CEDH · CASELAW;CLIN;ENG — 16 novembre 2023

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Spain - 3041/19 Judgment 16.11.2023 [Section V] Article 8 Positive obligations Article 8-1 Respect for private life Failure to act with due diligence to assist a vulnerable minor, a Spanish national born abroad, to obtain birth registration not secured by his available parent, and consequently identity documents: violation Facts – The applicant, a Spanish national, was born to his Spanish mother in August 1985 in Mexico. His birth was not registered with the Civil Registry in the Spanish Consulate and shortly thereafter he was repatriated to Spain with his mother and brother. In September 1997, when the applicant was twelve years old, his mother applied for late registration of his birth. The procedure to obtain the birth certificate was significantly delayed because she had not been able to submit the required documents to register the birth and the authorities insisted on requesting them. As a result, the applicant’s birth was not registered until 2006 when he was twenty-one years old. He was then issued with an ID card.The applicant’s claim for State liability claiming damages caused by the undue delay in issuing his ID card was unsuccessful as were the ensuing judicial administrative proceedings he brought. Relying on Articles   3 and 8 of the Convention and Article   2 of Protocol No.   1, the applicant complained of the psychological and physical suffering and the other consequences, including in the educational and private sphere, of having been undocumented for many years in Spain. Law – Article   8: The Court considered that the applicants’ complaints fell to be examined under Article   8. It recalled that it had already held that respect for private life required that everyone should be able to establish details of their identity as individual human beings. It also observed, inter alia, that, as pointed out in the report by the Office of the United Nations High Commissioner for Human Rights, birth registration involved not only the declaration of the occurrence of the birth to civil registrars and the official recording of the birth by civil registrars, but also the effective issuing of a birth certificate, the document which constituted evidence of the State’s legal recognition of the child. As evidenced in the Court’s case-law, obstacles in obtaining birth registration and lack of access to identity documents resulting from those obstacles could have a serious impact on a person’s sense of identity as an individual human being. In addition, the lack of birth registration and valid identity documents could cause significant problems in a person’s daily life, in particular at the administrative level and educational level. Not being able to establish details of a person’s identity thus interfered with personal autonomy and was directly related to the right to respect for private life as established under Article   8. The importance of obtaining birth registration and, consequently, other valid identity documents had also been underlined by other international bodies. In its General comment No.   13 (2011) on “The right of the child to freedom from all forms of violence” , the UN Committee on the Rights of the Child had clearly indicated that the lack of birth registration could be a form of neglect and of negligent treatment when those responsible for the child’s care had the means, knowledge and access to services to do so. The right to respect for private life under Article   8 should thus be seen as including, in principle, an individual right to have one’s birth registered and as a consequence, where relevant, to have access to other identity documents. Safeguarding the consistency and reliability of civil registries and, more broadly, legal certainty, was an important goal in the general interest and justified, as a matter of principle, strict procedures to register birth, in particular, when it had taken place outside the concerned State’s territory. States enjoyed a wide margin of appreciation concerning the appropriate means of securing the enjoyment of the right to birth registration and access to identity documents flowing from Article   8. That included legal substantive and procedural requirements which had to be fulfilled by the individual seeking to obtain a birth certificate and, on its basis, other identity documents. Once the legal requirements were met, the State was under an obligation to issue the certificate and enable access to other related identity documents in order to preserve the right to respect for private life. At the same time, some adaptability in the standard procedures might be required when the circumstances made that imperative to safeguard important interests protected under Article 8, such as a right to recognised identity. In the present case, under Spanish law, the legal procedure to register a persons’ birth and, subsequently, to obtain identity documents had been clear and foreseeable and in normal circumstances the primary responsibility for undertaking the necessary administrative steps for registration of birth and obtaining identity documents of a child lay on the parents. The substance of the applicant’s complaint was not that the State had acted in a certain way infringing his rights but that it had failed to act where, according to him, it should have. In particular, he complained about the authorities’ alleged failure to observe their positive obligations under Article   8 in a situation where, as a minor, his right to respect for his private life had been in jeopardy. The issue before the Court was not whether the procedure to register the applicant’s birth as such had been adequate, but whether the public authorities had a positive obligation to ensure that a fair balance between the competing interests involved was struck, and in particular, ensure that the applicant’s right to have a recognised identity under Article   8 had not been being violated. The lack of birth registration and consequent lack of access to identity documents could have important repercussions for any person. In addition, the applicant had a record of psychological disorders and psychiatric conditions, and his only available parent had failed to act diligently in securing the registration of his birth. The applicant’s lack of identity documents had had, to at least some extent, an impact on his ability to pursue academic studies and training and had also made him unable to secure stable job contracts, which had affected his ability to organise his private and family life and had contributed to increasing his anxiety and distress. Accordingly, in the present case it had been incumbent on the authorities to act in the best interests of the child whose birth registration had been sought to compensate for the mother’s failings and to prevent the child from being left unregistered and hence, without identity documents. The authorities had thus been under a positive obligation stemming from Article   8 to act with due diligence in order to assist the applicant to obtain his birth certificate and his identity documents, to ensure effective respect for his private life. Although, there was a need to ensure that the information provided had been reliable before proceeding with the registration of the applicant’s birth, the protection of public order in that regard had not been incompatible with assisting a person such as the applicant, in view of the particular vulnerability resulting from health and social factors, so as to protect a particularly important facet of the applicant’s identity. The Court first examined, at what point in time the authorities had become aware of the need to take action in the face of the applicant’s mother’s inactivity in order to protect the applicant’s right to private life. In that connection, the question before it was solely about the moment when the authorities could have reasonably been expected to take active measures to secure the issuance of identity documents for the applicant. Various public authorities had been appraised of his vulnerable situation for most of his life and the civil registration authorities had become aware of his difficulties to have his birth registered and as a consequence, to obtain an ID card at some point in mid-1999, when the procedure had had to be suspended because of the impossibility to summon his mother. However, the positive obligation to assist the applicant in registering his birth and to act with due diligence in that respect, had arisen as from May 2002 when it had become clear that despite the authorities’ repeated requests his mother would not be able to produce documents other than those she had already submitted. Secondly, the Court assessed whether the authorities had taken a sufficiently adequate and timely action in discharging their positive obligation. It found that they had not. In particular, disregarding the particular vulnerability of the applicant, they had merely insisted on his mother’s responsibility to comply with all the legally established criteria, despite the clear indication that she had not acted with full diligence in the related administrative matters in the past, the fact that the applicant, a minor and a vulnerable person, had risked as a consequence to remain without identity documents for a significant further period of time and that no further documents concerning the applicant´s birth in Mexico would be found. Four years had elapsed between the moment when it had become apparent to the public authorities that the applicant’s mother could not facilitate any further documents to register her son’s birth, and its actual registration. There had been no justification for that delay It was not for the Court to examine the question of which concrete measures the public authorities could have put in place to assist the applicant in obtaining identity documents. However, in the instant case, the authorities had failed in their positive obligation to act with due diligence in order to assist the applicant to have his birth registered and, as a consequence, to have his identity documents obtained. Conclusion : violation (unanimously). Article   41: EUR 12,000 in respect of non‑pecuniary damage. (See also Christine Goodwin v.   the United Kingdom [GC], 28957/95, 11   July 2002, Legal Summary ; M. v.   Switzerland , 41199/06, 26   April 2011, Legal Summary ; Mennesson v.   France , 65192/11, 26   June 2014, Legal Summary ; Report “Every Child’s Birth Right: Inequities and trends in birth registration” from UNICEF of December 2013)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .