The state’s duty to ensure that fundamental human rights are safeguarded when Church annulments are recognised by the civil courts is highlighted in a European Court of Human Rights (ECHR) judgement, which may also have an effect on the cases of people whose marriage has been declared null by the Maltese Curia’s ecclesiastical tribunal.

In the ECHR Pellegrini v Italy case, an Italian woman’s marriage was annulled by a decision of the Vatican courts, and that annulment was declared enforceable by the Italian courts. But the woman claimed that the ecclesiastical courts had breached her defence rights and therefore her right to a fair trial.

In a sitting composed of, among others, Maltese judge Giovanni Bonello, the court handed down a judgement in 2001 in which it found: “… that the Italian courts breached their duty of satisfying themselves, before authorising enforcement of the Roman Rota’s judgement, that the applicant had had a fair trial in the proceedings under canon law”.

The ECHR judgement points out that the Vatican has not ratified the European Convention on Human Rights, Article 6 of which provides: “1. In the determination of his civil rights and obligations … everyone is entitled to a fair… hearing … by [a]… court …”

Under a concordat between Italy and the Vatican, “a judgement of the ecclesiastical courts annulling a marriage, which has become enforceable by a decision of the superior ecclesiastical review body, may be made enforceable in Italy at the request of one of the parties by a judgement of the relevant court of appeal”.

This is similar to the situation in Malta, where, under a concordat that had been signed with the Vatican in 1993, “The Republic of Malta recognises for all civil effects… the judgements of nullity and the decrees of ratification of nullity of marriage given by the ecclesiastical tribunals and which have become executive.”

Sources working in the legal field point out that the ecclesiastical tribunal has supremacy over the civil courts since civil annulment proceedings have to be suspended if Church annulment proceedings are underway.

And while civil annulment decisions are taken within a year or so, Church annulment proceedings may take up to five or six years, or possibly more, to be concluded.

Unfortunately, there are a number of requisites of what constitutes a fair trial that are missing in the Maltese Church tribunal, and there have been instances in which there had been a clear breach of human rights, including the right to have the lawyer of your choice as your legal representative in annulment proceedings.

This was one of the issues brought up by the chairperson of the divorce movement, Deborah Schembri, whose right to practice in the Catholic tribunal was withdrawn because, according to judicial vicar Mgr Arthur Said Pullicino, “she was spreading false doctrine on the indissolubility of marriage”.

Last Sunday, during an event organised by the divorce movement, Dr Schembri pointed out that she never intended making a big deal of the matter.

“What happened to me is secondary. What worries me the most is that the fundamental right to have the lawyer of your choice represent you has been breached. As a lawyer, I have a duty to my clients who are suffering due to broken marriages.”

The president of the Chamber of Advocates, Reuben Balzan, has also pointed out that people have the right to be represented by the lawyer of their choice.

Another problem in the Church tribunal proceedings arises when a lawyer represents a relative. If the lawyer also happens to be the main witness in the annulment case, he or she has no right to act as legal representative and to testify at the same time.

So the party involved would either have to forfeit his or her right to the lawyer of their choice, or the right to a fair trial in the sense that all the details of the case are heard in the tribunal proceedings in their entirety.

Another issue is that the parties involved in Church annulment proceedings have no right, for example, to be present when their case is being heard; only their lawyers can be present. This means that the parties have no right to rebut anything said in testimonies made against them.

Moreover, until the case is concluded, only lawyers have access to the documented proceedings; the people involved in the annulment case can only read the documentation once the whole process is over, and they have no right to a copy of the proceedings.

Lawyers do have the right to a copy of the proceedings, but only after having signed a document saying they will not show the documentation to anyone.

The situation in the Pellegrini v Italy case is similar. The ECHR judgement states: “The Italian courts do not appear to have attached importance to the fact that the applicant had not had the possibility of examining the evidence produced by her ex-husband and by the “so-called witnesses.”

“However, the Court reiterates… that each party to a trial, be it criminal or civil, must in principle have the opportunity to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision.”