The Court intervenes on the substance of the criminal case. Non-examination of evidence, insufficient reasoning and lack of impartiality: Unfair trial
Paixão Moreira Sá Fernandes v. Portugal 25.2.2020 (no. 78108/14)
The case concerned the applicant’s conviction for recording a conversation with a businessman who
was offering him money to ensure that his brother, a Lisbon City Councillor, would withdraw his
opposition to a contract that the businessman wished to conclude with the City Council.
The Court found that the applicant had not had the benefit of fair proceedings as the court of
appeal, which had convicted the applicant for the first time at second instance, had not adduced the
evidence directly. The Court also noted omissions which meant that the court of appeal’s reasoning
was flawed. Lastly, it noted a lack of impartiality on the court of appeal’s part when ruling, at second
instance, on the fine imposed on the applicant.
The applicant, Ricardo Paixão Moreira Sá Fernandes, is a Portuguese national who was born in 1954
and lives in Lisbon (Portugal). He is a lawyer.
In January 2006 the applicant was contacted by a businessman, manager of a property investment
firm, in order to discuss an issue of common interest. The two men met a few days later and, during
the conversation, the businessman offered the applicant a sum of money to persuade his brother, a
member of the Lisbon City Council, to withdraw his opposition to a contract concluded by the
businessman with the City Council. The applicant secretly recorded this conversation and transferred
the recording to the police authorities, with whom he subsequently collaborated as an undercover
agent in the criminal investigation opened in respect of the businessman. The two men later met
again on several occasions to discuss the arrangements for the agreement to end his brother’s
opposition to the contested contract, and the meetings were then stopped.
In February 2006 the businessman was placed under investigation for bribery. In 2012 the Supreme
Court sentenced him to five months’ imprisonment, suspended in return for payment of
200,000 euros (EUR) to the State Treasury.
In the meantime, the businessman lodged a complaint against the applicant for recording their first
meeting unlawfully. In 2011 the Lisbon prosecutor’s office opened an investigation and subsequently
charged the applicant with making an unlawful recording. The applicant was acquitted at first
instance by the Lisbon Court. However, he was convicted on 26 April 2012 by the court of appeal,
sitting as a three-judge bench. The case was then sent back to the Lisbon Court for sentencing. The
applicant was ordered to pay a fine of EUR 1,200. He lodged an appeal.
In June 2014 the same bench at the court of appeal which had delivered the judgment of 26 April
2012 dismissed the applicant’s appeal against his sentence and held that a heavier penalty was
called for. The applicant was ordered to pay a fine of EUR 4,800 for making an unlawful recording.
THE DECISION OF THE COURT…
Article 6 § 1 (right to a fair trial)
1. The Court noted that the court of appeal had convicted the applicant, for the first time, at
second instance without assessing the evidence directly.
At first instance, the Lisbon Court had held a hearing at which the applicant and several witnesses
were heard. The applicant had then been acquitted as the Lisbon Court had found that it could not
be proved that he had been aware that his act was illegal and also that he had acted from necessity
(Article 34 of the Criminal Code), which removed any unlawful element from the recording.
At second instance, the court of appeal had reassessed the facts and the law. It had then departed
from the factual findings, considering it to be established that the applicant had acted in the
knowledge that his action was prohibited by law. However, the court of appeal had not questioned
any witnesses, or even the applicant. As a consequence, the applicant had been unable to present
his defence as to whether he had acted from necessity and, more specifically, whether he had
known that his action was prohibited by law.
The Court considered that the court of appeal ought to have adduced directly all of the evidence
that had resulted in the Lisbon Court’s acquittal of the applicant or it ought to have heard the
applicant in person. The applicant had thus not benefited from a fair trial before the court of appeal
and there had been a violation of Article 6 § 1 of the Convention.
2. The Court noted that the reasoning followed by the court of appeal in ruling on the applicant’s
guilt had been flawed.
Firstly, the court of appeal had held that the applicant had acted in the knowledge that his action
was prohibited by law. However, it had failed to adduce the evidence directly.
Secondly, the court of appeal had held that the applicant had not acted from necessity. However, it
had not addressed the applicant’s contribution to the businessman’s conviction for corruption or the
general interest in combatting this problem. Nor had it made any comment with regard to the
businessman’s reprehensible conduct.
However, those factors had played a part in the Lisbon Court’s analysis of whether there existed a
justification of necessity. The Lisbon Court had held, among other points, that the businessman
could not claim that his rights had precedence over those of the applicant, given that his conduct
had been contrary to ethics and the legal order considered as a whole. The court of appeal ought
therefore to have examined the circumstances ruling out unlawfulness, in particular the legitimate
aim pursued, namely the fight against corruption. By omitting to do so, it had not responded to an
important argument raised by the applicant throughout the proceedings in his defence.
Furthermore, the contested recording had been joined to the criminal proceedings brought against
the businessman and had been taken into consideration in the assessment of the events. This factual
element had clearly been omitted from the legal assessment of the facts carried out by the court of
appeal, which had not therefore analysed the legal situation taken as a whole.
The Court noted that there had therefore been omissions which meant that the court of appeal’s
reasoning was flawed. There had thus been a violation of Article 6 § 1 of the Convention.
3. The Court noted a lack of impartiality on the part of the court of appeal when ruling, at second
instance, on the penalty (a fine) imposed on the applicant.
The Court found that the applicant’s concerns about the lack of impartiality of two of the judges who
had ruled on his sentence had been objectively justified.
It noted, among other points, that following criticisms expressed by the applicant in the press or in
his appeal pleadings with regard to the judgment of 26 April 2012 convicting him, a certain animosity
may have been aroused between him and these two judges. Indeed, both of them had raised the
possibility of bringing disciplinary proceedings against the applicant on account of the accusations he
had made against them.
In addition, the applicant had not been informed that his appeal against the fine had been assigned
to the same bench that had ruled on the merits of the first appeal. He had thus been unable to raise
his concerns in the context of a request for their withdrawal. It followed that there had been a
violation of Article 6 § 1 of the Convention.
Just satisfaction (Article 41)
The Court held that Portugal was to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary
damage and EUR 1,632 in respect of costs and expenses.