AFFAIRE REIGADO RAMOS CONTRE LE PORTUGAL

Rezoluția CM/ResDH(2012) 132 [1] Reigado Ramos împotriva Portugaliei Executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 7329/01, Hotărârea din 22 noiembrie 2005, definitivă la 22 februarie 2006) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede că el supraveghează executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "menționate mai jos") (denumită în continuare "Convenția" și "Curtea"), având în vedere hotărârea definitivă a Curții, care a fost transmisă Comitetului în cauza de mai sus. Reamintind că încălcarea convenției constatată de Curte în această cauză a fost cauzată de faptul că autoritățile nu și-au îndeplinit din 1997 obligația de a depune eforturi adecvate și suficiente pentru a asigura respectarea dreptului de acces al reclamantului la fiica sa, născută în 1995, și că acest drept nu a fost încă pus în aplicare atunci când Curtea a pronunțat hotărârea (încălcare a articolului 8) Reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) din convenție, de a se conforma hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura în care este posibil prin restitutio in integrum; și măsuri generale pentru prevenirea unor astfel de încălcări; invitând guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor menționate anterior După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii și care au luat act de faptul că: a fost transmisă Curții nicio cerere de satisfacție echitabilă care, în consecință, nu a acordat nimic în acest sens (a se vedea documentul DH-DD(2012)52 [2] Urmărind în mod regulat evoluțiile din cadrul procedurii de executare a hotărârii Curții, în special chestiunea măsurilor individuale pe baza informațiilor transmise în această privință de către guvern și de către reclamant cu privire la procedurile interne inițiate de acesta din urmă pentru a obține o restitutio Õrum Observând că procedurile menționate anterior au fost încheiate pe motiv că nu a fost de dorit să le urmărească sau să le impună vizite forțate, împotriva voinței copilului, care a atins vârsta de 16 ani, și că reclamantul nu a dorit să impună astfel de vizite; având în vedere faptul că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1) DECLARĂ că: action Report regarding the execution of the European Court of Human Rights Judgment in the case of Reigado Ramos (Application N 73229/01) I - IDENTIFICARE OF THE CASE Date of the Judgment: 22 November 2005 of the application: 7329/01 Name of the applicant: Jose Manuel Reigado Ramos Case description: The case resurses the failure to take adequate and sucient action to enforce the applicant Electroluxs right of access to his child, born in 1995 (violation of Article 8). In 1998, the applicant brought procesing procesing seeking the judicial enforcement of an agreement conclused by the aplicant and the mother after separation in 1997, privining their child, concording to which the aplicant should a right of access. Over several years, the mother could not be found by the domestic Court, even though it undertook several steps to locate her (i.e. de requesting asistance from the police and the social security services).The procesedings were closed in 2003 with the decision by the curte to impun a modernate fin on the mother and to award equaly modernis damages to the aplicant. Puncting out that the aplicant had last seen seen daughter on 04/10/1997, when she had been just two years old, the European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which was still valid, had been automatic and steotyped and that those authorities had failed to take Practical and concrete steps to resolve the issue. The European Court noted in parts together or actively involve the social services in finding a solution to the prosecution nor the content scurt had tried to brig the partis together or actively involved the social services in finding a solution to the prosecution, while the simple passing of time was having increasingly serious consecvences for the aplicant, deprived of any contact with his young child (§53-54 of the jidment). II - INDIVIDUAL MEASURI: (a) Payment of the just satisfaction: No just satisfaction was awarded by the Court, in the absence of a request by the aplicant under Art. 41 of the Convention. (b) Other Measures: in February 2007, the Portuguese delegation informed the Committee that, with the asistence of the judicial police, the whereabouts of the mother and the child had been identified. As agreed before the judge in June 2007, before a new regime on the right to access could betermined, the child and both parintii underwent psihological examination (which began in beginning 2008), folowed by preparatory psihological support. The latter started in 2009, through the mediation of the Centre for Children Development (CADIN). În acest context, show-ul lui Child Clearly a refuzat să-l vadă pe Father. Altthough the applicant expresed the wish to miet his daughter and develop his relations with her, he was aware of the need to respect her feelings and to wait for his child to her current pozition. În June, 2010, following the judge. order, a psihotherapeutic intervention only with the child, placed at the posibil re-established of the father-child contact, began. Following the psihological and psihotherapeutic supports, on 03/05/2011, an interviu by the judge with the two parinti in the presence of the child took place. Applicantul daughter, now aged 16, expresd again her wish not to have any contact with her father and for any future contact to be her choice, as opus to an obligation enforced by a scurt. The applicant did not ask anything further from the court. Considering the overall situation, the judge noted that the mother indeed continued to disection the established visition regime (of 1997) and impuned a new fil on her (following the one of 2003- see case description). Furtermore, in light of the best interests of the child and taking into account the principles enshrined in the case law of the European Court, as well as on the bazis of the favorable opinie of the public prosecutor, the judge closed the case on the grounds that it was undesirable to continue it or to impune visives by force, against the will of the child, and the aplicant did not wish for the latter. IIl - Général MEASSURI: (a) Publication, translation and disemination: A copy of the judgment was simte to all national authorities revised, including to the lnstituto de Reinseryao Social (The Institute of Social Reintegration, which carries out social investigations ordered in the framework of scurt process on matters raported to parental rights). The judgment was also translated and publicished on the Internet (www.gddc.pt). In addition, the judgment was mirosit out by the Portuguese Attorney General to all magistrates working with scurts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforemented Institute of Social Reintegration were requested to adoption aptate measures in order to prevent new, similar viols in the viitor. b) Legislative Measures: Law No. 61/2008 on divort (entered into force on 01/12/2008) modified the Civil and the Criminal Codes. art. 1906 din Codul civil privind exerciția parentală authority provides inter alia that the tribunal will decide on the right of access on the bazis of the celst of the child. According to the new Article 1776-A, an agreement on the exercition of parental authority is submitted to the prosecutor at the first-instance tribunal, who shall assess it within 30 days. In case the prosecutor considerers that the agrement respects the best interest of the child, it is simte to the General Register Office for omologare. If, on the contrary, the prosecutor considerers that the agreement does not suficiently respect the cel mai interesant of the child, the parinte have the possibility to change it acording to the prosecutor The assessment of the prosecutor, the latter will send the agreement to the court for a decission by a judge. Articole 249 (Abduction of minors) and 250 (Minutenance obligation) of the Criminal Code have also been amended. art. 249 provides that child abduction or reiterated and unjustified refuzal to abide by agreements regulating the exercition of parental authority is sanctionable by up to two years Priviri failure to comply with the agreement, the penalty is softened when the parintes. c) Other Measures: The Portuguese authorities informated that the Institute for Social Security has been jacked with contents referenting parental authority. The Institute is carrying out activities addressed to all professionals co mail operating with scurts in civil tutelary matters placed at improving their intervention in thefield. Moreover, in 2008, 24 de trening activities on Mediation and conpolit management and the Evaluation of parental competes took place. In 2009, the Institute for Social Security carried out 13 trening activities on the new law 61/2008. Furthermore, another 13 trening activities revising "Interview Technologies in cases of parental conpolitt," as well as workshops on "pozitive parental relations" took place. IV - CONCLUZIE The Portuguese Authorities consider that no other individual measure is required in these cases, that the general Measures adopted will prevent similar încălcăris and that Portugal has thus commed with its obligations under Article 46, paragraph 1, of the convention. [1] Adoptată de Comitetul de Miniștri la 26 septembrie 2012 cu ocazia celei de a 1150-a reuniuni a Delegaților miniștrilor. [2] numai în limba engleză

Résolution CM/ResDH(2012)132

[1]

Reigado Ramos contre Portugal

Exécution de l’arrêt de la Cour européenne des droits de l’homme

(Requête n

o

73229/01, arrêt du 22 novembre 2005, définitif le 22 février 2006)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit qu’il surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif, qui a été transmis par la Cour au Comité dans l’affaire ci-dessus

;

Rappelant que la violation de la Convention constaté par la Cour dans cette affaire découlait du fait que les autorités avaient manqué depuis 1997 à leur obligation de déployer des efforts appropriés et suffisants pour faire respecter le droit d’accès du requérant à sa fille, née en 1995, et que ce droit n’avait pas encore été mis en œuvre lorsque la Cour a rendu son arrêt (violation de l’article 8)

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

; et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer aux obligations susmentionnés

;

Ayant examiné le bilan d’action fourni par le Gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt et ayant noté qu’aucune demande de satisfaction équitable n’avait été transmise à la Cour qui, en conséquence, n’as rien accordé à ce titre (voir document

DH-DD(2012)52

)

[2]

;

Ayant régulièrement suivi les développements de l’exécution de l’arrêt de la Cour, notamment la question des mesures individuelles sur la base des informations transmises à cet égard par le gouvernement et le requérant concernant les procédures internes engagées par ce dernier afin d’obtenir une

restitutio integrum

;

Notant que les procédures susmentionnées ont été closes au motif qu’il n’était pas souhaitable de les poursuivre ou d’imposer des visites forcées, contre la volonté de l’enfant, qui avait atteint l’âge de 16 ans, et que le requérant ne souhaitait pas imposer de telles visites ;

S’étant assuré que toutes les mesures requises par l’article 46§1 ont été adoptées

;

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

Action Report regarding the execution of the European

Court of Human Rights judgment

in the case of Reigado Ramos (Application N

o

73229/01)

I - IDENTIFICATION OF THE CASE

Date of the judgment: 22 November 2005

N

o

of the application: 73229/01

Name of the applicant: Jose Manuel Reigado Ramos

Case description:

The case concerns the failure to take adequate and sufficient action to enforce the applicant’s right of access to his child, born in 1995 (violation of Article 8).

In 1998, the applicant brought proceedings seeking the judicial enforcement of an agreement concluded by the applicant and the mother after separation in 1997, regarding their child, according to which the applicant should have a right of access. Over several years, the mother could not be found by the domestic court, even though it undertook several steps to locate her (i.e. by requesting assistance from the police and the social security services). The proceedings were closed in 2003 with the decision by the court to impose a moderate fine on the mother and to award equally moderate damages to the applicant.

Pointing out that the applicant had last seen his daughter on 04/10/1997, when she had been just two years old, the European Court found that the measures taken by the Portuguese authorities with a view to enforcing the agreement, which was still valid, had been automatic and stereotyped and that those authorities had failed to take practical and concrete steps to resolve the issue. The European Court noted in particular that neither the prosecution nor the competent court had tried to bring the parties together or actively involve the social services in finding a solution to the problem, while the simple passing of time was having increasingly serious consequences for the applicant, deprived of any contact with his young child (§§53-54 of the judgment).

II - INDIVIDUAL MEASURES:

a) Payment of the just satisfaction:

No just satisfaction was awarded by the Court, in the absence of a request by the applicant under Art. 41 of the Convention.

b) Other measures:

In February 2007, the Portuguese delegation informed the Committee that, with the assistance of the judicial police, the whereabouts of the mother and the child had been identified.

As agreed before the judge in June 2007, before a new regime on the right to access could be determined, the child and both parents underwent psychological examinations (which began in beginning 2008), followed by preparatory psychological support. The latter started in 2009, through the mediation of the Centre for Children Development (CADIN). In this context, the child clearly showed her refusal to see her father. Although the applicant expressed the wish to meet his daughter and develop his relations with her, he was aware of the need to respect her feelings and to wait for his child to change her current position.

In June, 2010, following the judge’s order, a psychotherapeutic intervention only with the child, aimed at the possible re-established of the father-child contact, began.

Following the psychological and psychotherapeutic supports, on 03/05/2011, an interview by the judge with the two parents in the presence of the child took place. The applicant’s daughter, now aged 16, expressed again her wish not to have any contact with her father and for any future contact to be her choice, as opposed to an obligation enforced by a court. The applicant did not ask anything further from the court.

Considering the overall situation, the judge noted that the mother indeed continued to disrespect the established visit regime (of 1997) and imposed a new fine on her (following the one of 2003- see case description). Furthermore, in light of the best interests of the child and taking into account the principles enshrined in the case law of the European Court, as well as on the basis of the favourable opinion of the public prosecutor, the judge closed the case on the grounds that it was undesirable to continue it or to impose visits by force, against the will of the child, and the applicant did not wish for the latter.

Ill - GENERAL MEASURES:

a) Publication, translation and dissemination:

A copy of the judgment was sent to all national authorities concerned, including to the

lnstituto de Reinseryao Social

(the Institute of Social Reintegration, which carries out social investigations ordered in the framework of court proceedings on matters related to parental rights). The judgment was also translated and published on the Internet (www.gddc.pt). In addition, the judgment was sent out by the Portuguese Attorney General to all magistrates working with courts that deal with family cases. Finally, both the Supreme Council of Magistrates and the aforementioned Institute of Social Reintegration were requested to adopt appropriate measures in order to prevent new, similar violations in the future.

b) Legislative measures:

Law No. 61/2008 on divorce (entered into force on 01/12/2008) modified the Civil and the Criminal Codes.

Article 1906 of the Civil Code on the exercise of parental authority provides inter alia that the tribunal will decide on the right of access on the basis of the best interest of the child. According to the new Article 1776-A, an agreement on the exercise of parental authority is submitted to the prosecutor at the first-instance tribunal, who shall assess it within 30 days. In case the prosecutor considers that the agreement respects the best interest of the child, it is sent to the General Register Office for homologation. If, on the contrary, the prosecutor considers that the agreement does not sufficiently respect the best interest of the child, the parents have the possibility to change it according to the prosecutor’s assessment or to present a new agreement, which will be again submitted to the prosecutor. In case the parents do not take into account

the assessment of the prosecutor, the latter will send the agreement to the court for a decision by a judge.

Articles 249 (Abduction of minors) and 250 (Maintenance obligation) of the Criminal Code have also been amended. Article 249 provides that child abduction or reiterated and unjustified refusal to abide by agreements regulating the exercise of parental authority is punishable by up to two years’ imprisonment or by a up to 240 day-fine. As regards failure to comply with the agreement, the penalty is softened when the parent’s behaviour is motivated by the wish to respect the child’s will, when the child is over 12 years of age.

c) Other measures:

The Portuguese authorities indicated that the Institute for Social Security has been vested with competences concerning parental authority. The Institute is carrying out activities addressed to all professionals co­ operating with courts in civil tutelary matters aimed at improving their intervention in the field. Moreover, in

2008, 24 training activities on Mediation and conflict management and the Evaluation of parental competences took place. In 2009, the Institute for Social Security carried out 13 training activities on the new law 61/2008. Furthermore, another 13 training activities concerning "Interview Techniques in cases of parental conflict", as well as two workshops on "positive parental relations" took place.

IV - CONCLUSION

The Portuguese Authorities consider that no other individual measure is required in these cases, that the general measures adopted will prevent similar violations and that Portugal has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1]

Adoptée par le Comité des Ministres le 26 septembre 2012 lors de la 1150e réunion des Délégués des Ministres.

[2]

Uniquement en anglais