ECtHR - G.T.B. v Spain

The Court found a violation of Article 8, in a groundbreaking case regarding children’s right to a birth certificate. The applicant was born in Mexico and repatriated to Spain after an earthquake. Despite his mother’s attempts, his birth was not registered upon arrival in Spain as the necessary documentation had been destroyed by the earthquake in Mexico, and he was issued with an ID card only at 21. The Court found that, upon becoming aware of the situation, Spanish authorities were under a positive obligation to assist the applicant in obtaining documentation and the failure to do so resulted in a violation of Article 8 ECHR.

Case status
Decided
Case number
Application no. 3041/19
Citation
G.T.B. v. Spain, application no. 3041/19, 16 November 2023
Date of decision
State
Spain
Court / UN Treaty Body
European Court of Human Rights
Language(s) the decision is available in
English
Applicant's country of birth
Mexico
Applicant's country of residence
Spain
Legal instruments
European Convention on Human Rights (ECHR)
Key aspects
Access to social and economic rights
Birth registration
Respect for private and family life
Relevant Legislative Provisions

Article 8 ECHR

Facts

The applicant is a Spanish national who was born in 1985 in Mexico to a Spanish mother, but his birth was never registered with the Civil Registry in the Spanish Consulate in Mexico. Following an earthquake in Mexico shortly after his birth, his mother applied to be repatriated to Spain with the applicant and his older brother. Upon their arrival, the applicant was also not registered as being born in Mexico.

The applicant and his brother lived for a few years in a children's foster centre under the care of the public authorities. The applicant used illicit substances, started manifesting psychological disorders and several correctional measures were imposed on him.

In 1997, when the applicant was twelve years old, his mother requested the late registration of the birth of her two sons, including the applicant. However, the Civil Registry was not satisfied, as the applicant's mother had not been able to provide the required documentation from the Mexican authorities. In 2000, the applicant’s mother appeared at the Civil Registry again and requested the late registration of the births of the applicant and his brother, highlighting that they had no identification cards and stating that the requested documents from Mexico had been destroyed during the earthquake. Following several additional procedures, including recognition of the mother-sons relationship, in 2006, the births were registered and the applicant, by then 21 years old, was issued with an ID card.

The applicant subsequently launched administrative proceedings for State liability, claiming damages caused by the undue delay in issuing his ID card. After this claim was rejected, he further brought judicial administrative proceedings, an appeal to the Supreme Court, and an appeal to the Constitutional Court.

Legal arguments by the applicant

The applicant complained that the State failed to act and failed to do so with the required expedition. Firstly, he complained that the public authorities had never initiated or pursued the procedure for him to have his birth registered when they had an obligation to do so, so that he could obtain an ID card. However, being aware of his problem concerning the lack of documents, they had done nothing to solve it.

The applicant also argued that the delay in having his birth registered was caused by the constant and unnecessary obstacles created by the public authorities in requesting documents and information known to be unavailable. Nine years had elapsed between his mother’s initiation of the procedure for the late registration of her sons’ birth and the end of the procedure, and she had been asked repeatedly for six years to submit evidentiary documents, even though the authorities were aware that she did not have any. Furthermore, Spanish Law on the Civil Registry, as in force then, placed an obligation on the public prosecutor’s office, in addition to his mother, to ensure the applicant’s registration. Thus, while he was underage, the public authorities should have taken his best interests as the primary consideration, and taken over his mother’s responsibilities for initiating his late birth registration.

The situation had caused the applicant very substantial physical and psychological damage, such as his diagnosis with chronic PTSD, which arose due to his lack of identity documents for many years. Many opportunities for development and vocational integration had also been denied to him due to his irregular situation.

Legal arguments by the opposing party

The Government first stated that as the applicant’s mother had only initiated the procedure when the applicant was twelve years old, it had created enormous difficulties for the processing of the request, due to the lack of evidentiary documents to support her claim.

It then argued that there was no interference by the Spanish authorities with the applicant’s right under Article 8. His identity had never been denied by the public authorities, no objection had been made to issuing him with an ID card once the prerequisites had been fulfilled, and there were no doubts about his name, the fact that he was his mother’s son, and his Spanish nationality when the applicant was repatriated.

Regarding the length of the proceedings for the applicant to obtain his birth certificate and ID card, the Government reasoned that even if there was an interference with the applicant’s rights under Article 8 § 1, it would have been justified by the requirements in Article 8 § 2. It was necessary to comply with requirements to guarantee that any birth registration accurately reflected the true situation, so it was necessary to carefully assess whether the applicant was who his mother was claiming. The Spanish authorities had also followed the Law on the Civil Registry and the applicable Regulations, which had pursued a legitimate aim to be rigorous in the registration of any Spanish nationals, and avoid any potential damage to Spanish nationals caused by misrepresentations of reality. Furthermore, the steps to check whether the applicant’s birth had been registered in Mexico, whether any information on the birth existed, obtain documents concerning the existence of the mother-son relationship, and  any other information through witness statements was necessary in a democratic society. Hence, the delays occurred due to the nature of the procedure and the attitude of the applicant’s mother as the person responsible for requesting the registration, and could not be attributed to the authorities.

Finally, the Government argued that the applicant’s right to an education had never been compromised, and that while he had developed a psychological condition, it could not be attributed to the acts or omissions of the Spanish public authorities. Rather, his drug consumption, his mother’s behaviour and the family’s medical history had a fundamental impact on his situation. There was also no direct causal link between the applicant’s lack of identity and his psychological suffering, and the forensic and medical reports merely indicated that he blamed his problems on a lack of identification.

Decision & Reasoning

After recalling its well-established case law on the concept of private life, which includes the need for everyone to be able to establish details of their identity, the fact that Article 8 also includes positive obligations for States to ensure an effective respect for the right to respect for private and family life, and that children's best interests are of paramount importance, the Court noted that "obstacles in obtaining birth registration and lack of access to identity documents [...] can have a serious impact on a person’s sense of identity [... and] can cause significant problems in a person’s daily life, in particular at the administrative level" . "Not being able to establish details of a person’s identity thus interferes with personal autonomy, and is directly related to the right to respect for private life as established under Article 8". The right to respect for private life "should 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". (paragraph 118) "States enjoy a wide margin of appreciation concerning the appropriate means of securing the enjoyment of the right to birth registration and access to identity documents [...] but as long as the relevant legal requirements are met, the State is under an obligation to issue birth certificates and access to other related identity documents in order to preserve the right to respect for private life." (paragraph 119)

Yet "some adaptability in the standard procedures for the delivery of identity documents may be required when the circumstances make that imperative to safeguard important interests protected under Article 8". The applicant was a minor who was diagnosed with various psychiatric conditions, and his only available parent failed to act diligently in securing the registration of his birth. His lack of identity documents had also impacted his ability to pursue academic studies, training and job contracts. Therefore, "it was incumbent on the authorities to act in the best interests of the child [...] to compensate for his mother’s failings and prevent him from being left unregistered and hence, without identity documents. The authorities were thus 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." While there was a need to ensure that the information provided was reliable before registering the applicant’s birth, "the protection of public order [...] was not incompatible with assisting a person such as the applicant, in view of the particular vulnerabilities resulting from health and social factors, so as to protect an important facet of the applicant's identity" (paragraph 124).

Having established the existence of a positive obligation, the Court turned to identifying the time by which the authorities became aware of the need to act in the face of the applicant’s mother’s inactivity to protect his right to private life. The civil registration authorities became aware of the applicant’s difficulties to have his birth registered and obtain an ID card in mid-1999. From 2002, when it became clear that the applicant’s mother would not be able to produce the documents, "it must have been plainly obvious for the relevant authorities that positive action was needed to ensure that the applicant did not remain without a registered identity" (paragraph 127). 

The Court noted that four years had passed from 2002, when the State's positive obligation arose, and 2006, when the authorities registered the applicant and issued him with identity card. The Court thus found that, while the authorities were aware that no further documents concerning the applicant's birth in Mexico would be found, they only emphasised the mother's responsibility to comply with the legally established requirements and disregarded the applicant's particular vulnerability, and therefore did not take sufficiently adequate and timely action in carrying out their positive obligation to assist the applicant in obtaining his birth certificate and related identity documents (paragraph 129).

Decision documents
Judgment
Outcome

Finding that the authorities failed in their positive obligation to act with due diligence to assist the applicant to have his birth registered and obtain identity documents, the Court found a violation of the applicant’s right to respect for his private life under Article 8.

Caselaw cited
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