Mercedes Carrión Barcaiztegui v. Spain

The author of the communication, dated 8 March 2001, is Mercedes Carrión Barcaiztegui, a Spanish national, who claims to be a victim of violations by Spain of articles 3, 17 and 26 of the International Covenant on Civil and Political Rights. She is represented by counsel. The Optional Protocol to the Covenant entered into force for Spain on 25 January 1985.

Ms. María de la Concepción Barcaiztegui Uhagón⁴ - the author’s aunt - held the title of Marquise of Tabalosos. By a notarized deed of 20 June 1989, she provided that on her death, her brother Iñigo Barcaiztegui Uhagón should succeed her as holder of the title. She died on 4 April 1993 without issue.

4. Concepción Barcáiztegui Uhagón was the firstborn daughter of José Barcaíztegui y Manso, the third Marquis of Tabalosos. María Mercedes Barcáiztegui Uhagón, the author’s mother, was his second daughter and Iñigo Barcaíztegui Uhagón’s elder sister. According to the author, Iñigo conceded the title to his son, Javier Barcaiztegui Uhagón. ↩

In February 1994 the author initiated a legal action against her uncle, Iñigo Barcaiztegui Uhagón, and her cousin, Javier Barcaiztegui Rezola, claiming the noble title of Marquis of Talabasos.⁵ The author claimed the greater right, since she occupied by representation the place of her mother, Mercedes Barcaiztegui - deceased on 7 September 1990 - who was the younger sister of Concepción Barcaiztegui y Uhagón and the older sister of Iñigo Barcaiztegui Uhagón. The author also claims that renunciation of the title in favour of her uncle supposes a modification of the line of succession to the noble title and a contravention of the inalienable nature of titles of nobility.

5. The author relates that she asked her cousin why her uncle had conceded the title to him. ↩

In response, counsel for the defendants cited, among other arguments, the fact that regardless of the validity of the transfer, the principle of male succession remained the preferential criterion for succession to the Marquisate of Tabalosos, which was governed not by a general norm, but by a specific act, at the royal prerogative, which did not constitute part of the legal order.

In a judgement of 25 November 1998, the Madrid Court of First Instance dismissed the author’s action, finding that the suit concerned a situation involving collateral relatives of the last holder of the title; the court abided by the judgement of the Constitutional Court of 3 July 1997,⁶ which declared the historical preferential criteria for the transmission of titles of nobility to be constitutional. These criteria are: firstly, the degree of kinship; next, sex - precedence of male descendants over female; and, thirdly, age. With regard to transfer of the title, the Madrid court determined that it did not represent a modification of the order of succession to titles of nobility.

6. This judgement prompted the Supreme Court to modify its jurisprudence, which had departed from historical precedent with regard to equality of men and women. ↩

The author claims that she has exhausted all remedies, since by virtue of the judgement of the Constitutional Court of 3 July 1997 no remedy is available to her.⁷ However, on 10 December 1998, she appealed before the National High Court. In her communication she states that despite the manifest futility of such an appeal, she submitted it with the aim of preventing her case from becoming res judicata, thereby ensuring the right to an effective remedy, as provided for in article 2, paragraph 3 (a), of the Covenant. According to the author, if the Committee decides to accept her claims, the National High Court could ultimately find in her favour in her appeal.

7. Article 38, paragraph 2, of the Constitutional Court Organization Act provides that “judgements for dismissal of appeals on matters of constitutionality and in disputes in defence of local autonomy may not be the subject of any subsequent appeal on the issue by either of these two means based on the same violation of the same constitutional precept”. ↩

The author claims that the facts submitted to the Committee for its consideration constitute a violation of article 26 of the Covenant, in that male descendants are given preference as heirs to the detriment of women, thereby placing women in a situation of unjustified inequality. She argues that preference for males in succession to titles of nobility is not a mere custom of a private group, but a precept established in legal norms, regulated by Spanish laws of 4 May 1948, 11 October 1820 and Partidas II.XV.II. The author reminds the Committee that Economic and Social Council resolution 884 (XXXIV) recommends that States ensure that men and women, in the same degree of relationship to a deceased person, are entitled to equal shares in the estate and have equal rank in the order of succession. She maintains that in this case the estate comprises a specific item, namely the title of nobility, which can be transmitted to one person only, selected on the basis of the status of firstborn. The author claims that even if article 2 of the Covenant limits its scope to protection against discrimination of the rights set forth in the Covenant itself, the Committee, in its general comment No. 18, has taken the view that article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right, prohibiting discrimination in law or in fact in any field regulated by public authorities and imposing a duty of protection on them in that regard.

The author claims that the facts constitute a violation of article 3 of the Covenant, in conjunction with articles 17 and 26. She reminds the Committee that in its general comment No. 28 of March 2000, on article 3, it drew attention to the fact that inequality in the enjoyment of rights by women was deeply embedded in tradition, history and culture, including religious attitudes.

The State party, in its written submission of 14 December 2001, argues that the communication is inadmissible by virtue of article 2 and article 5, paragraph 2 (b) of the Optional Protocol, since domestic remedies have not been exhausted. The State party asserts that the complaint embodies a contradiction, since the author claims on the one hand that she has exhausted all domestic remedies, since the judgement by the plenary Constitutional Court rules out any resubmission of the issue before domestic courts, yet, on the other hand, states that she filed an appeal with the aim of rendering effective possible views by the Committee.

The State party observes that proceedings and the successive appeals possible are regulated under the Spanish legal regime. In the present case, after the judgement by the court of first instance, it was possible to appeal before the Provincial High Court, whose decision could be set aside on appeal by the Supreme Court; if it was considered that some fundamental right had been violated, an appeal for protection could be made before the Constitutional Court. The State party argues that the author is seeking to incorporate the Committee as an intermediate judicial body between those existing under Spanish law, thus violating its subsidiary nature and the legality of domestic proceedings. The State party contends that it is contrary to law to submit a case before a domestic court and before the Committee simultaneously, and in this connection refers to the United Nations Basic Principles on the Independence of the Judiciary, arguing that to make simultaneous submissions of the complaint is to seek undue interference by the Committee with a domestic court.

The State party asserts that the communication fails to substantiate any violation of article 26, since the use of a title of nobility is merely a nomen honoris, devoid of legal or material content, and that, furthermore, the author does not argue a possible inequality before the law or that there is a violation of articles 3 and 17 of the Covenant, in view of which the State party contests the admissibility of the communication ratione materiae in accordance with article 3 of the Optional Protocol.

The State party refers to the decision by the European Court of Human Rights of 28 October 1999 that the use of noble titles does not fall within the scope of article 8 of the European Convention. It argues that while the name of the applicant does not appear in that decision, the case concerned the same subject, in view of which it requests the Committee to find the complaint inadmissible in accordance with article 5, paragraph 2 (a), of the Optional Protocol.

In its written submission of 15 April 2002 the State party reiterates its arguments on inadmissibility, and on the merits recalls that when the title of nobility in question was granted to the first Marquis of Talabasos, in 1775, it was not the case that men and women were considered to be born equal in dignity and rights. The State party argues that nobility is a historical institution, defined by inequality in rank and rights owing to the “divine design” of birth, and claims that a title of nobility is not property, but simply an honour of which use may be made but over which no one has ownership. Accordingly, succession to the title is by the law of bloodline, outside the law of inheritance, since the holder succeeding to the title of nobility does not succeed to the holder most recently deceased, but to the first holder, the person who attained the honour, with the result that the applicable rules of succession to use of the title are those existing in 1775.

The State party points out to the Committee that the author is disputing use of the noble title of Marquis of Talabasos, not with a younger brother, but with her uncle and her first cousin; that she is not the firstborn daughter of the person who held the title before, but the daughter of the sister of the deceased holder, who was indeed the “firstborn female descendant” according to the genealogical tree provided by the author herself; the State party also notes that her sex did not prevent the deceased holder from succeeding to the title before her younger brother.

The State party affirms that the rules of succession for use of the title of nobility in question are those established in Law 2 of title XV of part II of the so-called Código de las partidas (legal code) of 1265, to which all subsequent laws dealing with the institution of the nobility and the transfer of the use of noble titles refer. According to the State party these rules embody a first element of discrimination by reason of birth, since only a descendant can succeed to the title; a second element of discrimination lies in birth order, based on the former belief in the better blood of the firstborn; and, lastly, sex constitutes a third element of discrimination. The State party contends that the author accepts the first two elements of discrimination, even basing some of her claims thereon, but not the third.

The State party asserts that the Spanish Constitution allows the continued use of titles of nobility, but only because it views them as a symbol, devoid of legal or material content, and cites the Constitutional Court to the effect that if use of a title of nobility meant “a legal difference in material content, then necessarily the social and legal values of the Constitution would need to be applied to the institution of the nobility”, and argues that, admitting the continued existence of a historical institution, discriminatory but lacking material content, there is no cause to update it by applying constitutional principles.⁸ According to the State party, only 11 judgements of the Supreme Court - not adopted unanimously - have departed from the ancient doctrine of the historical rules of succession to titles of nobility, as a result of which the question of constitutionality arose, the matter being decided by the judgement of the Constitutional Court of 3 July 1997. The State party affirms that respect for the historical rules of institutions is recognized by the United Nations and by the seven European States which admit the institution of nobility with its historical rules, as it does not represent any inequality before the law, since the law does not recognize that there is any legal or material content to titles of nobility, in view of which there can be no violation of article 26 of the Covenant.

8. The State party cites a case in which the Constitutional Court rejected an appeal for protection by a person who sought to succeed to a title of nobility, but did not accept the condition of marrying a noble. ↩

The State party contends that use of a title of nobility is not a human right, or one of the civil and political rights set forth in the Covenant, and that it cannot therefore be considered part of the right to privacy, since being part of a family is attested to by the name and surnames, as regulated under article 53 of the Spanish Civil Register Act and international agreements. To consider otherwise would lead to various questions, such as whether those who do not use titles of nobility had no family identification, or whether relatives in a noble family who did not succeed to the title would not be identified as members of the family. According to the State party, inclusion of the use of a title of nobility in the human right to privacy and to a family would undermine equality of human beings and the universality of human rights.

In her written submission of 1 April 2002 the author reiterates that, in her case, it was futile to make a further submission to the domestic courts since article 38, paragraph 2, and article 40, paragraph 2, of the Constitutional Court Organization Act pre-empt reopening of consideration of the constitutionality of the Spanish legal system as it relates to succession to titles of nobility. She emphasizes that she continued with domestic remedies to avoid the case being declared res judicata, thereby preventing possible views by the Committee against the State party from being made effective. She argues that if the Committee found in her favour, for example, before the Supreme Court concluded its consideration of her appeal for annulment, she could enter the decision as evidence with sufficient effect that it would lead to a return to the former jurisprudence of equality of men and women in succession to titles of nobility, thereby obtaining effective redress for the harm suffered to her fundamental right to non-discrimination, that is, recovery of the title. The author further affirms that in accordance with the Committee’s often stated jurisprudence the victim is not obliged to use remedies that are futile.

The author claims that the ground for inadmissibility cited by the State party relating to article 5, paragraph 2 (a), is erroneous, since she was not a party to the proceedings brought by four Spanish women regarding succession to titles of nobility before the European Court of Human Rights.⁹ The author recalls the Committee’s decision in Antonio Sánchez López v. Spain that the concept of “the same case” should be understood as including the same claim and the same person.

9. Case No. 777/1997, decision dated 25 November 1999, para. 6.2. ↩

The author alleges a violation of article 3 of the Covenant, in conjunction with articles 26 and 17, since the sex of a person is an element in privacy and to accord unfavourable treatment solely by virtue of belonging to the female sex, irrespective of the nature of the discrimination, constitutes invasion of the privacy of the individual. She further argues that the title of nobility is itself an element of the life of the family to which she belongs.

In a further written submission of 12 June 2002 the author reiterates her comments on the admissibility of her complaint and argues in addition that consideration of her appeal has been unduly delayed, since five years have elapsed. As to the merits, the author asserts that the Spanish legal system regulates the use, possession and enjoyment of titles of nobility as a genuine individual right. While succession to the title occurs with respect to the founder, succession to concessions of nobility does not arise until the death of the last holder, and that as a result the laws current at that time are applicable. The author maintains that while titles of nobility are governed by special civil norms based on bloodline, that is, outside the Civil Code with regard to succession, that does not mean that succession to titles falls outside the law of inheritance by blood relatives.

The author affirms that, with regard to the rules of succession to titles of nobility referred to by the State party, in the view of many theorists and the Supreme Court’s own jurisprudence, the rule applies only to succession to the crown of Spain.

As for use of a title of nobility not being a human right, as contended by the State party, the author claims that article 26 of the Covenant establishes equality of persons before the law and that the State party violates the article in according, on the one hand, legal recognition of succession to titles of nobility while, on the other hand, discriminating against women, in which connection the lack of any financial value of the titles is without importance since for the holders they possess great emotional value. The author asserts that the title of Marquis of Tabalosos is part of the private life of the Carrión Barcaiztegui family, from which she is descended, and that even if certain family assets may not be heirlooms owing to being indivisible or having little financial value, they should enjoy protection from arbitrary interference. Accordingly she maintains that she is entitled to the protection established under article 3, in conjunction with article 17, of the Covenant, inasmuch as those provisions prevent discrimination in enjoyment of the rights protected by the Covenant. The author notes that between 1986 and 1997 the Supreme Court held that passing over women in the matter of succession to titles of nobility infringed article 14 of the Constitution, guarantee of equality before the law, a precedent that was overturned by the Constitutional Court judgement of 1997.

The author asserts that the reference by the State party to discrimination by birth with respect to titles of nobility is erroneous, since this view would hold that inheritance as a general concept was discriminatory, and that allegation of discrimination in terms of descendants was also erroneous, since that allegation referred to a situation other than that raised by the communication. She adds that consideration of progeniture in awarding a singular hereditary asset, such as a title of nobility, is a criterion that does not discriminate against men or women, or create unjust inequality, given the indivisible and essentially emotional nature of the inherited asset.

As for the information transmitted by the State party regarding the regime governing titles of nobility in other European countries, the author contends that in those countries the titles have no formal legal recognition, as they do in Spain, and that as a result any disputes that may arise in other States are different from that in the present case. What is at stake is not recognition of titles of nobility, but only an aspect of such recognition already existing in legislative provisions in Spain, namely discrimination against women with regard to succession. The author claims that for the State party the “immaterial” aspect of the title justifies discrimination against women in terms of succession, without taking account of the symbolic value of the title and the great emotional value, and that the precedence of males is an affront to the dignity of women.

Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

The State party claims that the author’s communication should be inadmissible on the basis of article 5, paragraph 2 (a), of the Optional Protocol. In this regard the Committee notes that while the complaint that was submitted to the European Court of Human Rights concerned alleged discrimination with regard to succession to titles of nobility, that complaint did not involve the same person. Accordingly, the Committee considers that the author’s case has not been submitted to another international procedure of investigation or settlement.

The State party maintains that the communication should be found inadmissible, affirming that domestic remedies have not been exhausted. Nevertheless the Committee notes the author’s argument with respect to her case that any resubmission before domestic courts would be futile, since article 38, paragraph 2, and article 40, paragraph 2, of the Constitutional Court Organization Act rule out reopening of consideration of the constitutionality of the Spanish legal system governing succession to titles of nobility. Accordingly, the Committee recalls its often stated view that for a remedy to be exhausted, the possibility of a successful outcome must exist.

The Committee notes that while the State party has argued that hereditary titles of nobility are devoid of any legal and material effect, they are nevertheless recognized by the State party’s laws and authorities, including its judicial authorities. Recalling its established jurisprudence¹⁰, the Committee reiterates that article 26 of the Covenant is a free-standing provision which prohibits all discrimination in any sphere regulated by a State party to the Covenant. However, the Committee considers that article 26 cannot be invoked in support of claiming a hereditary title of nobility, an institution that, due to its indivisible and exclusive nature, lies outside the underlying values behind the principles of equality before the law and non-discrimination protected by article 26. It therefore concludes that the author’s communication is incompatible ratione materiae with the provisions of the Covenant, and thus inadmissible pursuant to article 3 of the Optional Protocol.

10. See e.g. Views on communication Nº 182/1984 (Zwaan –de Vries vs. The Netherlands) Views adopted 9 April 1987. ↩