DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
1
[TRANSLATION]
...
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,
2
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
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
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
3
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 nondiscrimination 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.
4
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
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,
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
5
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
Article 14
“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.”
Article 18
“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.
COMPLAINTS
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
6
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
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.
PROCEDURE
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.
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
7
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 and first
8
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
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 1996, Reports of Judgments and Decisions
1996-V, pp. 1602-03, § 21). In the instant case, however, the Court notes
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
9
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:
10
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
“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,
DE LA CIERVA OSORIO DE MOSCOSO AND OTHERS v. SPAIN DECISION
11
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.