Courts’ refusal to grant citizenship to boy born out of wedlock discriminatory – Strasbourg court

The European Court of Human Rights said a decision by the Maltese courts to refuse Maltese citizenship to a boy born out of wedlock to a Maltese father and British mother, was discriminatory.

The court’s Chamber found in favour of the applicant by six votes to one, the dissenting judge being Maltese judge Geoffrey Valenzia.

British national Ben Alexander Genovese, from Hamilton in the United Kingdom, was born out of wedlock in the United Kingdom in 1996.

Informed by the Maltese authorities that her son could only be granted Maltese citizenship if his Maltese father recognised him on his birth certificate, Genovese’s mother applied to the courts in Scotland to have his paternity declared.

The courts declared the biological paternity of her son and his birth certificate was amended accordingly. The Maltese courts later also confirmed the paternity, ordering the father to pay maintenance.

But an application by Genovese’s mother for her son to be granted Maltese citizenship was rejected on the basis of the relevant sections of the Maltese Citizenship Act, which stated that children born out of wedlock were only eligible for Maltese citizenship if their mother was Maltese.

In January 2006, the Maltese civil court in its constitutional jurisdiction found that those sections of the Maltese Citizenship Act were discriminatory and in violation of the Constitution. In November 2008, the court further held that because of the applicable law Mr Genovese had suffered discrimination on the ground of birth, his illegitimate status, and the sex of his Maltese parent, in violation of the European Convention on Human Rights.

However, in March 2009, the Constitutional Court reversed the judgment, holding in particular that the right to citizenship was not a substantive Convention right and that granting or denying citizenship would not affect Mr Genovese’s family life, as his father refused to have any contact with him.

The European Court’s Chamber found a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8 (right to family life).

The applicant did not submit any claim for just satisfaction.

In his dissenting opinion, Judge Geoffrey Valenzia said there was 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.

However, he said that in this case there is no question of family life as this is non-existent and was acknowledged by the parties since the father was excluding any type of contact with Ben Genovese and his mother.

“The applicant was not, however, prevented in any way from fostering a relationship with the father 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.”

FULL TEXT OF THE JUDGEMENT