Malta / Civil Court, Constitutional Jurisdiction / 52/2016/LSO Marie Therese Cuschieri v Attorney General

Key facts of the case: 

Ms. Cuschieri separated from her husband in 2013 and their marriage was later dissolved by the Courts in 2015. Further to the dissolution of the marriage, Ms. Cuschieri had the right to carry out all civil acts without the consent of her ex-husband. However, when she came to register a contract of sale (i.e a notarial act) she was informed by her notary that such contract would not be registered in the Public Registry unless she indicated her civil status in accordance with Article 28(1)(c)(i) of the Notarial Profession and Notarial Archives Act which states that “where any of the parties to the act is a woman, it shall also be stated whether she is a spinster, a married woman or a widow”. In the draft contract of sale after her name, as buyer, included the indication that she was divorced and her ex-husband’s name. The inclusion of a woman’s status is necessary due to the fact that women have the right to change their surname on marriage, separation or divorce. Therefore, when searches are conducted in the Public Registry these details are needed so as to know whether the property was bought before or after marriage. It is to be noted that searches are carried out through a system of “relationship” (ie by surname, parentage etc.) and not through the use of Identity Card numbers, as a computerised system allowing for the use of searches by Identity Card numbers was still in the process of being set-up. The applicant pleaded that this constituted discriminatory behaviour as (a) the article only applies these obligatory requirements when one of the parties is a woman and (b) these obligations are not required for men and therefore this proviso is not neutral and constitutes direct discrimination on the basis of gender. In addition, this also constitutes interference into the private life of the applicant which is unnecessary in a democratic society and in the interests of the public. Amongst other local and international law, the applicant claimed a breach of Article 7 and 21 of the Charter of Fundamental Rights. The applicant requested the Court to declare such provisions to be inconsistent with the aforementioned and to declare that such rights have been breached. The respondents denied any breaches of rights on the basis of the fact that the information requested was public information and could in any case be accessed by third parties.

Outcome of the case: 

The Court analysed the grounds and alleged breach of the right to privacy and the prohibition of discriminatory treatment separately. The Court made reference to Articles 8 and 14 of the European Convention on Human Rights (the “Convention”), Article 1 of Protocol No. 12 of the Convention, the Convention for the Elimination of Discrimination against Women, Article 45 of the Maltese Constitution in relation to non-discrimination on the basis of sex and related ECtHR and national jurisprudence.  The Court then took into consideration Article 7 and Article 21 of the Charter and stated that in addition to the fact that the CJEU applies the principles as interpreted by the ECtHR, the Charter has the force of law in Malta and has the same strength as the Treaties. However, the Charter is applicable in those instances that fall within the competences of the European Union. The Court considered that this particular case fell within Member State competence and therefore did not take into consideration the said Charter articles in its decision. The Court found a breach of Articles 8 and 14 of the Convention and Article 45 of the Maltese Constitution. The Court also held that the declaration of the breaches was a sufficient remedy in this particular case and ordered the judgement to be notified to the Speaker of the House of Representatives in order for it to be tabled in Parliament. The judgment confirmed the legal standing of the Charter within the Maltese legal system in that it has the force of law in the Maltese Courts on the same level as the European Union Treaties. However the applicability of the Charter is limited insofar as it is applicable only when the Member State in question is applying European Union law and not purely domestic law. Nevertheless, the Court found a breach of Articles 8 and 14 of the Convention and Article 45 of the Maltese Constitution. 

Paragraphs referring to EU Charter: 

The article cited by the applicants are the following:

Article 7 Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications.”

Article 21 Non-discrimination

“1.   Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2.   omissis”.

That apart from the fact that the European Court (CJEU) applies the principles as enunciated and interpreted by the Strasbourg Courts, it should be noted that the Charter of Fundamental Rights has the force of law in our country and is placed on the same level as the Treaties. However, the Charter considers itself to be ordinary law, as opposed to the Constitution, and is only applicable  with respect to matters that fall within the competencies and duties of the European Union. This is not the situation in this case as it deals with matters that fall within national competence.

Therefore, inasmuch as the plea is based on the Treaty, it will not be accepted due to the fact that the subject raised in front of this Court is not within Treaty competence. 

Paragraphs referring to EU Charter (original language): 

L-artikoli ccitati mir-rikorrenti huma s-segwenti:

Artikolu 7 Ir-rispett għall-ħajja privata u tal-familja

"Kull persuna għandha d-dritt għar-rispett tal-ħajja privata u tal-familja tagħha, ta' darha u tal-kommunikazzjonijiet tagħha."

Artikolu 21 Non-diskriminazzjoni

"1. Kull diskriminazzjoni bbażata fuq is-sess, ir-razza, il-kulur, l-oriġini etnika jew soċjali, il-karatteristiċi ġenetiċi, il-lingwa, ir-reliġjon jew it-twemmin, l-opinjoni politika jew xi opinjoni oħra, l-appartenenza għal minoranza nazzjonali, il-proprjetà, it-twelid, id-diżabbiltà, l-età, jew l-orjentazzjoni sesswali għandha tkun projbita.

2 - omissis."

Illi aparti li l-Qorti Ewropea (CJEU) tapplika l-principji kif enuncjati u interpretati mill-Qorti ta' Strasbourg, ghandu jigi senjalat li l-Karta tad-Drittijiet Fundamentali ghandha l-forza ta' Ligi f'pajjizna u hija mqeghda fuq l-istess livell daqs it-Trattati. Madanakollu l-Karta titqies li hija ligi ordinarja b'differenza mal-Kostituzzjoni u hija applikabbli biss fir-rispett ta' materja li taqa' tal-kompetenzi u kompiti tal-Unjoni Ewropea. Dan mhuwiex il-kaz odjern li jirrigwarda materja ta' kompetenza nazzjonali.

Ghaldaqstant in kwantu li t-talba hija imsejsa fuq it-Trattat, mhiex ser tigi milqugha minnhabba li l-kwistjoni sollevata quddiem din il-Qorti tesorbita mill-kompetenza tat-Trattati.

Language: 
Maltese
Deciding body (original language): 
Prim’ Awla (Sede Kostituzzjonali)
Language: 
Maltese