SECOND SECTION

DECISION

Applications nos . 53235/11 and 8784/13 Silvia BRÁS DE MATOS against Portugal and Sandra Maria DA COSTA TORREZÃO against Portugal

The European Court of Human Rights (Second Section), sitting on 12 November 2013 as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş, Peer Lorenzen, András Sajó, Nebojša Vučinić, Paulo Pinto de Albuquerque, Egidijus Kūris, judges, and Stanley Naismith , Section Registrar ,

Having regard to the above applications lodged on 10 August 2011 and 29 January 2013 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Ms Silvia Brás de Matos, is a Portuguese national, who was born in 1968 and lives in Entroncamento.

2. The applicant in the second case, Ms Sandra Maria da Costa Torrezão, is a Portuguese national, who was born on 7 September 1984 and lives in Setúbal.

A. The circumstances of the case

3. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Application no. 53235/11

4. On 3 November 2009 the applicant gave birth to C. in Leiria.

5. On an unknown date, the Commission for the Protection of Children and Young Persons ( Comissão de Protecção de Crianças e Jovens – CPCYP) of Torres Novas reported the applicant ’ s family situation to the Prosecutor ’ s Office at the Entroncamento Court. Proceedings for the protection of children and young persons ( processo de promoção e protecção de crianças e jovens em risco ) were initiated and the prosecutor ordered that C. was not to leave the hospital.

6. On 12 November 2009, C. was provisionally placed in a foster home 12 kilometres away from the applicant ’ s home. The admission into foster care was decided on the grounds that the applicant was living in substandard housing, without furniture, that she was suffering from a mild psychological and emotional condition and that she was unemployed. The decision was also based on the fact that the applicant ’ s partner, who was the father of the child, was alcoholic and had displayed violent behaviour towards the applicant.

7. On an unknown date, the applicant moved to a new apartment in Entroncamento and left her partner.

8. On 2 December 2009, the prosecutor confirmed the placement of C. in foster care for a period of three months and the applicant agreed to see a psychiatrist on a regular basis.

9. Between 12 May and 3 June 2010, the applicant, who was then suffering from depression owing to the separation from her child, was admitted to the Coimbra Psychiatric Unit.

10. On 29 June 2010, the placement of C. in foster care was extended for another six months and the applicant renewed her promise to see a psychiatrist and promised to find a job, as well as better housing.

11. On 21 December 2010, the prosecutor confirmed the placement of C. pending review of the interim protection order as provided for by law.

12. The applicant, who was granted legal aid, opposed the extension of the measure and the case was brought before the Entroncamento Court. The prosecutor requested that the child be placed in foster care with a view to her adoption; the applicant requested that she be returned to her.

13. By a judgment of 17 May 2011, the Entroncamento Court ordered the final placement of C., then eighteen months old, in foster care with a view to her adoption. Relying, in particular, on the statements from the social services in Torres Novas and from the foster home ’ s staff, the court considered that the applicant was not in a position to change her situation and fulfil her parental duties. As no other family member was available to take care of the child, the court considered that the placement in foster care, with a view to adoption, would be in the best interests of the child.

14. The applicant chal lenged the decision before the E vora Court of Appeal ( Tribunal da Relação de Évora ), which, on 22 September 2011, dismissed the appeal and upheld the decision of the first ‑ instance court.

15. There was no subsequent appeal before the Supreme Court of Justice ( Supremo Tribunal de Justiça ).

2. Application no. 8784/13

16. On 7 April 2009, the CPCYP was informed that the applicant was living in poor conditions and about to give birth. The applicant and her partner were both HIV-positive. The former had an unstable professional and personal life and had previously suffered the loss of a child in circumstances which remained unclear. The latter had a long history of drug addiction.

17. On 13 May 2009 the applicant gave birth to J.P. in Setúbal.

18. The child was immediately admitted to the paediatric service of the hospital and then placed in foster care following an interim protection order issued on 28 May 2009.

19. On an unknown date, the case was brought before the Setúbal Family Court ( Tribunal de Família e Menores de Setúb al), which held a hearing on 3 May 2010. The applicant alleged that she had not been informed of the hearing and had therefore not been heard by the court.

20. On 6 May 2010, the Setúbal Family Court ordered the placement of the child in foster care with a view to his adoption.

21. On 11 May 2010, the applicant ’ s newly appointed lawyer chall enged that decision before the E vora Court of Appeal, which, on 17 November 2010, upheld the first-instance decision.

22. Despite the applicant ’ s wish, the appointed lawyer did not bring the case before the Supreme Court, considering that an appeal against a decision based on “suitability and appropriateness” ( conveniência ou oportunidade ) would be barred by Article 1411, paragraph 2, of the Code of Civil Procedure.

23. On an unknown date, the applicant wrote a letter to the Supreme Court, which replied, on 18 November 2011, that it could only hear formal appeals against decisions of lower jurisdictions lodged in compliance with the applicable rules.

24. On 10 February 2011, the applicant lodged an administrative request with the Prosecutor ’ s Office. The request was closed on 23 March 2012 and a similar request was again closed on 24 September 2012.

25. On 25 September 2012, the applicant was informed that the case was being transferred to the Barreiro Family Court ( Tribunal de Família e Menores do Barreiro ). The reasons for this transfer are unknown.

26. On 24 October 2012 the applicant was notified that the Barreiro Court would discontinue the proceedings as the case h ad already been settled by the E vora Court of Appeal.

B. Relevant domestic law

1. Interim protection orders

27. The relevant legislation relating to interim protection orders is described in the Court ’ s judgments in the cases of Assunção Chaves v. Portugal , no. 61226/08 , § § 56-58, 31 January 2012 and Pontes v. Portugal , no. 19554/09 , §§ 61-63, 10 April 2012.

In particular, Section 100 of Law no. 147/99 of 1 September 1999 on proceedings for the promotion of rights and protection of children and young persons in danger ( processo de promoção de direitos e protecção das crianças e jovens em risco ), as amended by Law no. 31/2003 of 22 August 2003, reads as follows:

“ Proceedings for the protection of children and young persons in danger ... are based on voluntary jurisdiction [Jurisdição voluntária].”

2. Appeals

28. Article 1411, paragraph 2, of the Portuguese Code of Civil Procedure reads as follows:

2 – Decisions adopted on grounds of suitability or appropriateness [conveniência ou oportunidade] shall not be subject to appeal before the Supreme Court of Justice.

3. Relevant case-law of the Supreme Court of Justice

29. The relevant case-law of the Supreme Court of Justice shows a general trend towards recognition of the Supreme Court ’ s jurisdiction to hear appeals relating to the protection of children and young persons as long as the appeals raise issues of law and do not question the “suitability or appropriateness” of the lower court ’ s decisions, which are matters of fact. The following are some excerpts from relevant decisions:

“ ... The intervention of the Supreme Court of Justice in the judgment of appeals is limited to an assessment of the decisions taken in accordance with strict legality. 3. It can verify compliance with requirements, procedural or substantive, the power to choose the most convenient measure to protect the interests at stake and the compliance with the purpose for which such powers were allocated to the courts, but not the suitability or appropriateness of that choice.” (10 April 2008)

“... However, this limitation does not imply that the intervention of the Supreme Court of Justice should be totally excluded with regard to this type of appeal; it merely restricts it to an assessment of the appealed decisions as far as the strict application of the law is concerned. In particular, [it restricts the Supreme Court ’ s assessment] to the procedural and substantive grounds on which the power to adopt the relevant measure ... is exercised” (20 January 2010).

“As proceedings for the promotion and protection of children and young persons at risk are qualified as voluntary jurisdiction proceedings, ... its [Supreme Court of Justice] intervention can only be limited to verifying the procedural and substantive assumptions legally established for the application of the measure that has been determined by the lower court and its adequacy for the purpose to which the criteria of suitability and appropriateness must be subordinated.” (4 May 2010)

“... However, this legal provision must be carefully interpreted as, frequently, the appeals do not only relate to lower courts ’ decisions based on suitability or appropriateness but also to the enforceability of the legal requirements or other requirements on which the decisions are based, namely their compliance with constitutional or supranational norms, which are subject to the scrutiny of the Supreme Court of Justice.” (21 October 2010).

“Granting custody [of the child] to the person selected for adoption or to an institution with a view to future adoption triggers a severance in any existing relation with the biological family of the child. ... Such a measure is based on the general assumption that there is no affective parent-child relationship, or that any such relationship is severely impaired, and can only be decided in the situations described [Article 1978, paragraph 1, of the Civil Code] where verification is subject, on appeal, to the Supreme Court of Justice ’ s scrutiny.” (30 June 2011).

COMPLAINTS

30. Invoking, in substance, Article 8 of the Convention, the applicants complained that they had been separated from their respective children for no reason and, therefore, their right to respect for family life had been violated.

Invoking, in substance, Article 6 of the Convention, they alleged that the domestic proceedings relating to the placement in foster care of their respective children, with a view to adoption, had been unfair.

31. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , 19 February 1998, p. 223, § 44, Reports of Judgments and Decisions 1998 ‑ I), and that it has previously held that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, among other authorities, McMichael v. the United Kingdom , 24 February 1995 § 87, Series A no. 307 ‑ B; Ignaccolo-Zenide v. Romania , no. 31679/96, § 99, ECHR 2000 ‑ I and Pontes v. Portugal , no. 19554/09 , § 66, 10 April 2012 ).

In the instant case, the complaint raised by the applicants under Article 6 is closely linked to their complaint under Article 8 and may accordingly be examined as part of the latter complaint.

THE LAW

32. Pursuant to Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

33. In both cases, the applicants complained about the assessment made by the CPCYP and the domestic courts of their home and living conditions, as well as the interests of their respective children. They also alleged that they had not been properly informed about the relevant proceedings and therefore had been deprived of the possibility to state their respective cases effectively before the domestic courts.

34. At the outset, the Court notes that the applicants challenged the first-instance decisions in the ir respective cases before the E vora Court of Appeal, but did not challenge the Court of Appeal ’ s decisions before the Supreme Court. Therefore, the Court must assess whether, before lodging their applications in Strasbourg, the applicants exhausted the domestic remedies available to them as required by Article 35 § 1 of the Convention.

35. In this connection, the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus, the complaint must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation. More specifically, the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 [extracts]).

Moreover, the existence of remedies must be sufficiently certain not only in theory but also in practice. In determining whether any particular remedy meets the criteria of availability and effectiveness, regard must be had to the particular circumstances of the individual case . The position taken by the domestic courts must be sufficiently consolidated in the national legal order (see Martins Castro and Alves Correia de Castro v. Portugal , no. 33729/06, § 55, 10 June 2008) .

36. The Court notes that Section 100 of Law no. 147/99 of 1 st September 1999, as amended by Law no. 31/2003 of 22 August 2003, provides that proceedings for the protection of children and young persons in danger are based on the so-called “voluntary jurisdiction” ( Jurisdição voluntária ). In addition, Article 1411, paragraph 2, of the Portuguese Code of Civil Procedure states that decisions adopted on grounds of “suitability or appropriateness ” shall not be subject to appeal before the Supreme Court of Justice.

37. In the case of the second applicant, the lawyer appoint ed to represent her before the E vora Court of Appeal interpreted Article 1411, paragraph 2, of the Code of Civil Procedure, as barring an appeal before the Supreme Court. There is no information as to why the first applicant did not lodge an appeal before the Supreme Court .

38. However, in several cases, the Supreme Court has asserted its jurisdiction to hear appeals relating to the protection of children and young persons as far as points of law, whether substantive or procedural, were concerned. In particular, in a decision of 21 October 2010, the Supreme Court considered that it had jurisdiction to hear cases raising issues of constitutional or “supranational” law (see paragraph 29 above). To the Court ’ s knowledge, to date there have been no Supreme Court decisions expressing a different approach. The position taken by the Supreme Court must therefore be considered as sufficiently consolidated in the national legal order.

39. In the light of this jurisprudence, the Court considers that cases relating to the protection of children and young persons which raise issues under Article 8 of the Convention, whether explicitly or in substance, are likely to fall within the categories for which an appeal before the Supreme Court is available. In this connection, the Court observes that in the case of Pontes v. Portugal , no. 19554/09 , § 56, 10 April 2012 , the applicants had indeed lodged an appeal before the Supreme Court, which had then delivered a reasoned and exhaustive judgment on the merits of the case.

40. It follows that, in the present case, the applicants, who were granted legal aid during the domestic proceedings, had available an effective remedy before a third level of jurisdiction which they did not use.

41. W hether they were unaware of the Supreme Court ’ s case-law or they believed that the Supreme Court would declare their appeals inadmissible because in their view the second-instance decisions did not raise issues of law is irrelevant, as it was for the Supreme Court to assess the admissibility of any such appeal.

42. For these reasons, the applications must be rejected pursuant to Article 35 § 1 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the C ourt unanimously

Decides to join the applications;

Declares the applications inadmissible.

Stanley Naismith Guido Raimondi Registrar President