Child may sue for damages for murder of father, even if child was unborn when murder took place

According to the plaintiff the defendant was responsible for the father's death and as a result both mother and son suffered damages. 

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Malcolm Mifsud
24 December 2015, 8:00am
Mr Justice Lawrence Mintoff held that a foetus has rights under Maltese law and may inherit even though the child was not born when the father died. This was held in Kaczmarek Marta in her name and for and on behalf of Jakub Osama Kaczmarek -v- Antonel Dobre, delivered on 16 December 2015.

In her application Ms Kaczmarek held that she had a relationship with Al Shazliay Saleh Osama and she became pregnant with their son Jakub. On 17 March, 2012 Saleh Osama was attacked in St Julians and died of injuries on 20 March, 2012. On 29 September, 2012 Jakub was born.

Since the father was already dead the birth certificate registered the father as unknown but following another court case Saleh Osama was registered as the father. According to the plaintiff the defendant was responsible of Mr Osama’s death and as a result both mother and son suffered damages. They asked the court to condemn the defendant to pay damages.

Antonel Dobre pleaded that at the time of death neither of the parties was entitled to inherit the deceased.

Mr Justice Mintoff in his judgement examined the evidence where Mr Osama died without a will and that Marta Kaczmarek was not married to the plaintiff. According to Article 809 of the Civil Code, if the deceased is survived by his/her children and not by a spouse, the children are to inherit. Therefore, Jakub is to inherit his father, even though he was not born at the time of death.

Article 600 of the Civil Code states that a child is incapable of receiving an inheritance, if at the time of death he/she was not conceived. The Court held that it is logical to conclude that if he was conceived at the time of death, she could be declared an heir. Article 796 of the Civil Code states:

“Persons who are incapable or unworthy of receiving under a will, for the causes stated in this Code, are also incapable or unworthy of succeeding an intestate”

The Court argued that persons who are capable of being heirs are entitled even if there is no will. Furthermore, Article 1046 stipulates that an heir of a deceased person has the right to the same action as that of permanent disability. 

However, the court was asked to determine whether a child has a right to take legal action, when the death took place when the child was not born. Mr Justice Mintoff examined Roman law, where a foetus was not considered as a person, but was an organ part of a woman. Roman law developed in allowing the foetus to have certain rights but was administered by the Praetor as a curator who took care of the interest of the unborn child. In fact this is reflected in Article 170 of our Civil Code:

“(1) If, at the time of the death of a husband without issue, the wife declares that she is pregnant, the court may, upon the demand of any person interested, appoint a curator ad ventrem with a view to preventing any supposition of birth, or substitution of child, and administering the property up to the day of the birth, under such directions as the court may deem it proper to give.”

The Court explained that there are jurists who argue that once a foetus is given birth there is a chance of life and therefore, should be protected as a person. According to 2004 Italian legislation an embryo is a legal subject.

There are jurists who distinguish between objects and persons and once something is not an object it is certainly a person. Therefore an embryo is a potential person and should be protected. Others argue that legal rights are acquired at birth. This last position is found in Italian law, however, in Maltese law there are instances where the unborn child is given rights such as the right to inheritance. 

Therefore, Jakub had a right to institute this action for two reasons. The first that there must be a connection between the cause and effect, but this need not happen at the same time. His father’s death took place when he was not born and therefore, his right to take legal action took place after his death. Our law recognises the right of the unborn child.

The Court examined whether the unmarried mother had a right to institute this action. Article 1046 of the Civil Code regulates the right of damages by heirs whether they are dependant or not on the deceased. The general principle of law is that claim of damages may be instituted by any person who can prove that there is a connection to the illegal action that caused the damages. In this case, it was proved that the plaintiff and the deceased lived together and were moving together to a new house. They were planning to get married and as such, the plaintiff could have suffered damages from the murder of her partner and as such may ask for the liquidation of such damages. 

The court then moved to turn down the defendant’s plea and ordered that the case proceed.

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Malcolm Mifsud is a partner at Mifsud & Associates.