Malachtou v Armefti
| Jurisdiction | Chipre |
| Date | 20 January 1987 |
| Court | Supreme Court (Cyprus) |
(Triantafyllides, President; Loizou, Loris, Stylianides, Pikis, Judges)
Relationship of international law and municipal law Treaties Status in municipal law European Convention on the Legal Status of Children Born Out of Wedlock, 1975 Constitution of Cyprus, Article 169 Whether ratification of Convention by Cyprus vests Convention with superior effect to municipal legislation The law of Cyprus
Summary: The facts:The plaintiffs, who were beneficiaries under a will made in 1970, brought an action against the administratrix of the estate. A preliminary point of law arose as to whether the plaintiffs, who were the illegitimate children of the deceased, could succeed to his estate. The European Convention on the Legal Status of Children Born Out of Wedlock, 1975 (the Convention), had been ratified by Cyprus in July 1979 without reservations by the enactment of Law No 50 of 1979. Article 9 of the Convention provided:
A child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father's or mother's family, as if it had been born in wedlock.
Article 169(3) of the Constitution of the Republic of Cyprus provided:
Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.
Existing provisions of domestic law, however, distinguished between the rights of succession of legitimate and illegitimate children. The Wills and Succession Law, Cap. 195, provided, inter alia, that only the legitimate children and their descendants could succeed as lawful heirs to the estate of a deceased person. In addition, the Illegitimate Children Law, Cap. 278, effectively restricted the rights of succession of illegitimate children to the estate of the mother and her relatives by blood.
The District Court held that the Convention had been validly ratified under Article 169 of the Constitution and that, accordingly, Article 9 of the Convention would prevail over inconsistent provisions of domestic law. Illegitimate children would, therefore, have the same rights of succession as legitimate children provided that paternal affiliation had been established pursuant to Articles 3 to 5 of the Convention.
The administratrix appealed to the Supreme Court and contended that the provisions of the Convention had not become part of the law of Cyprus. She submitted that Article 169(3) of the Constitution did not apply to treaties which regulated private civil law rights and that the element of reciprocity required under that provision was not satisfied. She also claimed that the Convention was not self-executing but merely established guidelines. The administratrix maintained that the provisions of the Convention were unreasonable and contrary to the principles of equality guaranteed by Article 28 of the Constitution, because the rights of succession which the Convention granted to an illegitimate child were not extended to the father of an illegitimate child.
Held (unanimously):The appeal was dismissed. The provisions of the Convention had acquired superior force of law in Cyprus and the inconsistent provisions of the municipal law no longer applied.
(1) A convention duly ratified and concluded in conformity with Article 169 of the Constitution would have superior force of law over existing or subsequent municipal laws on the principle of lex superior derogat inferiori (p. 205).
(2) Article 169 of the Constitution did not merely apply to treaties which affected the rights and obligations of the State, but was extended to all treaties which complied with the conditions contained within it (p. 206).
(3) The condition of reciprocity in Article 169(3) could be dispensed with:
(i) where the convention provided for an international mechanism of control or supervision; or
(ii) where the convention did not merely seek to create subjective reciprocal rights amongst contracting States but to promote principles of law and moral and legal values, i.e. human rights (pp. 20612).
(4) The provisions of a convention were self-executing where, without the need for further legislation, they could be applied by the organs of the State and enforced in and by the courts (pp. 21213).
(5) The operative provisions of the Convention in question created objective rules of general application and regulated the rights and responsibilities of all individuals subject to the Cypriot law. By Law No 50 of 1979 the legislative authorities had treated the Convention as self-executing and had accordingly rendered it enforceable and applicable in Cyprus (pp.216,2256 and 2289).
(6) The object of the Convention was to better the situation of illegitimate children, to formulate common rules concerning their status and to harmonize the laws of Member States of the Council of Europe. Article 1 of the Convention also contained, in effect, an international mechanism of control for the application of the Convention. The condition of reciprocity in Article 169(3) of the Constitution had, therefore, been satisfied (pp. 21416).
(7) The provisions of the Convention were not in contradiction with the terms of Article 28 of the Constitution because the very purpose of the Convention was to protect the rights, and to ensure the equal treatment of illegitimate children (p. 216).
per Pikis J: The Legislature had intended by the enactment of Law No 50 of 1979 to implicitly repeal provisions of existing municipal laws which conflicted with, or were repugnant to, Article 9 of the Convention (pp. 2256).
The following is the text of the judgments delivered in the Supreme Court:
STYLIANIDES J, : This appeal is directed against the decision of the District Court of Limassol whereby it was decided that when a paternal affiliation is established, a child born out of wedlock has the same right of succession in the estate of his father and of a member of his father's family as if it had been born in wedlock.
Costas Christodoulou Armeftis, late of Limassol, passed away on 29th July, 1980, leaving a lawful wife. By will dated 2.4.70 he left and bequeathed part of his property to two persons, namely, Christodoulos Costa Armeftis and Maria Costa Armefti, the plaintiffs in this action. The defendant in Probate Application No. 223/80 was granted letters of administration of the estate of the late Costas Christodoulou Armeftis with the will annexed.
The plaintiffs by this action claim that they are lawful heirs of the said deceased as being his children born out of wedlock and that they and the surviving wife of the deceased are his only heirs.
After the closing of the pleadings, on the application of the defendant under 0.27(1) and (2) of the Civil Procedure Rules with the consent of the plaintiffs, the following was set down for hearing as a preliminary point of law: whether illegitimate children succeed as lawful heirs to the estate of their deceased father.
The Full District Court of Limassol, after hearing argument from counsel of both parties, decided that the Convention on the Legal Status of Children Born out of Wedlock, ratified by our Law No. 50/79, validly concluded under Article 169 of the Constitution, acquired superior force to any municipal law and, therefore, under Article 9 of the Convention a child born out of wedlock has the same right of succession in the estate of his father and his father's family as if he had been born in wedlock, provided that a paternal affiliation is established, pursuant to Article 35 of the Convention.
Learned counsel for the appellant argued that the provisions of the Convention are not enforceable law in Cyprus as Article 169.3 does not apply to treaties regulating private civil law rights amongst citizens but only applies to treaties affecting rights and obligations of the State; that the Convention is not self-executing but only provides guidelines and directives to the legislature; that the element of reciprocity, provided in Article 169.3, is not satisfied; and finally that its provisions are unreasonable and are contrary to the principles of equality enshrined in the constitution in the sense that the rights of succession granted to the illegitimate children are not granted also to the father of the illegitimate children.
Counsel for the respondents, on the other hand, supported the judgment of the trial Court on the grounds on which the first instance Court relied.
This case raises points of considerable importance: The effect and application of Article 169 of the Constitution and the position of Conventions ratified in conformity with Article 169 of the Constitution in our domestic legal order.
Though in a number of cases the Courts of this country referred to and applied provisions of the European Convention on Human Rights ratified by Law No. 39/62 as having superior force to any municipal law, the issues raised in this appeal have not been dealt with in the past.
Article 169 of our Constitution reads as follows:-
Subject to the provisions of Article 50 and paragraph 3 of Article 57-
(1) every international agreement with a foreign State or any International Organisation relating to commercial matters, economic co-operation (including payments and credit) and modus vivendi shall be concluded under a decision of the Council of Ministers;
(2) any other treaty, convention or international agreement shall be negotiated and signed under a decision of the Council of Ministers and shall only be operative and binding on the Republic when approved by a law made by the House of Representatives whereupon it shall be concluded;
(3) treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the...
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