Case Law Database
Agostinho v. Portugal
| Date of Application: | Wed, 02 Sep 2020 |
|---|---|
| Date of Decision: | Tue, 09 Apr 2024 |
| Decision Making Body: | European Court of Human Rights (Grand Chamber) |
| Law Applied: | European Convention on Human Rights |
| Keywords: | Right to life, Right to privacy, Right to equality, Domestic remedies, Jurisdiction |
Agostinho et. al., v. Portugal et. al. Application number 29271/20 (ECHR, 9 April 2024)
At Issue: Whether 33 countries had violated children and youth's human rights for failing to take sufficient action on climate change.
Summary: On September 2, 2020, six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change and seeks an order requiring them to take more ambitious action.
The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination. The complainants claim that their right to life is threatened by the effects of climate change in Portugal such as forest fires; that their right to privacy includes their physical and mental wellbeing, which is threatened by heatwaves that force them to spend more time indoors; and that as young people, they stand to experience the worst effects of climate change.
The case is brought against the Member States of the Council of Europe (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain and Sweden) as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The complainants allege that the respondents have fallen short of their human rights obligations by failing to agree to emissions reductions that will keep temperature rise to 1.5 degrees Celsius, as envisioned by the Paris Agreement.
On November 30, 2020, The European Court of Human Rights fast-tracked and communicated the case to 33 defendant countries, requiring them to respond by the end of February 2021. According to the Global Legal Action Network (GLAN), who are supporting the case, only a tiny minority of cases before the Court are fast-tracked and communicated.
On February 4, 2021, the Court rejected a motion by the defendant governments asking the Court to overturn its fast-tracking decision. The governments had asked the court to overturn priority treatment of the case and to hear arguments only on the admissibility of the case. The Court sent a letter to the parties rejecting these motions and gave the defendants until May 27, 2021 to submit a defense on both admissibility and the merits of the case.
The Court also granted until May 6, 2021 third party interventions. Among other seven third-party intervention, on May 5, 2021, Amnesty International intervened in the case and submitted her written observations to the European Court of Human Rights. The submission supports the claimants' position, providing legal arguments to the Court to show that international law requires states to not harm, and to not allow companies within their jurisdiction to harm, the human rights of people outside their borders.
On May 19, 2021 a new intervention was made by the European Commission submitted her written observations to the European Court of Human Rights. Noting the pronounced impact of environmental degradation and climate change on human rights, the Commissioner argues that international environmental and children’s rights law instruments should play a significant role in defining the scope of states’ obligation to prevent human rights violations caused by environmental harm. The Commission bases its defense of EU policy in the field of environmental protection on sound legal reasoning and science-based evidence. The term ‘climate emergency’ expresses the political will to fulfill the obligations under the Paris Agreement. The Commissioner concludes that “the increasing number of climate change-related applications provide the Court with a unique opportunity to continue to forge the legal path towards a more complete implementation of the Convention and to offer real-life protection to individuals affected by environmental degradation and climate change.”
On August 14, 2021, the claimants received the respondent governments’ respective defenses. However, on legal advice, the claimants have decided not to make them public. The claimants have until January 12, 2022 to respond to the governments’ defenses.
On June 30, 2022, the Chamber of the European Court of Human Rights relinquished jurisdiction in favor of the Grand Chamber. The case is now going to be examined by the ECtHR's Grand Chamber of 17 judges on account of the fact that the case raises a serious question affecting the interpretation of the Convention (Art 30 ECHR). The Court held a hearing in September 2023.
On April 9, 2024, the European Court declared the application inadmissible. With respect to extraterritorial jurisdiction, the Court found no grounds to expand the judicial application as requested by the applicants. Territorial jurisdiction was therefore only established in respect of Portugal, and the complaint was declared inadmissible against other respondent States. Nonetheless, because the applicants had failed to exhaust domestic remedies in Portugal, the complaint against Portugal was also deemed inadmissible.
Summary provided courtesy of the Sabin Centre
Court documents:
Complaint (2 September 2020)
Decision (9 April 2024)
Related CRC articles
- 2. Right to non-discrimination (CRC Article 2)
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
- 6. Right to life, survival and development (CRC Article 6)
- 16. Right to privacy, family, home, communications and reputation (CRC Article 16)
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination.
Decision par 147 “The intervener (Save the Children) submitted that children were the most vulnerable group in any crisis, including climate change. Given the gravity of the impact of climate change on children, and the significance of their rights engaged, the Court should not apply an excessively exacting standard to issues such as admissibility or burden and standard of proof. The best interests of children and their substantive and procedural rights should be pre-eminent in decision making policy. A failure to ensure this would be in violation of international law, including the Convention. The need to safeguard children’s rights was immediate and extensive, given the systemic nature of the threat posed by climate change and its wide-ranging negative impacts on the most vulnerable.
Cited CRC articles
- 3. Right to have child’s/children’s best interests taken as primary consideration in all matters affecting them (CRC Article 3)
- 43. Procedural CRC provisions (CRC Articles 43-54)
- CRC Optional Protocols
The complaint refers directly to Article 3(1) that “best interests of the child” must be “a primary consideration”. It also refers to the General measures of implementation of the Convention on the Rights of the Child (CRC/GC/2003/5), § 24.)
The decision refers to the Sacchi case and the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
Involvement of children in hearings
- Written presentation
The applications contains details of the children’s circumstances. The children also submitted personal statements to the court.
Intergenerational rights
Complaint para 8 “The Court’s assessment of these risks (as per submissions in the Application Form, para.28), must be undertaken bearing in mind the precautionary principle, the concept of intergenerational equity, and the requirement (under Article 3(1) of the UN Convention on the Rights of the Child) that the “best interests of the child” must be “a primary consideration”.
Decision para 142 “The European Commission, on behalf of the European Union, elaborated on the principles that govern the implementation, at European Union level, of its obligations under the Paris Agreement. EU climate policy and the current legislative framework, as well as the development of the EU acquis, were in compliance with the EU’s obligations under the Paris Agreement and even went beyond those obligations, while fully respecting the precautionary principle and the principle of intergenerational equity. The level of protection of human rights in the environmental domain in the European Union was equivalent to that of the Convention.”
Future generations
Decision para 155 “The intervener submitted that there was an international consensus as to the existence of adverse effects of climate change on human rights, which the Court should take into account in its examination of the present case. Climate change most gravely affected people in developing countries and children, and it would affect future generations.”
Outcome of decision for the applicants
- Relief sought by applicants NOT granted
The case was dismissed against all states except Portugal for lack of jurisdiction.
In the case of Portugal, the case was dismissed because the applicants had not exhausted local remedies.
Did outcome of decision develop the law
- Yes
This case, together with the KlimaSeniorinnen v Switzerland case, are the first climate related cases based on human rights to be heard by the European Court. The case confirms that if ruled admissible, the Court will consider climate cases under the European Convention on Human Rights.
Involvement of NGO/law firm in application
Global Legal Action Network (GLAN)
Available information on how children got involved in the litigation
Age range of litigants
- 8-12
- 13-17
- 18-25
Number of children or youth involved
6