Tribunal Europeu dos Direitos Humanos
2025-01-07 / 17:03
Direito ao respeito pela vida privada e familiar: artigo 8.º da CEDH
07-01-2025
CASE OF F.D. AND H.C. v. PORTUGAL (Application no. 18737/18) | Judgment (Merits and Just Satisfaction) | Court (Fourth Section) | 07/01/2025 | Conclusion(s): Preliminary objection dismissed (Art. 34) Individual applications (Art. 34) Locus standi - Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations - Article 8-1 - Respect for family life) - Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage. Just satisfaction) - Non-pecuniary damage - award (Article 41 - Non-pecuniary damage - Just satisfaction) | ECLI:CE:ECHR:2025:0107JUD001873718 | URL: https://hudoc.echr.coe.int/?i=001-238634
EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPÉENNE DES DROITS DE L'HOMME
FOURTH SECTION
CASE OF F.D. AND H.C. v. PORTUGAL
(Application no. 18737/18)
JUDGMENT
|
Art 8 • Positive obligations • Family life • Enforcement of Schengen seek and find order and child’s automatic return to mother with exclusive custody • Authorities’ failure to fulfil their obligations under the Hague Convention • Lack of any procedural safeguards • Lack of assessment of child’s best interests and father’s rights • Absence of judicial proceedings • Failure to protect minor kept at police station • Interference not necessary • Art 34 • Locus standi • Father’s standing to act on his son’s behalf in case circumstances as his parental responsibility was never withdrawn • Conflicting interests regarding the child Prepared by the Registry. Does not bind the Court. |
STRASBOURG
7 January 2025
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of F.D. and H.C. v. Portugal,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Lado Chanturia, President,
Jolien Schukking,
Faris Vehabović,
Ana Maria Guerra Martins,
Anne Louise Bormann,
Sebastian Răduleţu,
András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having regard to:
the application (no. 18737/18) 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 French and Portuguese national, Mr F.D., and a Portuguese national, H.C. (“the applicants”), on 16 April 2018;
the decision to give notice to the Portuguese Government (“the Government”) of the complaints concerning Article 8 of the Convention and to declare inadmissible the remainder of the application;
the decision not to have the applicants’ names disclosed;
the parties’ observations;
the fact that the French Government did not express a wish to intervene in the present case (Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court);
Having deliberated in private on 3 December 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the enforcement of a seek and find order issued by the French authorities for the second applicant, the son of the first applicant, and his subsequent return to his mother, O. The applicants complained that proceedings brought against them by the Matosinhos Public Prosecutor’s Office had been unfair. They complained in particular about the lack of a hearing and the return of the second applicant to O. without an assessment of whether he was at grave risk of harm, in breach of their right to private and family life. They also claimed they had had no effective remedy in respect of those alleged wrongs. They relied on Articles 6 § 1, 8, and 13 of the Convention.
THE FACTS
2. The applicants are father and son, who were born in 1970 and 2010 and are living in Serpins, Portugal and in France respectively. They were represented by Mr J.J. Ferreira Alves, a lawyer practising in Matosinhos.
3. The Government were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General and, after 1 September 2022, M. Ricardo Bragança de Matos, Public Prosecutor.
4. The first applicant lodged the application on his own behalf and on behalf of his son, the second applicant, who is a minor.
5. The facts of the case may be summarised as follows.
[…]
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 10,000 (ten thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 6,000 (six thousand euros) to the applicants jointly, plus any tax that may be chargeable to the applicants, 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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 7 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
HUDOC | ECHR | https://hudoc.echr.coe.int/#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-238634%22]}
CASE DETAILS
Originating Body: Court (Fourth Section)
Document Type: Judgment (Merits and Just Satisfaction)
Title: CASE OF F.D. AND H.C. v. PORTUGAL
App. No(s). 18737/18
Importance Level: 2
Respondent State(s): Portugal
Judgment Date: 07/01/2025
Conclusion(s): Preliminary objection dismissed (Art. 34) Individual applications (Art. 34) Locus standi - Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations - Article 8-1 - Respect for family life) - Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage - Just satisfaction) - Non-pecuniary damage - award (Article 41 - Non-pecuniary damage Just satisfaction)
Article(s)
34
8
8-1
8-2
41
Separate Opinion(s): No
Strasbourg Case-Law
Andersena v. Latvia, no. 79441/17, § 113, 19 September 2019
C v. Croatia, no. 80117/17, § 78, 8 October 2020
C. v. Finland, no. 18249/02, § 54, 9 May 2006
Giorgioni v. Italy, no 43299/12, § 64, 15 September 2016
Hadzhieva v. Bulgaria, no. 45285/12, §§ 58 61, 1 February 2018
Hromadka and Hromadkova v. Russia, no. 22909/10, § 119, 11 December 2014
Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, 19 October 2000
Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, 29 April 2003
Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, 25 January 2000
Iosub Caras v. Romania, no. 7198/04, § 21, 27 July 2006
more…
International Law
Articles 2, 7 and 13 (b) of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (Hague Convention)
Regulation (EC) No. 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Brussels II bis Regulation)
Keywords
(Art. 34) Individual applications
(Art. 34) Locus standi
(Art. 8) Right to respect for private and family life
(Art. 8) Positive obligations
(Art. 8-1) Respect for family life
(Art. 8-2) Necessary in a democratic society
(Art. 8-2) Protection of the rights and freedoms of others
(Art. 41) Just satisfaction-{general}
(Art. 41) Pecuniary damage
(Art. 41) Just satisfaction
(Art. 41) Non-pecuniary damage
ECLI:CE:ECHR:2025:0107JUD001873718
