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.
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.
4.6 The State party points out to the Committee
that the author is disputing use of the noble title of
Marquis of Tabalosos, 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.
4.9 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.
4.7 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.
Author’s comments
5.1 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 nondiscrimination, 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.
4.8 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.5 According to the State party, only
11 judgements of the Supreme Court - not adopted
5
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.
29
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