Last Updated on November 1, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no.36158/18
Fatoumata Binta BAH
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 26 February 2019 as a Committee composed of:
EgidijusKūris,President,
Paulo Pinto de Albuquerque,
Iulia AntoanellaMotoc,judges,
and Andrea Tamieti, DeputySection Registrar,
Having regard to the above application lodged on 26 July 2018,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms FatoumataBinta Bah, is a Guinean national, who was born in 1982 and lives in Laranjeiro, Portugal. She was represented before the Court by Ms M. Trigueiros, a lawyer practising in Lisbon.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant and her husband, Mr A.B., have four children, born in 2002, 2004, 2007 and 2010.
4. On an unknown date proceedings for the promotion and protection of the welfare of the applicant’s children were initiated with the Almada Family Court.
5. On 3 February 2014 the children were placed in foster care in a temporary accommodation centre (Centro de AcolhimentoTemporário– hereinafter, the “CAT”).
6. On 26 June 2014 it was determined that two lawyers should be appointed to represent the applicant and the applicant’s children respectively.
7. On 7 April 2015 the Almada Family Court held an adversarial hearing (debate judicial). During the hearing, a court-appointed interpreter in the language of Fula, one of the languages understood and spoken by the applicant, was present. The applicant was also represented by the lawyer appointed for her.
8. By a judgment of 6 May 2015 the Almada Family Court ordered that the applicant’s children be taken into care in a CAT with a view to adoption, forbidding visits by the biological family. That judgment was reasoned by reference to the fact that the children’s health, education, upbringing and development were at risk. In reaching that conclusion, the court noted, in particular, that the children had not attended any school or educational establishment for two years, had been living in poor sanitary conditions, had presented with scars on their bodies and had referred to episodes of ill‑treatment.
9. On an unknown date Mr A.B. appealed against that judgment to the Lisbon Court of Appeal.
10. On 5 November 2015 the Lisbon Court of Appeal confirmed the judgment of 6 May 2015 (see paragraph 8 above). In addition to the grounds taken into consideration by the Almada Family Court, the Court of Appeal noted that the applicant and A.B. had only contacted their children on a few occasions since they had been placed in the CAT and that that contact had been the cause of anxiety for the children. It thus concluded that there were no emotional ties between the parents and their children.
11. On 13 April 2016 the applicant, represented by a lawyer of her choosing, Ms M. Trigueiros – also representing her before the Court in the instant proceedings (see paragraph 1 above) – lodged a request for the reopening of the proceedings (recursoextraordinário de revisão), claiming that she had not understood the interpretation during the adversarial hearing (see paragraph 7 above).
12. On 5 May 2016 the Almada Family Court refused to reopen the proceedings, on the following grounds:
– the applicant had not shown that the request for reopening of the proceedings had been lodged within sixty days, counting from the day on which she had become aware that she had not fully understood the interpretation during the hearing (one of the formal requirements for reopening proceedings);
– during the proceedings, the applicant, although represented by a court-appointed lawyer, had never raised any issue regarding the interpretation; and
– in any event, the Almada Family Court’s conclusions forming the basis of the decision to place the children into care in a CAT had not been determined on the basis of the applicant’s statements.
13. Mr A.B., also represented by Ms M. Trigueiros, lodged several requests to consult the case file, all of which were refused on account of the confidential nature of the proceedings, with the aim of protecting the adopting parents’ anonymity, and on the grounds that the decision to place the children into care with a view to adoption had become final. The court ordered, nonetheless, that copies of the judgments in the proceedings be sent to Ms M. Trigueiros for her information. The last decision regarding the consultation of the case file was adopted on 15 February 2018.
COMPLAINTS
14. The applicant complained under Article 6 of the Convention that the proceedings had been unfair and that she had not been given the opportunity to defend herself owing to the refusal to allow her to consult the case file.
THE LAW
15. The applicant submitted that the proceedings before the Almada Family Court had been unfair. She also complained that the refusal to allow her to consult the case file had resulted in the children being separated from her and A.B.
16. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018, and Pontes v. Portugal, no. 19554/09, § 66, 10 April 2012), considers that the applicant’s submissions fall to be examined under Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Regarding the placement of the applicant’s children in an institution with a view to adoption
17. The Court reiterates that the six-month time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the final decision in the process of exhaustion of domestic remedies. This permits only remedies which are normal and effective to be taken into account as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006). The Court further refers to its extensive case-law to the effect that an application for a retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II, with further references), unless the use of that remedy had led, automatically or in the specific circumstances, to a full reconsideration of the case (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 60, 11 July 2017).
18. The Court observes that by a judgment of the Almada Family Court of 6 May 2015 the applicant’s children were placed in care with a view to adoption (see paragraph 8 above). This judgment was upheld by the Lisbon Court of Appeal on 5 November 2015, following an appeal lodged by Mr A.B. (see paragraphs 9 and 10 above)
19. No appeal against the Almada Family Court’s judgment of 6 May 2015 was lodged by the applicant.
20. Moreover, the request lodged by the applicant for the proceedings to be reopened (see paragraph 11 above) was refused because it did not comply with one of the formal requirements and therefore it did not entail a re-examination of the case on the merits (see paragraph 12 above; contrast with Moreira Ferreira (no. 2), cited above, §§ 60 and 70). The request for a reopening of the proceedings was thus not an adequate and effective remedy for the purpose of the instant application.
21. The final domestic decision within the meaning of Article 35 § 1 of the Convention is therefore the judgment of the Almada Family Court delivered on 6 May 2015, more than six months before the date on which the present application was submitted to the Court (26 July 2018). This complaint is therefore rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Regarding the alleged refusal to permit consultation of the case file
22. The Court reiterates that, in order to rely on Article 34 of the Convention, an applicant must meet two conditions: he or she must fall into one of the categories of petitioners mentioned in Article 34 and must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court’s established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. The word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts), with further references).
23. The Court observes that the applicant did not submit a request to consult the case file, as all such requests were actually lodged by Mr A.B. (see paragraph 13 above). The applicant was thus not a direct victim of the alleged violations. Even assuming the contrary, regard being had to the fact she is married to Mr A.B. and is the biological mother of the children to whom the file related, the Court cannot ignore the fact that the Lisbon Court of Appeal had already confirmed the removal of her parental authority on 5 November 2015 (see paragraph 10 above) and adoption proceedings had been pending since that date. The Court is therefore conscious that from that date it was necessary to ensure that the file remained confidential. Lastly, Mr. A.B. was nevertheless provided with copies of the judgments, through their mutual representative (see paragraph 13 above).
24. In view of the foregoing, the Court considers that the applicant’s complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 March 2019.
Andrea Tamieti EgidijusKūris
DeputyRegistrar President
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