Resolution CM /ResDH(2007) 89 [1]

Execution of the judgment of the European Court of Human Rights

Salgueiro da Silva Mouta against P ortugal

(Application No. 3320/96, judgment of 21 December 1999, final on 21 March 2000)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the infringement of the applicant ' s right to respect for his family life as well as a discrimination based on sexual preference on account of the decision by the Lisbon Appeal Court of 9 January 1996 conferring on his ex-wife parental authority in respect of his daughter, M. (born in 1987), this decision being based solely on his homosexuality (violation of Article 8 combined with Article 14, see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with P ortugal ' s obligation under article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing, similar violations,

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considered the decision taken at the 819th meeting of the Ministers ' Deputies (17 December 2002), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution ResDH(2007)89

Information about the measures to comply with the judgment in the case of

Salgueiro da Silva Mouta against P ortugal

Introductory case summary

The case concerns the infringement of the applicant ' s right to respect for his family life as well as a discrimination based on sexual preference on account of the decision by the Lisbon Appeal Court of 9 January 1996 conferring on his ex-wife parental authority in respect of his daughter, M. (born in 1987), this decision being based solely on his homosexuality (violation of Article 8 combined with Article 14).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

2 150 000 P TE

2 150 000 P TE

P aid on 17/05/2000

The Court indicated that the finding of the violation constitutes in itself sufficient just satisfaction.

b) Individual measures

In 1999, the applicant introduced a new application before the domestic courts and the question of his parental authority was re-examined. In this connection, the P ortuguese authorities underlined that, in conformity with the direct effect of the Convention in P ortuguese law, the courts would assess the interest of the child without referring to the grounds which had been considered to violate the Convention. They also recalled that it was possible to modify parental authority rights at any time, depending on any new circumstance justifying a re-examination of the situation.

II. General measures

The government considers that, given the direct effect of the Convention and its jurisprudence in P ortuguese law, the domestic courts will interpret the relevant provisions, in particular those concerning parental authority and custody rights, in such a way as to prevent new violations similar to that found in this case.

With a view to facilitating this, the government forwarded the judgment to the relevant authorities and published it on the website of the Documentation and Comparative Law department of the Office of the General prosecutor of the Republic - http://www.gddc.pt/direitos-hu m anos/portugal-dh/acordaos/salgueirodasilva.pdf - , and, in P ortuguese, at the address http://ww w .gddc.pt/direitos-humanos/portugal-dh/acordaos/traducoes/Trad_Q33290_96.pdf .

This judgment was furthermore selected as one the study-cases to be analysed in training sessions on the European Convention of Human Rights in the framework of the initial and continuous training of judges organised by the Centre for Judicial Studies.

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicant of the violation found in this case, that they will prevent new, similar violations in future and that P ortugal has therefore complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 June 2007 at the 997th meeting of the Ministers’ Deputies.