FIRST SECTION. CASE OF CUNHA MARTINS DA SILVA COUTO v. PORTUGAL. (Application no /12) JUDGMENT STRASBOURG. 30 April 2015

Transcription

1 FIRST SECTION CASE OF CUNHA MARTINS DA SILVA COUTO v. PORTUGAL (Application no /12) JUDGMENT STRASBOURG 30 April 2015 This judgment is final but it may be subject to editorial revision.

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3 CUNHA MARTINS DA SILVA COUTO v. PORTUGAL JUDGMENT 1 In the case of Cunha Martins Da Silva Couto v. Portugal, The European Court of Human Rights (First Section), sitting as a Committee composed of: Mirjana Lazarova Trajkovska, President, Paulo Pinto de Albuquerque, Ksenija Turković, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 7 April 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no /12) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ) by a Portuguese national, Mr José Luís Cunha Martins da Silva Couto ( the applicant ), on 27 September The Portuguese Government ( the Government ) were represented by their Agent, Mrs M. F. da Graça Carvalho, Deputy Attorney-General. 3. On 4 March 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible. THE FACTS THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1961 and lives in Porto. 5. On an unknown date, the applicant and I. dissolved their marriage and the latter stayed with the children s custody. 6. On 28 November 2008 the Porto Family Court adopted a decision establishing the applicant s contact rigths. 7. On 27 May 2009 I. sent a letter to the applicant informing him that she had suspended his contact rights. 8. On 5 June 2009 the applicant lodged an application with the Porto Family Court informing about I. s decision to not comply with the court s decision of 28 November 2008 and asking the court to schedule a hearing with him and his former wife (audiência de pais) so he could continue to have access to his children (processo de incumprimento das responsabilidades parentais).

4 2 CUNHA MARTINS DA SILVA COUTO v. PORTUGAL JUDGMENT 9. In June 2009 the Porto Family Court held a hearing with the parents and subsequently requested a social report about the children to the Social Security Institute (Instituto da Segurança Social). 10. On 14 July 2009 the Porto Family Court adopted a decision suspending the applicant s right to visit his children for a period of three months on the grounds of the social report that had been submitted on 13 July The Family Court also requested a psychological assessment of the children. 11. From September 2009 to January 2012 the applicant lodged several requests with the Family Court seeking the reestablishment of his right to visit his children and asking permission to spend special dates (birthdays, Christmas, Easter) with them. 12. On 4 February 2010 the Social Security Institute submitted the children s psychological report to the Family Court. On 18 February 2010 the report was challenged by the applicant who complained that he had not been heard. On 5 March 2010 the Family Court ordered the psychological report to be completed after the applicant had been heard. 13. On 22 March and 27 August 2010 two new reports were submitted to the Family Court and a mediation hearing with the parents was scheduled for November The hearing did not take place due to I. s refusal to participate in the mediation. The proceedings continued and, on an unknown date, the Family Court adopted a decision stating that the applicant s visits would continue to take place in an open place and in dates to be decided by the court. 14. On 30 March 2011 a hearing with the parents took place and both agreed that the applicant could continue to visit his children in the Family Court s premises. 15. On 25 November 2011 the Family Court requested another social report on the children s situation and their family. 16. On 2 February 2012 another social report was submitted to the Family Court and on 28 February the applicant was heard. 17. A hearing with the parents was scheduled for 27 March 2012 and later postponed to 2 May A few days after this hearing, the children were heard by the Family Court. 18. On 10 May 2012 a new hearing took place in which the applicant and I. reached a settlement concerning the rights of the former to visit the children. On the same day, the Family Court endorsed the agreement.

5 CUNHA MARTINS DA SILVA COUTO v. PORTUGAL JUDGMENT 3 THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 19. The applicant complained that the length of the proceedings had been incompatible with the reasonable time requirement, laid down in Article 6 1 of the Convention, which reads as follows: In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by a... tribunal The Government contested that argument. 21. The period to be taken into consideration began on 5 June 2009 and ended on 10 May It thus lasted two years and eleven months for one level of jurisdiction. A. Admissibility 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 23. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no /96, 43, ECHR 2000-VII). 24. The Court further reiterates that child custody cases must be dealt with speedily (see Hokkanen v. Finland, 23 September 1994, 72, Series A no. 299-A; Niederböster v. Germany, no /98, 39, ECHR 2003-IV), all the more so where the passage of time may have irreversible consequences for the parent-child relationship (see Tsikakis v. Germany, no. 1521/06, 64 and 68, 10 February 2011) likewise, cases concerning parental responsibility and contact rights call for particular expedition (see Paulsen-Medalen and Svensson v. Sweden, 19 February 1998, 39, Reports of Judgments and Decisions 1998-I ; Laino v. Italy [GC], no /96, 22, ECHR 1999-I). 25. The Court firstly notes that the proceedings lasted two years and eleven months for one level of jurisdiction.

6 4 CUNHA MARTINS DA SILVA COUTO v. PORTUGAL JUDGMENT 26. The Court does not consider that complexity could explain the length of the proceedings. It also notes that the applicant took no steps that could have significantly contributed to the delay of the proceedings. 27. As to the conduct of the authorities dealing with the case, the Court considers that, having regard to what was at stake for the applicant (his contact rights with regard to his children) the domestic courts failed to act with the special diligence required by Article 6 of the Convention in such cases. In particular, the Court observes that the Porto Family Court not always showed the diligence required when dealing with cases concerning parental responsibility and contact rights: for example, the Social Security Institute took eight months to submit a report requested by the Family Court (see, paragraphs 10 and 12, above). Secondly, the Court also notes that the Family Court allowed the proceedings to continue for almost three years by requesting several social reports and thus stretching the time needed for a decision. 28. In the light of the above, the Court observes that the Government did not supply any justification for the duration of the proceedings, which seems manifestly excessive since it aimed at establishing the applicant s contact rights with regard to his children. 29. In these circumstances, and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the reasonable time requirement. 30. There has accordingly been a breach of Article 6 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 31. Article 41 of the Convention provides: If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. A. Damage 32. The applicant claimed 3,500 euros (EUR) in respect of nonpecuniary damage. 33. The Government contested the claim. 34. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 1,950 under that head.

7 CUNHA MARTINS DA SILVA COUTO v. PORTUGAL JUDGMENT 5 B. Costs and expenses 35. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the Court. 36. The Government contested the claim. 37. Regard being had to the documents in its possession and to its caselaw, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head. C. Default interest 38. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 1,950 (one thousand nine hundred fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant s claim for just satisfaction. Done in English, and notified in writing on 30 April 2015, pursuant to Rule 77 2 and 3 of the Rules of Court. André Wampach Deputy Registrar Mirjana Lazarova Trajkovska President