Communicated on 30 May 2018

FOURTH SECTION

Application no. 78108/14 Ricardo PAIXÃO MOREIRA SÁ FERNANDES against Portugal lodged on 5 December 2014

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s conviction by the Lisbon Court of Appeal for unauthorised recording of conversations, after he had been acquitted in first instance court.

It also concerns another decision of the Lisbon Court of Appeal confirming the penalty which had been applied to the applicant by the trial court at a subsequent stage of the proceedings.

It raises issues under Articles 6 § 1 and 8 of the Convention.

QUESTIONS tO THE PARTIES

1. Did the applicant have a fair trial in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?

In particular:

( a) Was the applicant ’ s conviction of 26 April 2012 by the Lisbon Court of Appeal, after acquittal by the first instance court, compatible with the requirements of fairness of proceedings within the meaning of Article 6 § 1 of the Convention, considering that the conviction was based on the reconsideration of the facts established by the first instance court without direct examination of the evidence by the court of appeal (see Igual Coll v. Spain, no. 37496/04, §§ 27, 35-37, 10 March 2009; Lacadena Calero v. Spain, no. 23002/07, §§ 46-49, 22 November 2011; and Găitănaru v. Romania, no. 26082/05, § 24, 26 June 2012)?

( b) Was the Lisbon Court of Appeal impartial as required by Article 6 § 1 of the Convention? In particular, was the formation of the Lisbon Court of Appeal which decided the appeal concerning the penalty impartial, taking into account that the same formation had already convicted the applicant on a previous appeal and also taking into consideration the statements made to the press on 2 May 2012 by one of its judges (see mutatis mutandis Saraiva de Carvalho v. Portugal, no. 15651/89, § 35, 22 April 1194, see also Lavents v. Latvia, no. 58442/00, §§ 117-119, 28 November 2002; Gómez de Liaño y Botella v. Spain, no. 21369/04, §§ 67-72, 22 July 2008; and Morice v. France, no. 29369/10, §§ 81-91, 23 April 2015)?

2. Did the conviction of the applicant for unauthorised recording of conversations interfere with his right to respect for his private life, contrary to Article 8 of the Convention? Was the interference with the applicant ’ s rights under Article 8 in accordance with the law and was the measure necessary in a democratic society in order to achieve the aim or aims concerned? In particular, did the domestic courts carry out a proportionality analysis of the concrete circumstances of the case, striking a fair balance between the different interests at stake (see, mutatis mutandis, Guja v. Moldova [GC], §§74-78, no. 14277/04, 12 February 2008 and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC] no. 17224/11, § 88, 27 June 2017)?