Strasbourg Observers

Ambit and Scope of Article 8 in Citizenship Cases

October 23, 2011

In a recent judgment in the case of Genovese v. Malta the Court gave very few words when determining the scope and ambit of Article 8. The Court managed to exclude a right, find no violation and determine the scope in the same sentence, and, in contrary to previous citizenship cases, did not give one word more to justify its decision.

The case concerned the complaint by a British citizen, whose father is Maltese, that he was prevented from obtaining Maltese citizenship because he had been born out of wedlock. Mr Genovese complained that Maltese law prevented him from obtaining Maltese citizenship and thus discriminated against him, in violation of Article 14 in conjunction with Article 8.

The Court reiterated that the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention.  In the present case it was argued by the applicant that the issue fell within the ambit of Article 8. The Court thus reiterated that the provisions of Article 8 did not guarantee a right to acquire a particular nationality or citizenship, but it could not be ruled out that an arbitrary denial of 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. The Court referred to the admissibility decision in the case of Karassev v. Finland. The Court also mentioned that social identity was a part of “private life” and referred to the judgment in the case of Dadouch v. Malta.

Having given these three points of reference the Court stated:

“While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.” (paragraph 33)

This is the sole reasoning the Court gave regarding applicability of “private life” in the present case. In the paragraphs before the Court talked about why “family life” is not applicable, and in the paragraphs after this sentence the Court moved on to discuss applicability of Article 14. So this is what the State, the readers are left with. Now let’s take a closer look at the sentence.

The Court starts with a statement that there is no right to citizenship protected by the Convention. This goes together with the earlier mentioning of the Karassev decision where the Court had made the same statement, plus – that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8. Following this Karassev pattern, one would expect that the Court in the present case would continue by assessing whether the denial has been arbitrary. Instead the Court in the present case continues with proclaiming no violation of Article 8. This is all the Court gives. This made me wonder, where did the arbitrariness assessment go? Is it because of involvement of Article 14 that there is no need of scrutiny like that? But then, why did the Court cite the Karessev decision, including the criteria for determining the scope? If the Karassev decision is taken into account it should be pointed out that in that decision the Court has actually established two criteria for determining whether the citizenship issue falls within the scope of Article 8. Arbitrariness assessment is only one part. The second part is assessment of the impact on a person’s private life. In that instance not only did the Court not assess the arbitrariness in the Genovese, but it also failed to make the impact analysis. Or maybe the last part of the sentence has to be counted as an assessment of impact? Let’s take a look at it: “…the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.” This could be regarded as a final statement after the analysis, but the analysis is not there. The reader can only speculate what and how made the impact on the social identity. The Court didn’t elaborate more on this term, contrary to other judgments, where an attempt is made to list other elements that form personal identity before introducing new ones (see, for example, Dadouch v. Malta). I can see that it would be particularly difficult in the present case to find words to formulate the impact on social identity. The applicant submitted that the Maltese citizenship would enable him to spend an unlimited time in Malta which he could devote to fostering and deepening a relationship with his father. It must be pointed out in this regard that the judgment is about a time period from the birth of the applicant till the age of nine (the law was amended afterwards). During that time the child lived with his mother in the United Kingdom (and the applicant had British citizenship), and the Maltese father had evinced no wish or intention to acknowledge his son or to build or maintain a relationship with him.

Another option is that the sole fact of denial of citizenship had impact on social identity of the child.

A few more words from the Court would have helped clarify admissibility criteria in citizenship cases under Article 8. Clearer reasoning in turn would increase accountability of the Court, which is my underlying concern.

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