular to the
shortness of the applicant's relationship with the child's mother.
They submit that a mere blood link is insufficient to bring the
relationship within this provision. The applicant submits that Article
8 (Art. 8) cannot be construed as only protecting "family life" which
has already been established and must extend to allowing a natural
father to develop a family life with his child born out of wedlock.
The Commission recalls that the existence or not of a family life
falling within the scope of Article 8 (Art. 8) will depend on a number
of factors, of which previous cohabitation is only one, and on the
circumstances of each particular case (see e.g. No. 12402/86, Dec.
9.3.88, D.R. 55 p. 224). The application of this principle extends
equally to the relationship between natural fathers and their children.
The Commission finds however that it is unnecessary for the reasons
given below, to decide whether the applicant has established sufficient
links with the child for the relationship to fall within the scope of
Article 8 (Art. 8).
The Commission has examined whether the alleged interference is
justified under Article 8 para. 2 (Art. 8-2) of the Convention, namely,
whether it is "in accordance with the law", pursues one or more of the
legitimate aims enumerated in Article 8 para. 2 (Art. 8-2) and whether
it is "necessary in a democratic society" for one or more of these
aims.
The Commission recalls that the decisions concerning access and
custody were taken by the First Hall of the Civil Court and upheld by
the Constitutional Court. The Commission finds no indication that
these decisions were in any way outside the competence of these organs
or contrary to Maltese law. Further, the Commission notes that the
decisions were taken as being in the best interests of the child. It
therefore finds that they were "in accordance with the law" and for the
legitimate aim of protecting the child's health and rights.
The question remains whether the decisions were "necessary"
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The case-law of the Commission and the Court establishes that the
notion of necessity implies that the interference corresponds to a
pressing social need and that it is proportionate to the aim pursued.
Further, in determining whether an interference is necessary the
Commission and the Court will take into account that a margin of
appreciation is left to the Contracting States, which are in principle
in a better position to make an initial assessment of the necessity of
a given interference (see e.g. Eur. Court. H.R., W v. the United
Kingdom judgment of 8 July 1987, Series A no. 121, p. 27, para. 60).
The Commission recalls that the First Hall acknowledged that the
applicant had a right to respect for his family born out of wedlock but
considered, inter alia, that the applicant had demonstrated a lack of
interest in the child. It concluded in the circumstances of the case
that the interests of the child lay in adoption. The Commission recalls
that the report of the Legal Referee before the First Hall also
indicated that the real impetus behind the case was the applicant's
father and that it was unclear whether the applicant intended in any
case to look after the child himself or place it instead to be adopted
by his brother and his wife. The Commission further notes that the
applicant's relationship with his girlfriend was of a very short
duration lasting only a number of months. She was also only 14 years
of age at the relevant time, which is below the age of consent for
sexual intercourse in Maltese law.
The Commission also recalls that the applicant was present at the
hearings before the courts and was represented by a lawyer. The
applicant therefore had the possibility of putting forward any views
which in his opinion would be decisive for the outcome of the case.
With regard to these facts, the Commission finds that the procedural
requirements implicit in Article 8 (Art. 8) were satisfied since the
applicant was involved in the decision-making process to a degree
sufficient to provide him with the requisite protection of his
interests (see e.g. W v. the United Kingdom judgment, loc. cit., pp.
28-29, paras. 63-65).
The Commission therefore finds that, bearing in mind the margin
of appreciation accorded to the domestic authorities, and having regard
to the nature of the applicant's relationship with the mother of the
child, any interference which might have occurred in the present case
was justified under the terms of Article 8 para. 2 (Art. 8-2) of the
Convention as being "necessary in a democratic society" for the
protection of health and for the protection of the rights of others.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains under Article 6 (Art. 6) of the
Convention of the length of the proceedings and that he did not have
a fair and public hearing since the adoption proceedings were
confidential and he was not informed of the identity of the prospective
adopters and thus unable to comment on their fitness.
Article 6 para. 1 (Art. 6-1) of the Convention provides:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the
interest of morals, public order or national security in a
democratic society, where the interests of juveniles or the
protection of the private life of the parties so require,
or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would
prejudice the interests of justice."
The Commission notes first of all that under Maltese law, the
father of a child born out of wedlock who has acknowledged his
paternity enjoys parental rights in respect of that child. In these
circumstances, the Commission finds that the proceedings before the
courts dealing with issues of adoption and custody of and access to the
applicant's daughter must be considered as involving the determination
of his civil rights and obligations within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
The Commission has therefore examined whether the length of the
proceedings exceeded a reasonable time. They commenced on 22 July 1988
and closed on 22 April 1991 having lasted 2 years and 9 months.
The Commission recalls that the reasonableness of proceedings
must be assessed in the light of the particular circumstances of the
case and with the help of the following criteria: the complexity of
the case, the conduct of the parties and the conduct of the authorities
dealing with the case (see Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
The Commission notes that the case involved important and
sensitive questions relating to the welfare of the child which required
careful consideration and investigation by the courts. The Commission
finds that in the circumstances of the case the applicant's case was
decided with reasonable expedition. While it took 11 months to deliver
the decision of the Constitutional Court, the Commission finds that
this period is not in the circumstances sufficient to render
unreasonable the time taken for the proceedings as a whole.
As regards the applicant's complaints that the adoption
proceedings were confidential and that he was not informed of the
identity of the adopters, the Commission has had regard to the nature
of these proceedings which dealt with the welfare and future of a
child. There is nothing in the circumstances of the case to indicate
that the confidentiality of the proceedings which were necessary to
safeguard the interests of the child prejudiced the applicant. The
Commission recalls that under Maltese law the court has a duty to hear
the natural father in the course of adoption proceedings and that the
applicant in this case had the opportunity to present his views as to
the future of his daughter and was represented in these proceedings,
which determined the issues on the merits. The Commission does not
consider that the guarantees of Article 6 (Art. 6) required in addition
that the applicant be informed of the identity of the prospective
adopters.
The Commission concludes therefore that these complaints are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant also complains of discrimination contrary to
Article 14 (Art. 14) of the Convention in that as an unmarried father
he has no power to withhold consent to an adoption of his child whereas
a married father and unmarried mother can.
Article 14 (Art. 14) of the Convention provides:
"The enjoyment of the rights and freedoms set forth in this
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 Commission recalls that whether a difference in treatment
constitutes a discrimination in the sense of Article 14 (Art. 14)
depends on whether there exists an objective and reasonable
justification. The difference in treatment must pursue a legitimate aim
and there must be a reasonable relationship of proportionality between
the means employed and the aim sought to be realised (see eg. Eur.
Court H. R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,
Series A no. 94, p. 35, para. 72, and Inze judgment of 28 October 1987,
Series A no. 126 p.17-18, paras. 36-40).
In the present case, the Commission notes that while the
applicant had no right to withhold consent to the adoption of his child
born out of wedlock, he had the opportunity as provided for under
Maltese law to put forward his views as to the child's future and to
participate in the proceedings. The Commission also recalls the
background circumstances of the case - in particular, that the mother
of the child was at the relevant time a 14 year old girl below the
legal age of consent and that the applicant's relationship with her was
of very short duration. It notes from the report of the Legal Referee
that the applicant had shown little interest in the child during the
mother's pregnancy and that it was doubtful whether he intended in fact
to take responsibility for the child himself. In these circumstances,
the Commission considers that there was an objective and reasonable
justification for not giving the applicant the right to withhold
consent to the adoption.
The Commission therefore concludes that the facts of this case
fail to disclose any appearance of a violation of Article 14 of the
Convention read in conjunction with Article 8 (Art. 14+8).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NORGAARD)
Full & Egal Universal Law Academy