FOURTH SECTION
DECISION
Application no. 4655/24
José António COSTA TAVARES
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 18 November 2025 as a Committee composed of:
Anja Seibert-Fohr, President,
Ana Maria Guerra Martins,
András Jakab, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 4655/24) 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”) on 6 February 2024 by a Portuguese national, Mr José António Costa Tavares (“the applicant”), who was born in 1974 and at the time of the application was detained in Paços de Ferreira Prison;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. At the material time, the applicant was detained in Paços de Ferreira Prison. He was granted prison leave (licença de saída jurisdicional) from 23 until 26 September 2022.
2. On 25 September, during the prison leave, his mother died. On 26 September he requested authorisation from the director of Paços de Ferreira Prison to attend the funeral the following day. On the same day his request was denied on the grounds that, owing to a prison guard strike called for the next day, it would be impossible to escort him to the funeral, as that service was not included among the essential services to be provided during the strike.
3. On 3 April 2023 the applicant lodged a criminal complaint with the Paços de Ferreira prosecution service against the prison director for abuse of power. On 11 September 2023 the public prosecutor at the Paços de Ferreira Department of Criminal Investigation and Prosecution (“the DIAP”) dismissed the criminal complaint on the grounds that the prison director’s conduct had not constituted abuse of power. On 17 January 2024 the decision to dismiss the complaint was upheld by the director of the DIAP in his capacity as the public prosecutor’s superior.
4. Without relying on any Article of the Convention, the applicant complained that by denying his request to attend his mother’s funeral, the prison director had violated his rights.
THE COURT’S ASSESSMENT
5. The Court reiterates that it is an essential part of a prisoner’s right to respect for family life that the prison authorities assist him or her in maintaining contact with his or her close family (see Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). It further reiterates that the refusal of leave to attend a relative’s funeral constitutes an interference with the right to respect for family life guaranteed by Article 8 of the Convention (see, among others, Płoski v. Poland, no. 26761/95, § 32, 12 November 2002, and Solcan v. Romania, no. 32074/14, § 24, 8 October 2019).
6. However, the Court must first determine whether, in view of the circumstances of the case, domestic remedies were available at the material time, and if so, whether the applicant has made use of them.
7. The general principles on the exhaustion of domestic remedies under Article 35 § 1 have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014) and most recently reiterated in Mansouri v. Italy ((dec.) [GC], no. 63386/16, § 84, 29 April 2025).
8. Turning to the present case, the Court notes that at the material time the applicant was on prison leave (see paragraph 1 above), which had been authorised by the Sentence‑Supervision Court (Tribunal de Execução das Penas – “the TEP”) under Article 76 and Article 79 § 1 of the Code for the Execution of Prison Sentences (“the CEP”).
9. The applicant requested authorisation from the prison director on 26 September 2022 to attend his mother’s funeral the following day (see paragraph 3 above). It is unclear whether he was requesting an extension of his ongoing prison leave or special administrative leave (licença de saída administrativa especial), which, under Article 76 § 3 (c) and Article 82 § 1 (a) of the CEP, provides for the possibility of a prisoner to attend a close relative’s funeral and must be authorised by the prison director.
10. Nevertheless, while his request was rejected by the prison director on 26 September 2022 (see paragraph 2 above), the applicant did not appeal against that decision to the TEP – which was the competent authority under Article 138 § 1 (g) of the CEP to decide on appeals concerning a prison director’s decisions – by way of an urgent procedure in accordance with Article 151 § 2 of the CEP. Furthermore, the Court also finds that the applicant could have brought a non-contractual liability action against the State in order to seek damages for the harm caused to him by his absence at his mother’s funeral (regarding the remedy of a non-contractual liability action, see, mutatis mutandis, Duarte Agostinho and Others v. Portugal and 32 Others (dec.) [GC], no. 39371/20, § 45, 9 April 2024).
11. The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity to prevent or put right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are exempted from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal system (see Vučković and Others, cited above, § 70).
12. In view of the above, the application must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 December 2025.
Crina Kaufman Anja Seibert-Fohr
Acting Deputy Registrar President