ALI ABA KADR AND ROUHI v. SPAIN

FIFTH SECTION

DECISION

Applications nos. 41788/22 and 51028/22
Khadidjetou ALI ABA BAKR against Spain
and Najat ROUHI against Spain

The European Court of Human Rights (Fifth Section), sitting on 10 October 2024 as a Committee composed of:

 Lado Chanturia, President,
 Mykola Gnatovskyy,
 Úna Ní Raifeartaigh, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the two applicants listed in the appended table (“the applicants”), on the dates indicated therein;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The applications concern a refusal to recognise the applicants, who were born in Western Sahara in 1973 and 1974, respectively, as having Spanish nationality. They argued that this refusal had been discriminatory and that the domestic proceedings had been unfair.

2.  The first applicant was born in Western Sahara in 1973.

3.  On 17 July 2014 the Directorate General of Registries and Notaries rejected her request to be granted Spanish nationality by birth right (de origen).

4.  On 2 December 2016 the Palma de Mallorca First-Instance Court dismissed the applicant’s judicial claim, stating that, according to the Supreme Court’s case-law, persons from Western Sahara whose parents were also from Western Sahara were not considered Spanish citizens. It further stated that it could not declare the applicant’s Spanish nationality based on Article 17 § 1 (c) of the Civil Code (granting Spanish nationality to persons born in Spain who would otherwise be stateless) since the applicant had not relied on this basis.

5.  On 26 December 2017 the Palma de Mallorca Audiencia Provincial upheld the applicant’s appeal. It stated that there were no obstacles for the courts to apply a different legal provision while respecting the applicant’s request (to have her Spanish nationality declared as of birth). Concluding that the applicant had been born in Spain and had no other nationality, it declared her Spanish nationality by birth right, in application of Article 17 § 1 (c) of the Civil Code.

6.  On 29 May 2020 the Supreme Court upheld the cassation appeal lodged by the Directorate General of Registries and Notaries and reversed the judgment of the Audiencia Provincial. It stated that the scope of the case was to determine whether the applicant could be granted Spanish nationality under Article 17 § 1 (c) of the Civil Code, that is, for being “born in Spain of alien parents if both of them are stateless or if the legislation [of their country of nationality] were not to grant nationality to the child”. It affirmed that while there were arguments and case-law both in favour and against the consideration of Western Sahara as part of Spain at the material time, the Preamble to Law no. 40/1975, on the decolonisation of the Sahara stated that “Sahara was never a part of the national territory”. It concluded that “Western Sahara [could] not be considered as Spain for the purposes of [the recognition of] Spanish nationality by birth right under Article 17 § 1 (c) of the Civil Code” and that “[i]n other words, persons born in the territory of a Spanish colony [were] not considered to have been born in Spain”.

7.  The Constitutional Court declared the applicant’s amparo appeal inadmissible.

8.  The second applicant was born in Western Sahara in 1974.

9.  On 18 March 2016 the Directorate General of Registries and Notaries rejected her request to be granted Spanish nationality by birth right (de origen).

10.  On 14 March 2018 the Madrid First-Instance Court no. 74 dismissed the applicant’s judicial claim, stating that Article 17 § 1 (c) of the Civil Code was not applicable in her case because she had Moroccan nationality, that she could not rely on Article 17 § 1 (a) because her parents were not Spanish, and that she did not meet the requirements of Article 18 of the Civil Code (bona fide use of Spanish nationality under some conditions).

11.  On 20 September 2018 the Madrid Audiencia Provincial upheld the applicant’s appeal. After referring to the Supreme Court’s case-law, it concluded that persons born in Western Sahara when it was under Spanish authority were to be considered to have been born in Spanish territory. The applicant was thus to be considered a Spanish citizen on account of having a Spanish father, since the rules in force at the date of her father’s birth granted Spanish nationality to persons born in Spanish territory.

12.  On 15 November 2021 the Supreme Court upheld the cassation appeal lodged by the Directorate General of Registries and Notaries and reversed the judgment of the Audiencia Provincial. It summarily referred to the judgment of 29 May 2020 (see paragraph 6 above) and reiterated that Western Sahara was not considered Spain for the purpose of nationality. It concluded that the applicant could not be granted Spanish nationality, under neither Article 17 § 1 (c) of the Civil Code, nor Articles 17 § 1 and 17 § 2 of the same law (as in force at the relevant time, granting Spanish nationality to persons whose father or, under some conditions, whose mother, was Spanish), since her parents were not born in Spain.

13.  The Constitutional Court declared the applicant’s amparo appeal inadmissible.

14.  The relevant provisions of the Civil Code regulating the access to Spanish nationality read as follows:

Article 17

1.  The following persons are Spanish nationals by birth right:

a) Those born of a Spanish father or mother;

...

c) Those born in Spain of alien parents if both of them are stateless or if the legislation [of their country of nationality] were not to grant nationality to the child...

Article 18

The bona fide continued use of Spanish nationality for ten years based on a title recorded at the Civil Registry shall constitute grounds for the consolidation of Spanish nationality, even if the title that originated it is annulled.

THE COURT’S ASSESSMENT

15.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

16.  Relying on Article 14 of the Convention, read in conjunction with Article 8 of the Convention and on Article 1 of Protocol No. 12, the applicants alleged that the refusal of Spanish nationality was discriminatory. They further alleged a violation of their right to a fair trial under Article 6 of the Convention, based on the lack of reasoning of the Supreme Court judgments. The first applicant further complained about the length of the proceedings in the Constitutional Court.

17.  The Court notes that the applicants only argued alleged discrimination in the enjoyment of their right to nationality, but not that their right to respect for their private life had been breached by the refusal to grant them Spanish nationality. They did not submit any arguments either regarding the possible impact of not having obtained Spanish nationality on their private or family life. The Court therefore considers that the present case does not require examination under Article 8 of the Convention taken alone (compare Zeggai v. France, no. 12456/19, §§ 25-26, 13 October 2022).

18.  As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)).

19.  The Court has held that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Ramadan v. Malta, no. 76136/12, § 84, 21 June 2016, and Usmanov v. Russia, no. 43936/18, § 53, 22 December 2020).

20.  The Court thus considers that the facts of the present cases fall within the ambit of Article 8 of the Convention and, consequently, that Article 14 is applicable (see, mutatis mutandis, Zeggai, cited above, §§ 27-28).

21.  The Court is further satisfied that the complaint concerns a “right set forth by law”, namely the right to Spanish nationality, as regulated in the Civil Code, which renders Article 1 of Protocol No. 12 applicable.

22.  Article 1 of Protocol No. 12 extends the scope of protection of Article 14 to “any right set forth by law”, introducing a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009). Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (ibid., § 55, with further references). Therefore, in the circumstances of the present cases, the Court will conduct a joint analysis.

23.  The applicants invoked two groups as comparators and three different discriminatory situations:

24.  The applicants argued that, unlike them, many persons born in Western Sahara had indeed been granted Spanish nationality, referring in particular to their husbands who were allegedly in the same circumstances as them.

25.  The Court reiterates in this regard that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Molla Sali v. Greece [GC], no. 20452/14, § 133-34, 19 December 2018, and the references therein).

26.  In the present case, despite alleging the existence of contradictory decisions of domestic administrative and judicial authorities, the applicants have not provided any arguments to sustain that the alleged difference in treatment was based on an identifiable characteristic, or “status”, capable of amounting to discrimination within the meaning of Article 14 or of Article 1 of Protocol No. 12.

27.  The applicants alleged a situation of discrimination between them and persons born in Western Sahara whose parents were born in mainland Spain and whose right to Spanish nationality was allegedly not disputed. They argued that they had been discriminated on account of their place of birth and of their Sahrawi origin, which they further connected to a discrimination based on race or ethnic origin.

28.  The Court notes at the outset that the alleged grounds of discrimination, namely the applicants’ place of birth and the origin of their families, are closely related to the possible grounds on which Spanish nationality may be granted, either by ius soli or by ius sanguinis. The Court observes in this regard that the Supreme Court’s rulings, by excluding Western Sahara from consideration as Spanish territory, resulted in the applicants not being entitled to Spanish nationality on either of those grounds.

29.  The Court further notes that some of the applicants’ factual allegations allude to an arbitrary deprivation of their and/or their parents’ nationality. Namely, they referred to the specificities of the links between the Sahrawi population and Spain and to the existence of contradictory administrative and judicial decisions about the consideration of Sahrawi people as Spanish nationals. The first applicant further alleged that her parents had a Spanish identification document (DNI), that they had a family document (libro de familia) and that her birth had been registered in the Civil Registry (Registro Civil). However, they did not submit any specific complaints in this regard (see paragraph 17).

30.  Thus, the Court’s analysis should be focused on whether the Spanish courts’ ruling that Western Sahara was not Spanish territory for nationality purposes produced a discriminatory situation for the applicants.

(a)      Alleged differential treatment based on the applicants’ place of birth

31.  Even though the applicants did not refer to any specific persons as a comparator, nor did they clarify on which grounds those persons were allegedly granted Spanish nationality, it appears that persons born in Western Sahara to parents born in mainland Spain, provided that the latter were Spanish nationals, would have had access to Spanish nationality by ius sanguinis. Therefore, the Court observes no differential treatment between the applicants and the group used as comparator based on the place of birth, which would be the same in both cases.

(b)      Alleged differential treatment based on the applicants’ Sahrawi origin

32.  The applicants alleged that, had their families come from mainland Spain (or Spanish islands), they would have had access to Spanish nationality, regardless of having been born in Western Sahara.

33.  In order to sustain the alleged discrimination, the applicants argued in general terms that the Supreme Court’s reasoning was arbitrary, but without specifying any additional elements to show that there had been a different treatment between persons placed in a relevantly similar situation, based on an identifiable characteristic or “status”.

34.  The Court notes that the Supreme Court concluded that, since Western Sahara was not to be considered as Spain, the applicants’ parents could not have acquired Spanish nationality by ius soli (see paragraphs 11 and 12) and, consequently, could not pass on their Spanish nationality to their children by ius sanguinis.

35.  The Court considers that the impact of the Supreme Court’s decisions on the applicants’ right to Spanish nationality and/or that of their parents ‑ and thus on their possibility of passing it on to the applicants – was strictly linked to the consideration of the territory of Western Sahara, which is regarded to date as a Non-Self-Governing Territory by the United Nations[1] and which involves complex historical, political, factual and legal issues. It seems evident that the exclusion of Western Sahara from Spanish territory for nationality purposes mostly affected people of Sahrawi origin. However, the applicants have not advanced any specific arguments to show that there were additional reasons involved, namely based on any prohibited grounds of discrimination, such as the ethnic origin of the applicants or their families.

36.  In this regard, the place of birth, particularly the fact that a person was born in the territory of a particular State, is one of the main grounds for acquiring the nationality of the State concerned (ius soli). In the particular circumstances of the present case, the Court is unable to discern any appearance of unjustified difference in treatment in so far as a person born outside the territory of a particular State is not recognised as a national of that State under the ius soli. In the same vein, there is no indication of any discrimination in the fact that a person who is not considered a national of a particular country cannot pass on that country’s nationality to his or her children.

37.  In sum, the Court acknowledges that there have been inconsistencies at domestic level, as to the recognition of Spanish nationality for persons of Sahrawi origin, in the practice of both the administrative and the judicial authorities. It further notes that there were examples of domestic case-law in which Western Sahara had been considered as Spanish territory for the application of civil law provisions governing nationality. The Court accepts that those divergences, together with the specificities of the links between the Sahrawi people and Spain, must have resulted in a situation of uncertainty for the applicants regarding their status as Spanish nationals.

38.  Nevertheless, and irrespective of other historical, political and legal considerations, the Court fails to see how a denial of nationality based on the place of birth or on the family’s origins can, per se and without any additional elements, be considered discriminatory, as those are precisely the elements on which access to nationality is based. The Court, without prejudging other aspects, concludes that in the present cases the applicants have failed to show an unjustified differential treatment of persons in relevantly similar situations.

39.  It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention.

40.  The applicants alleged a violation of their right to a fair hearing, arguing that the reasoning of the Supreme Court had been arbitrary. The first applicant further alleged that the proceedings before the Constitutional Court had been excessively long. They relied on Article 6 § 1 of the Convention.

41.  The Court reiterates that Article 6 § 1 of the Convention does not apply to proceedings regulating a person’s citizenship, as a right to citizenship is not a civil right, given that it is not of a pecuniary or otherwise of a private character (see Sergey Smirnov v. Russia (dec.), no. 14085/04, 6 July 2006, and Borisov v. Lithuania, no. 9958/04, § 116, 14 June 2011).

42.  It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 7 November 2024.

 Martina Keller Lado Chanturia
 Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

1.

41788/22

Ali Aba Kadr v. Spain

25/08/2022

Khadidjetou ALI ABA BAKR
1973
Ibiza
Stateless

2.

51028/22

Rouhi v. Spain

26/10/2022

Najat ROUHI
1974
Tudela
Moroccan

Fatma El Galia MOHAMED FADEL MOJTAR

[1] https://www.un.org/dppa/decolonization/en/nsgt/western-sahara (last accessed July 2024).