León Madrid v. Spain, No. 30306/13, ECtHR (Third Section), 26 October 2021
The Third Section of the European Court of Human Rights dealt with discrimination (article 14 ECHR) in the context of the right to private and family life (article 8 ECHR) in the decision dated 26 October 2021. At the time when the applicant’s daughter was assigned a name, the law in force in Spain provided that the paternal surname automatically preceded the maternal one in case of parents' disagreement, without consideration of specific circumstances. In this specific case, the baby was given her mother’s surname at birth. Two years later, the competent court acknowledged the paternity of the mother’s former partner. The same court also decided that the child would have used her father’s surname followed by her mother’s surname. After the rejection at the domestic level of the request for the inversion of the surnames, the child's mother appealed to the European Court of Human Rights complaining about the violation of the prohibition of gender-based discrimination under article 14 in conjunction with article 8, which is in the context of the right to respect for private and family life.
The Strasbourg Court held that the automatic application that does not allow the competent authority to take into consideration the concrete circumstances of the case constitutes discrimination on the basis of ‘sex’ – quoting the ECHR terminology, or ‘gender’ according to current interpretations of international human rights instruments. No sufficiently objective or reasonable reason was given by the Spanish Government that justified the difference in treatment imposed on the applicant (paragraph 70).
The European Court of Human Rights explained that the fact that the applicant’s minor daughter could change the order of her surnames later in life is not relevant to the evaluation of the lawfulness of the automatic assignment. What matters is, instead, the absolute inability to derogate from the rule in specific cases. In the light of these considerations, the Court found a violation of article 14 in conjunction with article 8 ECHR.
(Comment by Giovanna Gilleri)