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.
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.
4.2 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 complaint
3.1 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.
4.3 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.
4.4 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.
3.2 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.
4.5 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 Tabalosos, 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
State party’s observations
4.1 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
28
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents