741
21.12.1999

Press release issued by the Registrar

JUDGMENT IN THE CASE OF SALGUEIRO DA SILVA MOUTA v. PORTUGAL

In a judgment[fn] delivered at Strasbourg on 21 December 1999 in the case of Salgueiro da Silva Mouta v. Portugal, the European Court of Human Rights held unanimously that there had been a violation of Article 8 (right to respect for private and family life) taken together with Article 14 (prohibition of discrimination) of the European Convention on Human Rights, and that it was unnecessary to rule on the complaints made under Article 8 taken alone. Under Article 41 (just satisfaction) of the Convention, the Court held that the judgment constituted of itself sufficient just satisfaction for the damage alleged by the applicant; it awarded him 1,800,000 Portuguese escudos (PTE) for costs and PTE 350,000 for expenses.

1. Principal facts

The applicant, João Manuel Salgueiro da Silva Mouta, a Portuguese national, was born in 1961 and lives in Queluz (Portugal).

He was prevented by his ex-wife from visiting his daughter M., in breach of an agreement reached at the time of their divorce. He sought an order giving him parental responsibility for the child, which was granted by the Lisbon Family Affairs Court in 1994. M. lived with the applicant until 1995 when, he alleges, she was abducted by her mother. On appeal, the mother was given parental responsibility whereas the applicant was granted a contact order which, he maintained, he was unable to exercise. The Lisbon Court of Appeal gave two reasons in its judgment for granting parental responsibility for M. to her mother, namely the interest of the child and the fact that the applicant was a homosexual and living with another man.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 12 February 1996.

The case was transmitted to the Court on 1 November 1998 under the transitional provisions of Protocol No. 11 to the Convention and declared admissible on 1 December 1998. A hearing was held on 28 September 1999 in private.

Judgment was given by a Chamber of seven judges, composed as follows:

Matti Pellonpää (Finnish), President,
Georg Ress (German),
Antonio Pastor Ridruejo (Spanish),
Lucius Caflisch (Swiss),
Jerzy Makarczyk (Polish),
Ireneu Cabral Barreto (Portuguese),
Nina Vajic (Croatian), Judges,

and also Vincent Berger, Section Registrar.

3. Summary of the judgment

Complaints

The applicant complained of an unjustified interference with his right to respect for his private and family life, as guaranteed by Article 8 of the Convention and discrimination contrary to Article 14 of the Convention. He maintained, too, that contrary to Article 8 he had been forced by the court of appeal to hide his homosexuality when seeing his daughter.

Decision of the Court

Article 8 taken together with Article 14 of the Convention

The Court noted at the outset that under the case-law of the Convention institutions Article 8 applied to decisions concerning granting parental responsibility for a child to one of the parents on a divorce or separation. The judgment of the Lisbon Court of Appeal constituted an interference with the applicant’s right to respect for his family life in that it had reversed the judgment of the Lisbon Family Affairs Court granting parental responsibility to the applicant.

The Court went on to observe that although the court of appeal had considered the interest of the child in deciding to reverse the judgment of the Lisbon Family Affairs Court and, consequently, to grant parental responsibility to the mother rather than the father, it had had regard to a new factor, namely the fact that the applicant was a homosexual and living with another man. There had therefore been a difference in treatment between the applicant and M.’s mother based on the applicant’s sexual orientation, a notion that fell within Article 14 of the Convention. Such a difference in treatment was discriminatory under that provision if it had no objective or reasonable justification, that is if it did not pursue a legitimate aim or if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The court of appeal had pursued a legitimate aim in reaching its decision, namely the protection of the child’s health and rights. In order to decide whether there was no reasonable basis for the decision that was finally made, the Court examined whether the new factor taken into account by the Lisbon Court of Appeal – the applicant’s homosexuality – was a mere obiter dictum with no direct impact on the final decision, or whether, on the contrary, it was a decisive factor. To that end, the Court reviewed the Lisbon Court of Appeal’s judgment and noted that after finding that there were no sufficient reasons for depriving the mother of parental responsibility – which the parents had agreed she should exercise – it had gone on to say: "... even if that had not so, we consider that the mother should be granted custody of the child". In so doing the court of appeal had noted that the applicant was a homosexual and living with another man and had stated: "the child must live in ... a traditional Portuguese family" and "it is unnecessary to examine whether or not homosexuality is an illness or a sexual orientation towards people of the same sex. Either way, it is an abnormality and children must not grow up in the shadow of abnormal situations".

The Court was of the view that those passages from the judgment of the Lisbon Court of Appeal were not simply clumsy or unfortunate, or mere obiter dicta; they suggested that the applicant’s homosexuality had been decisive in the final decision and thus amounted to a distinction dictated by factors relating to the applicant’s sexual orientation that it was not permissible to draw under the Convention. That conclusion was supported by the fact that, when ruling on the applicant’s contact rights, the court of appeal had discouraged the applicant from behaving during visits in a way that would make the child aware that he was living with another man "as if they were spouses".

The Court therefore held that there had been a violation of Article 8 taken together with Article 14.

Article 8 of the Convention taken alone

The Court held that it was unnecessary to rule on the alleged violation of Article 8 taken alone as the case made out on that point was, in substance, the same as that considered under Article 8 taken together with Article 14.

Article 41 of the Convention

The applicant had sought "just reparation" but had failed to quantify his claim. In the circumstances, the Court held that the finding of a violation in the judgment was of itself sufficient just satisfaction for the alleged damage.

However, it awarded the applicant PTE 2,150,000 for costs and expenses.

The Court’s judgments are accessible on its Internet site (http://www.dhcour.coe.fr).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[fn] This judgment is not final. Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.