Published on 6 April 2021

THIRD SECTION

Application no. 3041/19 Gilberto TORRES BARRERA against Spain lodged on 21 December 2018 communicated on 17 March 2021

STATEMENT OF FACTS

1 . The applicant, Mr Gilberto Torres Barrera, is a Spanish national, who was born in 1985 and lives in Santa Cruz de Tenerife. He is represented before the Court by Mr J.C. Vazquez Fernandez, a lawyer practising in Madrid.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant was born on 15 August 1985 in Mexico. Shortly after the applicant was born, an earthquake caused significant damage in the country. The applicant ’ s mother is a Spanish national born in Venezuela. In October 1985, the applicant, his older brother and their mother were repatriated to Spain. The applicant and his brother were featured in their mother ’ s repatriation application, but no other proof of their identity was saved from the earthquake or otherwise existed.

4 . Ever since their repatriation, the applicant and his family resided in Tenerife, Spain. Twelve years after their arrival on 3 September 1997, the applicant was registered as a resident in San Cristóbal de la Laguna, Tenerife. On the same date, the applicant ’ s mother made a request before the Register Office ( Registro Civil ) of La Laguna to have her children ’ s birth registered. The public prosecutor was favourable to the registration.

5 . On 16 December 1998, the Central Register Office ( Registro Civil Central ), in charge of registering the births of Spanish nationals born abroad, requested the applicant ’ s mother to present her own birth certificate, as well as those of her children. She presented her birth certificate and her passport, but claimed that her children were birthed at home in Mexico and didn ’ t have any official documents to prove their birth there. On 31 March 1999, the Central Register Office ordered the Register Office of La Laguna to summon the applicant ’ s mother and her children, for them to be heard by the forensic doctor and for the Public Prosecutor to issue a report concerning their registration. However, she could not be found at the address provided, and the request was suspended for years.

6 . The registration of the births in the Registrar Office was a necessary requisite for the applicant to obtain an ID ( Documento Nacional de Identidad ).

7 . From March 1995 to June 1997 the applicant attended primary school and successfully obtained the first and second cycles of his primary education. However, the official diploma could not be issued for he didn ’ t have an ID. Years later, he could not enrol when he intended to pursue a plumbing and maintenance service course in 1998-1999 due to his lack of ID, and the same happened when he enrolled in an upholstery course in 2000-2001.

8 . The applicant also worked in the construction sector for a short period in 2000, after which he could not be officially hired because of his lack of identity documents.

9 . At a non-specified date in 2001, the applicant was criminally convicted (still as a minor) of an offence, and sentenced to probation. He attended a day centre for minor offenders, but he could not enrol in a labour reinsertion program because his lack of ID. In April 2002 he was again criminally sentenced to a closed-regime juvenile facility. While in detention he could complete several courses (marquetry, food handling or dog training). According to a psychological report from the centre, the day centre he attended during his previous probation period had repeatedly offered to help the applicant ’ s mother to obtain his ID, but she refused and did not show interest on the matter.

10 . From 2 June to 2 December 2003 he was again in a closed-regime juvenile facility. During this period, he turned 18 years old. From May 2004 to April 2006 he was subject to probation as a minor offender, although he was already an adult when he served the sentences. In 2004 and 2005 he also completed several training courses.

11 . During the time he was detained, several reports reflected that his psychologists encouraged the applicant to focus on obtaining his ID by himself and to get help from the Administration, in light of his mother ’ s inaction in this regard.

12 . The applicant suffers from psychological and psychiatric pathologies from the age of 11. In 2002 he was diagnosed of various conditions, for one of which there were family precedents. The applicant also started using drugs and toxic substances at an early age. According to several medical reports, the anxiety caused by the fact of not having an ID and not being able to enrol in different trainings or be hired to work caused him additional conduct disorders and aggravated his mental condition.

13 . In January 2014, the applicant was granted a disability pension due to his severe psychiatric and psychological pathologies.

14 . On 16 May 2002 the applicant ’ s mother filed a new request to register her sons ’ birth in the Registrar Office. On 30 September 2002, the Judge in charge of the Registrar Office summoned her again to facilitate the necessary documentation for the registration. On 23 October 2002, and again on 26 November 2002, she claimed that the children ’ s birth certificates had disappeared as a result of the earthquake in 1985.

15 . During the next months, the Ministry of Foreign Affairs made several efforts to gather further information from the Mexican Registrar Offices, but they were unsuccessful because of the lack of detail provided by the applicant ’ s mother. The Ministry also had to verify the mother ’ s birth certificate in Venezuela.

16 . On 11 January 2005, the applicant and his brother appeared before the Judge in charge of the Registrar Office to present all the available documents they had (social security record, their mother ’ s documents, etc.) but reiterating that they did not have further proof of their own birth. During 2005, the applicant appeared several times before the Public Prosecutor to complain about the delay in their request for birth registration, and the prosecutor filed judicial requests to the Judge in charge of the Central Registrar Office to inquire about the delays.

17 . In May 2005, the applicant and his brother appeared before the Court to consent to their registration, since they were adults by then. They were examined by a forensic doctor to establish their estimate age which was consistent with their statements. Their mother and younger sister also appeared to recognise them as their children and siblings, respectively. Given the impossibility of obtaining further documents, on 8 March 2006, the Public Prosecutor issued a report in favour of the birth registration of the applicant and his brother. On 13 March 2006, the Judge in charge of the Central Registrar Office issued a decision approving to register the applicant ’ s birth. The birth was effectively registered on 5 April 2006.

18 . Shortly after, on 24 May 2006, the applicant ’ s first ID Card was issued. He was 20 years old.

19 . In 2012, the applicant filed a request before the Registrar Officer for a copy of the complete file of his case. The file was received by the applicant on 8 April 2013.

20 . On 22 December 2014 and 20 April 2015, the applicant filed requests for damages with the Ministry of Internal Affairs ( Ministerio del Interior ), claiming that the State pay him compensation for the damages he had suffered as a consequence of his lack of birth registration and ID. In particular, he claimed that the delay in obtaining his ID prevented him from accessing the job market, obtaining a driving license, or completing his education, which had caused him the severe mental conditions he suffered. He initially quantified the damages in EUR 825,546,70 and later increased the amount to EUR 930,081.36.

21 . On 5 October 2015 the applicant also filed a similar motion to request the same amount of damages to the Ministry of Justice ( Ministerio de Justicia ) on identical grounds.

22 . Both the Ministry of Internal Affairs and the Ministry of Justice concluded that the actions of the respective State authorities, which consisted of merely requesting the relevant documents and the registration of birth, once it was proven that there were no further documents and other evidence was presented, could not prompt liability by theState. The State Council also reported that the delays in issuing the ID were the consequence of the difficulties to register the applicant ’ s birth first, due to the lack of any supporting documents. It recognized that the proceedings were lengthy, but recalled that the inaction of the applicant ’ s mother had been an obstacle and concluded that a direct causality could not be established between the State actions and the psychiatric pathologies suffered by the applicant.

23 . In view of the above, on 20 July 2016 the Ministry of the Presidency ( Ministerio de la Presidencia ) denied the patrimonial liability of the State claimed by the applicant, who filed an appeal ( recurso contencioso-administrativo ) requesting damages amounting to EUR 1,288,088.41.

24 . By a judgment of 22 May 2017, the Audiencia Nacional denied the State liability. The Audiencia Nacional found that the action to claim administrative liability was not prescribed even if the ID was issued in 2006, because the illness had not been fully diagnosed until later. It expressly stated that it was making an interpretation favourable to the applicant. The judgment stressed that the delays in the issuing of the ID card were not solely imputable to the State authorities ’ actions. Although such proceedings took long years, the applicant ’ s mother had not requested her sons ’ birth registrations for 12 years after their arrival in Spain, and she could not be found in her address. It took another 3 years to reinstate proceedings, where she could not provide the relevant documents requested. This resulted in additional efforts from the Administration to register the applicant ’ s birth, and therefore, on delays on the issuing of his ID card.

25 . The judgment of the Audiencia Nacional denied the existence of a direct causality between the ID procedure and the psychiatric pathologies of the applicant, who also had abused drugs from an early age and had family precedents of mental illness. It concluded that according to well-established case law, the State could not be held liable if the alleged harm suffered was not directly and exclusively caused by the acts of the State authorities.

26 . Despite the consequences that the lack of identity documents had for the applicant, the Audiencia Nacional noted that he did not take any action intended to register his birth and or to submit any evidence as to his filiation and identity. It also noted that the amounts requested by the applicant did not have any objective support.

27 . On 26 June 2017, the applicant filed a cassation appeal ( recurso de casación ) before the Supreme Court. He claimed that his right to fair proceedings had been violated, due to the wrong assessment of the evidence which he presented to support the direct link between the State authorities ’ acts and his psychiatric pathologies. On 10 November 2017, the Supreme Court declared the appeal inadmissible.

28 . On 14 January 2018, the applicant filed an amparo appeal before the Constitutional Court. He complained of a violation of his right to education without discrimination. He also complained of a violation of his right to a physical and moral integrity, on the grounds that his mental disorder related to his lack of ID was a consequence of the State ’ s actions. He complained as well of a violation of his right to effective legal protection by the Audiencia Provincial and because of the poor assessment of the medical reports he had submitted.

29 . By a decision of 21 June 2018, the Constitutional Court declared the amparo inadmissible due to the lack of constitutional relevance.

The Constitution

Article 14

“ Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance. ”

Article 15

“Everyone has the right to life and to physical and moral integrity, and may under no circumstances be subjected to torture or to inhuman or degrading punishment or treatment. The death penalty is hereby abolished, except as provided by military criminal law in times of war.”

Article 24

“1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended.

2. Likewise, all persons have the right [...] to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence;

...”

Article 27

“Everyone has the right to education.”

COMPLAINTS

30 . The applicant complains of suffering from severe mental condition as a consequence of the problems he had experienced in accessing the job market, obtaining a driving license, or completing his education, due to the fact that he had no ID. He invokes Article 3 and/ or 8 of the Convention.

31 . The applicant complains of a violation of his right to education as provided by Article 2 of Protocol no. 1 to the Convention on the grounds that his access to education was restricted because he lacked an ID.

QUESTIONS TO THE PARTIES

1. In view of the domestic courts ’ findings about the applicant ’ s medical condition and the State liability, has there been a breach of the applicant ’ s rights under Articles 3 and/or 8 of the Convention , based on the fact that he had no ID card for over twenty years?

2. Has the lack of an ID card for over twenty years prevented the applicant from enjoying his right to education, guaranteed by Article 2 of Protocol No. 1 ?

3. The respondent Government is requested to submit information and evidence pertaining to the custody or parental authority over the applicant between 2001 and 2003, and any other period during which the applicant was under the State custody (such as when he lived in the “ casa cuna ”), if be. In addition, the Government is asked to clarify whether under the Spanish legislation the State had a positive obligation to assist the applicant to obtain an ID while he was under the State custody, regardless or in spite of his mother ’ s cooperation or involvement. Was there any other procedure that the State authorities (in particular, the Register Offices) could have initiated to certify the applicant ’ s birth and assist him in obtaining an ID card?

The respondent Government are further requested to submit information on whether the applicant had a NIE card ( Número de Identificación Extranjero ) or whether he could obtain one, had he requested it, while he had no birth certificate.