as to the facts
The first applicant [Mrs Pilar de la Cierva Osorio de Moscoso], a Spanish national, was born in 1922 and lives at Linares (in the province of Jaén).
The second applicant [Mrs María de la Consolacíon Fernandez de Cordoba], a Spanish national, was born in 1942 and lives in Seville.
The third applicant [Mrs María Luisa Teresa Roca y Fernandez Miranda], a Spanish national, was born in 1948 and lives at Pamplona.
The fourth applicant [Mrs Carmen O’Neill Castrillo], a Spanish national, was born in 1920 and lives in Seville.
The applicants were represented before the Court by Mr R. Pelayo Jiménez, of the Madrid Bar.
The facts of the case, as presented by the parties, can be summarised as follows.
A. The circumstances of the case
1. Application no. 41127/98
The first applicant is the niece of Isabel Osorio de Moscoso y López, who died on 31 December 1981, and the daughter of Doña Rafaela Osorio de Moscoso y López. She has a younger brother, Rafael de la Cierva Osorio de Moscoso. Their aunt Isabel held three peerages: she was the Marquise of Mairena, the Countess of Arzacóyar and the Countess of Cardona and, by virtue of her latter title and a decision of the Supreme Court of 23 January 1987, a member of the body of the “Spanish grandees”.
Doña Isabel left no descendants or ascendants on her death. Since her sole surviving relative through a collateral branch was her sister, Doña Rafaela (the applicant’s mother), the right to possess, use and enjoy her peerages was transmitted automatically to Doña Rafaela. Doña Rafaela died on 15 October 1982. Under the succession charters her peerages were inherited by the first applicant’s younger brother. The first applicant did not accept the provisions of the charters and made an application for judicial review to first-instance judge no. 51 of the Madrid Court, alleging in particular a violation of the principle of non-discrimination proclaimed in Article 14 of the Spanish Constitution. On 23 May 1994 the first-instance judge dismissed the application for review holding that, while the Supreme Court had held in a decision that since the promulgation of the Spanish Constitution in 1978 it had been unconstitutional for men to be given precedence over women in the ordinary line of succession to nobiliary titles, that decision appeared to “contradict the philosophy and spirit of the Constitutional Court’s sole judgment on nobiliary titles, which was delivered on 24 May 1982”.
The first applicant appealed against that judgment to the Madrid Audiencia Provincial, which, in an interlocutory decision on 5 February 1996, decided to remit a question to the Constitutional Court concerning the compatibility of the previous provisions of the Constitution establishing the precedence of male heirs in the transmission of nobiliary titles with the principle of equality without discrimination on the ground of sex contained in Article 14 of the Spanish Constitution.
The Constitutional Court declared the issue of constitutionality admissible in a decision of 26 March 1996 and communicated it to the State institutions prescribed in Article 37 § 2 of the Institutional Act on the Constitutional Court. In connection with those proceedings, the President of the National Assembly informed the Constitutional Court that the presiding office of the Assembly had decided not to submit any observations. The President of the Senate indicated that the Senate intended to take part in the proceedings and offered his assistance. On the instructions of his superiors, State Counsel at the Constitutional Court requested that the provisions of historical law according precedence to male heirs be declared unconstitutional since they amounted to discrimination on the ground of sex and were therefore incompatible with the provisions of the Constitution of 1978 and, in particular, Article 14 thereof. State Counsel’s Office made submissions in favour of dismissing the application on the grounds that there had been a procedural defect and that it was manifestly unfounded.
In a decision of 3 July 1997, the Constitutional Court, sitting as a full court, held that the relevant provisions were not contrary to Article 14 of the Constitution. Those provisions were section 1 of the Law of 4 May 1948 and section 13 of the Law of 11 October 1820, which declared the historical law applicable, and, in particular, Law No. 2 of Title XV of Part (Partida) II of 1265, from which the rule that males were to be given precedence over females in the transmission on death of nobiliary titles derived. In its decision, the Constitutional Court declared inter alia:
“... The distinction on the ground of sex established by the aforementioned provision [Law of Title XV of Part II] is now only of purely symbolic value, since it no longer has any substantive content within our legal order. On the contrary, the social and legal values enshrined in our Constitution and which, therefore, are fully applicable today would necessarily come into play if the legal distinction had a substantive content, which it certainly does not here ...
Finally, it is appropriate to add a further consideration:
peerages are now passed on as they stand by succession. In most instances,
these are titles that were attributed
under the Old Regime and were defined in the historical past to which, precisely, they now refer ... Thus, the legal rule governing their transmission on death has, with time, itself become an inherent feature of nobiliary titles acquired by succession. The same applies to the titles that were attributed under the Liberal State – including those attributed recently – whose transmission by succession will continue to be governed by the prescriptions of the royal grant. Accordingly, it would be paradoxical if a peerage could be acquired by succession not, as historical practice dictates, on the basis of the criteria which governed previous transmissions, but of other criteria, since that would amount to ascribing the values and principles enshrined in the Constitution, and which today have a substantive content within our legal order, to something which, because of its symbolic nature, does not have such content.
... If the nobiliary title is not discriminatory and, therefore, not unconstitutional, the precedence [given to the male over the female line] is not either. In other words, since it is accepted that peerages are consistent with the Constitution owing to their purely honorary nature and their purpose, which is to keep alive the historic memory of their grant, a specific element of that institution – the rules governing their transmission on death – cannot be regarded as being exempt from the conditions laid down in the royal charter of grants.
... All of the foregoing leads the Court to hold, finally, that the historic legislation applicable to the lawful succession to peerages and, in particular, Law No. 2 of Title XV of Part [II], which is the source of the rule or criterion that male heirs should take precedence over female heirs of equal line and degree and is applicable by virtue of section 13 of the Law of 11 October 1820 and section 1 of the Law of 4 May 1948, is not contrary to Article 14 of the Spanish Constitution. It is therefore necessary to answer the question whether the provisions are unconstitutional in the negative...”
Three of the Constitutional Court judges delivered a dissenting opinion.
Following that ruling, the Madrid Audiencia Provincial, in a decision of 27 October 1997 served on the first applicant on 5 November 1997, dismissed the appeal and upheld the impugned judgment on the basis of the Constitutional Court’s ruling.
2. Application no. 41503/98
The second applicant is the eldest daughter of Don Joaquín Fernández de Córdoba y Frigola. Following the latter’s death on 6 November 1988, she brought an action against her younger brother before Seville first-instance judge no. 3. She sought an order granting her the possession, use and enjoyment of the nobiliary titles of Marquise of Mintalvo and Marquise of Zugasti, alleging in particular that there had been a violation of the non-discrimination principle set out in Article 14 of the Spanish Constitution. On 17 January 1992 the first-instance judge found in favour of the second applicant and declared that, as the eldest child, she had a prior right to the aforementioned titles. He based his decision on the Supreme Court’s settled case-law that since the entry into force of the Spanish Constitution the precedence given to males, even younger males, over females, was discriminatory such that as from that point, succession to nobiliary titles had to be determined on the basis of primogeniture, not patrilineage.
The second applicant’s brother appealed to Seville Audiencia Provincial, which on 15 July 1993 upheld the impugned judgment. He then appealed on points of law to the Supreme Court which, before giving its decision, decided to await the outcome of the constitutional appeal then pending before the Constitutional Court in the proceedings concerning the first applicant (application no. 41127/98 above). On 13 December 1997 the Supreme Court overturned the judgment of the Audiencia Provincial and dismissed the second applicant’s claim on the basis of the Constitutional Court’s decision of 3 July 1997. The second applicant lodged an amparo appeal relying on Articles 14 and 24 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. That appeal was dismissed by the Constitutional Court on 1 April 1998.
3. Application no. 41717/98
The third applicant is the eldest daughter of Don Lorenzo Roca Aguire Miramón. Following the latter’s death on 26 May 1986, the third applicant brought an action before Malaga first-instance judge no. 7 against her younger brother and a third party for a declaration concerning entitlement to the possession, use and enjoyment of the nobiliary title of the Marquise of Torre Múzquiz. On 20 November, relying on the case-law of the Supreme Court, the first-instance judge found in favour of the third applicant and declared that, as the eldest child, she had a prior right to the peerage concerned. The third applicant’s brother appealed to Malaga Audiencia Provincial, which on 9 February 1994 dismissed his appeal. He then appealed on points of law to the Supreme Court which, before giving its decision, decided to await the outcome of the constitutional appeal which was pending before the Constitutional Court in the proceedings concerning the first applicant (application no. 41127/98 above). On 11 December 1997 the Supreme Court overturned the judgment of the Audiencia Provincial and dismissed the third applicant’s claim on the basis of the Constitutional Court’s decision of 3 July 1997. The third applicant lodged an amparo appeal relying on Articles 14 and 24 of the Constitution.
4. Application no. 45726/99
The fourth applicant is the eldest daughter of
Doña María Angeles Castrillo San Juan, Marquise of Villaverde de San
Isidro. Following the death of the Marquise on 24 August 1998, the fourth
applicant brought an action before Seville first-instance judge no.
9 against her younger brother,
laying claim to her mother’s peerage. On 8 August 1998 the first-instance judge, relying on the principles established by the Constitutional Court’s decision of 3 July 1997, dismissed her action and gave priority to her younger brother’s claim to inherit the peerage. The fourth applicant appealed against that judgment although she was aware that, in the light of the Constitutional Court’s ruling, she has no prospects of success.
B. Relevant domestic law and practice
1. The Constitution of 1978
“Spaniards shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.”
“The right to honour and to private and family life and the right to control use of one’s likeness shall be protected.
2. Case-law of the Supreme Court
Prior to the Constitutional Court’s judgment of 3 July 1997, the Supreme Court had ruled on several occasions that the principle that precedence should be given to male heirs for the transmission of nobiliary titles was discriminatory and contrary to Article 14 of the Spanish Constitution (see, for example, its decisions of 20 June 1987, 28 April 1989, 21 December 1992, 24 January 1995 and 7 May 1996). Following the aforementioned judgment of the Constitutional Court, the Supreme Court abandoned its case-law and held that giving precedence to male heirs over female heirs in the transmission of nobiliary titles did not contravene Article 14 of the Constitution.
Relying on Article 8 of the Convention, the applicants
complained of a violation of their right to respect for their private
and family life. They submitted that nobiliary titles constituted the
heritage of their lineage’s
honour and a blood tie with their ascendants, and that they had been deprived of those attributes solely because they were females, not males. They maintained that, for the purposes of determining rights of succession to peerages, it would be contrary to Article 8 of the Convention to regard male blood ties as having precedence over female blood ties within the same family. That would amount to a veritable interference by the State in the normal development of family life and to discrimination on the ground of sex.
The applicants also alleged a violation of Article 14 taken together with Article 8 of the Convention in that giving precedence to males in the transmission of peerages amounted to discrimination which pursued no legitimate aim and was in any event disproportionate.
Relying on Article 1 of Protocol No. 1 to the Convention, the applicants argued that the fact that they had been deprived of the peerages concerned had infringed their rights to the peaceful enjoyment of their possessions, without any reasonable justification and without compensation. The titles concerned were not merely of honorary value but also had a pecuniary value in the form of, for example, social advantages and increased prestige. Furthermore, assets, especially immovable property, from the family estate, frequently reverted in accordance with custom to the holder of the peerage.
The applicants alleged, lastly, that there had been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention, as they regarded themselves as having been treated less favourably without any reasonable justification.
The first three applications were lodged with the European Commission of Human Rights on 30 April, 2 June and 10 June 1998 respectively. They were registered on 5 May, 5 June and 16 June 1998 respectively.
Pursuant to Article 5 § 2 of Protocol No. 11, they were transferred to the European Court of Human Rights on 1 November 1998, when that instrument came into force.
The fourth application was lodged with the Court on 4 December 1998 and registered on 28 January 1999.
On 2 March 1999 the Court decided to join the four applications and to communicate them to the Government, whom it invited to lodge observations in writing on their admissibility and merits.
The Government lodged their observations on 28 June 1999 and 27 September 1999, after being granted an extension to the time initially allowed. The applicants replied on 6 September 1999 and 8 October 1999.
as to the law
As a preliminary point, the Government raised an objection that applications nos. 41127/98 and 45726/99 were defective in that domestic remedies had not been exhausted, since the applicants concerned had remedies available to them, notably before the Constitutional Court. They added that the four applicants had relied in their domestic actions on Articles 14 (non-discrimination principle) and 24 (right to a fair hearing) of the Spanish Constitution, but not on Article 18, which protected the right to private life and was the pendant to Article 8 of the Convention.
The applicants contested the Government’s argument. They submitted that in the light of the position taken by the Constitutional Court on that subject in its judgment of 3 July 1997, the remedies referred to by the Government were bound to fail.
The Court considers that it is unnecessary to rule on the issue of whether the applicants have exhausted domestic remedies as it finds that the applications are inadmissible for the following reasons.
1. The applicants submitted, firstly, that it was contrary to Article 8 of the Convention to regard male blood ties as having precedence over female blood ties within the same family. They argued that that amounted to a veritable interference by the State in the normal development of family life and to a discrimination based on sex.
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government raised an objection that the complaint
was incompatible ratione materiae with the provisions of the Convention. Identity
with a family was expressed through the surname and not through a nobiliary
title. That was made clear by section 53 of the Law on the Civil Register,
which provided statutory protection for surnames. A person’s surname
names, which were indisputably elements of the right to respect for private and family life, could not be confused with a nobiliary title. As regards the applicant’s argument that a peerage concerned a person’s dignity, the Government, referring to the Universal Declaration of Human Rights – Article 1 of which establishes the principle of equality between human beings, who are born free and equal in dignity and rights – contended that it would be unacceptable for one group of people to be considered more dignified than others as a result of pure biological accident. Peerages could not be accepted within society unless they were seen purely as “nomina honoris” belonging to a “residual institution” of the Old Regime whose recognition by some States was due solely to the fact that they were an historic institution. It would be contrary to the principle of the universality and equality of human rights to regard enjoyment of a nobiliary title as a right to respect for private and family life.
The applicants observed that Rule 135 of the Civil-Register Rules laid down that the titles of nobles and dignitaries would be entered on the civil register. Thus, holders of a nobiliary title could enter that title on the civil register as an additional element identifying and linking the holder with the founder’s lineage for transmission to future generations. Furthermore, while it was true that “the enjoyment of a nobiliary title” did not constitute a human right, once a person’s right to use the title had been recognised, it necessarily concerned Article 8 of the Convention since it constituted an element of identification of the holder of the right with their parents, their lineage and their ancestors, one that was not unconnected with the holder’s family life. Consequently the holder could not be subjected to discrimination on the ground of sex. The applicants submitted that they had been dispossessed of part of their social, cultural, family and physical links with their deceased fathers and ancestors solely on biological grounds, namely the fact they had been born female.
The Court must firstly examine whether the applicants’ complaint comes within the scope of Article 8 of the Convention.
The Court observes, firstly, that it has on a
number of occasions held that disputes relating to individuals’ surnames
and first names come within Article 8 of the Convention. Although that
provision does not contain any explicit provisions on names, as a means
of personal identification and of linking to a family, a person’s
name nonetheless concerns his or her private and family life (see, mutatis mutandis,
the following judgments: Burghartz v. Switzerland of 22 February 1994,
Series A no. 280-B, p. 28, § 24; Stjerna v. Finland of 25 November 1994,
Series A no. 299-B, p. 60, § 37; and Guillot v. France of 24 October
of Judgments and Decisions 1996-V, pp. 1602-03, § 21). In the
instant case, however, the Court notes
that the decision in issue did not concern a dispute over the surnames or first names of the applicants; the case-law cited above is thus inapplicable. The fact that a nobiliary title may be entered on the civil register as an item of additional information facilitating the identification of the person concerned cannot suffice to bring the debate within the scope of Article 8.
The Court concludes that the applicant’s complaint cannot be regarded as coming within the scope of application of Article 8 of the Convention. It follows that, in accordance with Article 35 §§ 3 and 4 of the Convention, this part of the application must be dismissed as being incompatible ratione materiae with the Convention provision relied on.
2. The applicants also alleged a violation of Article 14 taken together with Article 8 of the Convention in that giving precedence to males in the transmission of peerages amounted to discrimination which pursued no legitimate aim and was in any event disproportionate.
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court reiterates that Article 14 concerns only discrimination affecting the rights and freedoms guaranteed by the Convention and its Protocols. It has found that the applicants’ complaints under Article 8 are incompatible with the Convention ratione materiae. Accordingly, the complaints under Article 14 taken together with Article 8 are likewise incompatible ratione materiae with the provisions of the Convention for the purposes of Article 35 § 3 of the Convention.
3. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants argued that the fact that they had been deprived of the peerages concerned had infringed their right to the peaceful enjoyment of their possessions, without any reasonable justification and without compensation. The titles concerned had not been merely of honorary value but also had a pecuniary value, for example, in the form of social advantages and increased prestige. Furthermore, assets from the family estate, especially immovable property, frequently reverted to the holder of the peerage by custom. The applicants alleged, lastly, that there had been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention, as they regarded themselves as having received less favourable treatment without any reasonable justification.
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government contended firstly that nobiliary titles could not be the subject-matter of commercial transactions and added that the applicants had not identified any pecuniary aspect to the peerages. As regards the argument that a peerage constitutes a social advantage, that advantage could not be regarded as a possession within the meaning of the Convention. As regards the commercial use of the titles, the Government noted that the Convention protected concrete, not abstract, rights and none of the applicants had produced any evidence of any contract in which the peerages concerned had been the subject-matter of commercial dealings. As peerages were by definition honorary, they could not come within the scope of application of Article 1 of Protocol No. 1. The Government concluded by submitting that the complaint fell outside the scope of the provision relied on.
The applicants contended that in a country which, like Spain, recognises, regulates, protects and grants nobiliary titles, such titles are indisputably perceived as conferring a social advantage. As for the commercial exploitation of peerages, that was constant practice in Spain. On that point, the applicants referred to the well-known commercial exploitation of peerages in the wines and spirits sector, where they served as trademarks. Ultimately, the commercial, social and honorary use of a nobiliary title was an integral part of the estate of the person enjoying it, such that Article 1 of Protocol No. 1 was indisputably applicable.
The Court reiterates that under its case-law the Article relied upon does no more than enshrine the right of everyone to the peaceful enjoyment of “his” possessions. Consequently, it applies only to a person’s existing possessions and does not guarantee the right to acquire possessions whether on intestacy or through voluntary dispositions (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, § 50; and the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, § 48).
Furthermore, while a legitimate expectation of acquiring property may in certain instances be equated to a “possession” within the meaning of paragraph 1 of Article 1, such an expectation is always dependent on the commitment of a third party; that is the case, for example, with the granting of a commercial operating licence by the authorities (see the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51; and the Tre Traktörer AB v. Sweden judgment of 7 July 1989, Series A no. 159, p. 22, § 55).
The Court considers that a nobiliary title cannot, as such, be regarded as amounting to a “possession” within the meaning of that provision. In general, the same applies to a mere hope of being able to exploit such a title commercially, for example, as a trademark. Since in the instant case the applicants are unable to assert the right to use the nobiliary titles concerned, a fortiori, they cannot claim any legitimate expectation concerning the commercial exploitation of those titles. In these circumstances and in accordance with Article 35 § 3 of the Convention, the Court considers that the applicants’ complaints under Article 1 of Protocol No. 1 taken alone and under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 must be dismissed as being incompatible ratione materiae with those provisions.
For these reasons, the Court, unanimously,
Declares the complaints inadmissible.
de la cierva osorio de moscoso AND OTHERS v. SPAIN DECISION
de la cierva osorio de moscoso AND OTHERS v. SPAIN DECISION