Communication No. 1019/2001
Submitted by: Mercedes Carrión Barcáiztegui (represented by Carlos Texidor Nachón
and José Luis Mazón Costa)
Alleged victim: The authors
State party: Spain
Declared inadmissible: 30 March 2004 (eightieth session)
Subject matter: Alleged discrimination in succession
to hereditary title of nobility
was the younger sister of Concepción Barcáiztegui y
Uhagón and the older sister of Íñigo Barcáiztegui
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.
Procedural Issues: Examination of "same matter" Exhaustion of domestic remedies Incompatibility ratione materiae
Substantive Issues: Discrimination on ground of sex
- Equality before the law
2.3 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.
Articles of the Covenant: 3; 17 and 26
Article of the Optional Protocol: 3
1.
The author of the communication, dated
8 March 2001, is Mercedes Carrión Barcáiztegui, 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.
2.4 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 1997,3 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.
The facts as submitted by the author
2.1 Ms. María de la Concepción Barcáiztegui
Uhagón1 - 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 Íñigo Barcáiztegui Uhagón should
succeed her as holder of the title. She died
on 4 April 1993 without issue.
2.5 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.4 However, on 10 December 1998,
she appealed before the National High Court. In her
communication she states that despite the manifest
2.2 In February 1994 the author initiated a legal
action against her uncle, Íñigo Barcáiztegui Uhagón,
and her cousin, Javier Barcáiztegui Rezola, claiming
the noble title of Marquis of Tabalosos.2 The author
claimed the greater right, since she occupied by
representation the place of her mother, Mercedes
Barcáiztegui - deceased on 7 September 1990 - who
3
This judgement prompted the Supreme Court to
modify its jurisprudence, which had departed from
historical precedent with regard to equality of men and
women.
1
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 Íñigo
Barcáiztegui Uhagón’s elder sister. According to the
author, Íñigo conceded the title to his son, Javier
Barcáiztegui Rezola.
4
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”.
2
The author relates that she asked her cousin why her
uncle had conceded the title to him.
27
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