Resolution CM/ResDH(2007)88
concerning the judgment of the European Court of Human Rights
of 26 June 2003 (final on 26 September 2003)
in the case of Maire against Portugal, pertaining to international child abduction
and the right to respect for bereft parent's family life
(Adopted by the Committee of Ministers on 20 June 2007,
at the 997th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),
Having regard to the judgment of the European Court of Human Rights in the Maire case delivered on 26 June 2003 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;
Recalling that the case originated in an application (No. 48206/99) against Portugal, lodged with the European Commission of Human Rights on 15 October 1998 under former Article 25 of the Convention by Mr Paul Maire, a French national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints that the Portuguese authorities had failed to enforce judicial decisions rendered from 1996 until 1999, relating to the exercise by the applicant of custody of his child;
Whereas in its judgment of 26 June 2003 the Court unanimously:
- held that there had been a violation of Article 8 of the Convention;
- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 20 000 euros in respect of non-pecuniary damage; 6 100 euros in respect of costs and expenses and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;
- dismissed the remainder of the applicant's claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the above judgment, having regard to Portugal's obligation under Article 46, paragraph 1, of the Convention to abide by it;
Recalling, in this context, that the obligation of all member states to abide by the judgments of the European Court of Human Rights in accordance with Article 46, paragraph 1, of the Convention involves an obligation to adopt individual measures in order to grant the applicants, to the extent possible, redress for the violations found (restitution in integrum), as well as to adopt general measures, including, to the extent possible, interim measures, to stop ongoing violations of the Convention and to prevent the recurrence of violations similar to those found by the Court;
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about individual measures and general measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;
Having satisfied itself that on 4 May 2004, after the expiry of the time-limit set due to delayed provision of required documentation by the applicant, the government of the respondent state had paid the applicant the sums provided for in the judgment,
Declares, after having examined the information supplied by the Government of Portugal, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
Appendix to Resolution CM/ResDH(2007)88
Information provided by the Government of Portugal
during the examination of the Maire case
by the Committee of Ministers
I.Individual measures
The government notes that the applicant's child, born in 1995, was abducted in France by its mother, a Portuguese national, on 03/06/1997 and, thereafter, has been living with her in Portugal. Following the hearing of 20/05/2004 before the Cascais Court regarding parental responsibility, custody of the child was awarded to the mother, accepting the child's integration in his new environment (judgment of 12/07/2004). According to this judgment, the applicant may exercise his visitation rights but will not be allowed to leave Portugal with the child without the mother's permission. Thereafter, no further issue has been raised by the applicant.
II.General measures
1 - Immediate publication and wide dissemination of the Court's judgment: The Court's judgment has been promptly translated and published on the Attorney General's website (). Also, in September 2003 the Ministry of Justice forwarded a translation of the Court's judgment to the Portuguese Central Authority (the Institute of Social Reintegration, see below) and at the same time it was brought to the attention of the Deputy Minister of Justice, the Supreme Council of Judges, the Ministry of the Interior and the Government's Office of Legislative Policy and Planning. Accordingly, the Court's judgment has become part of the training offered by the Centre for Judicial Studies, a state organisation responsible for holding annual training sessions for judges and prosecutors involved in cases relating to children's protection, in collaboration with the Portuguese Central Authority.
2 - Application by Portugal of the Convention of Judicial Co-operation between Portugal and France on the protection of minors (signed on 20/07/1983): This Convention was applied in the present case. The delays which occurred were exceptional and due to the attitude of the mother who, having abducted the child, remained in a situation of illegal displacement from 1997 until 2001, refusing to abide by the law, as also noted by the Court (see also §76 of the judgment).
2.1 Statistics: Between 2002 and 2004 Portugal was involved as a requested state in 104 cases relating to the application of international treaties concerning the return of children. Nine of these cases concerned the return of children to France in the context of the bilateral Convention mentioned above. As at 10/10/2005, only one of these returns had not yet been concluded. The average duration of proceedings before the Portuguese Central Authority has been 7.3 months. There have been only four cases in which the children's return was obtained by judicial means.
2.2 Application of above Convention in the context of Portuguese and new EU legislation: The Portuguese Government notes that the Convention between Portugal and France provides that the respective central authorities of each country must adopt measures necessary for the return of children unlawfully displaced from one state to another. Thus, upon the lodging by France of a request to the Portuguese Central Authority, this request is promptly forwarded to the prosecutor of the “Court for family and children” (Tribunal de Família e Menores) of the presumed place of residence of the abducted minor. It is this court which, having locating the child, adjudicates on the request of the individual or institution alleging violation of a right of custody. The Portuguese Central Authority is bound by the Convention to follow the procedure, to follow up possible requests for supplementary information to the applicant or the French Central Authority and to advise the above-mentioned court as to the urgent nature of these procedures.
Additional safeguards for the prompt enforcement of judicial decisions in this field have been provided by the EC Council Regulation No. 2201/2003 (applicable as from 01/03/2005) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
As a consequence, the Portuguese authorities do not regard it necessary to amend any further the current legislation on minors (Legislative Decree 314/78, especially Articles 181 and 191) which, in conjunction with Article 519 of the Code of Civil Procedure and Articles 249 and 348 of the Criminal Code, provides a legal framework safeguarding the execution of judicial decisions and the imposition of financial penalties or imprisonment (of up to one year) of child abductors who refuse to abide by the law (see §§59-60 of judgment and §§ 35-36 of judgment in the case of Reigado Ramos against Portugal, 22/11/2005).
2.3 The special issue of provision of legal aid to bereft parents under Portuguese and new EU legislation: In accordance with the positive obligations emanating from Article 8 of the Convention, in cases where the “Court for family and children” rejects a request for the return of a child and orders its stay in Portugal, the Portuguese Central Authority provides the applicants legal guidance (as in cases involving application of the 1980 Hague Convention on the civil aspects of international child abduction) by informing them of the possibility of obtaining cross-border legal aid (in this respect, see also Council Directive 2003/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes), and in particular of the possibility to appeal a decision rejecting their request for return or to initiate other proceedings before the competent Portuguese court, aimed at specifying the modalities of the exercise of the child's parental responsibility.
III.Conclusion of the respondent state
The Government of Portugal considers that the measures taken remedy to the extent possible, the violations of the Convention found by the European Court in this case and prevent similar violations in the future. Portugal has therefore complied with its obligations under Article 46, paragraph 1, of the Convention.
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