FOURTH SECTION

DECISION

Application no. 26022/20 Maria Alexandra MARTINS FERREIRA PINTO BASTO against Portugal

The European Court of Human Rights (Fourth Section), sitting on 30 May 2023 as a Committee composed of:

Armen Harutyunyan , President , Anja Seibert-Fohr, Ana Maria Guerra Martins , judges , and Crina Kaufman, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 26022/20) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 June 2020 by a Portuguese national, Ms Maria Alexandra Martins Ferreira Pinto Basto (“the applicant”), who was born in 1967, lives in Braga and was represented by Mr P. Mendes Ferreira, a lawyer practising in Porto;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the dismissal of a criminal complaint, together with a civil claim, lodged by the applicant, who intervened in the proceedings as auxiliary prosecutor ( assistente – assisting the public prosecutor) and as civil party, against her former partner, A., who was a judge, for sending humiliating and threatening text messages to her mobile telephone.

2. On 17 September 2018 the Court of Appeal of Guimarães, hearing the case as a first-instance court on account of the defendant’s status as a judge, convicted A. under Article 152 § 1 of the Penal Code for an act of domestic violence committed against the applicant. He was sentenced to one year and six months’ imprisonment, execution of which was suspended for the same period. He was also ordered to pay 7,500 euros to the applicant for the non ‑ pecuniary damage she had sustained. The Court of Appeal found that the messages that A. had sent to the applicant were aimed at threatening and humiliating her.

3 . On 30 October 2019 the Supreme Court, sitting as a bench of two judges, upheld the appeal that had been lodged by A. and acquitted him. In its reasoning, the Supreme Court found that the applicant herself had also sent offensive messages to A. and, as such, the latter’s messages did not fall within the scope of psychological ill-treatment, since they habitually conversed with each other in that manner. Furthermore, the Supreme Court also took into consideration the fact that the applicant had even maintained contact with A. after their separation, making use of his legal expertise for some civil proceedings that she was involved in at the time.

4 . The applicant lodged a plea of nullity against the Supreme Court’s decision, arguing that its findings had been contradictory. On 27 November 2019 the same bench of two judges of the Supreme Court dismissed her plea.

5. The applicant lodged a further request with the President of the Supreme Court, arguing that the nullity plea should have been decided by a three-judge bench, comprising the two judges who had ruled on the case and the president of the relevant division, in accordance with Article 666 of the Code of Civil Procedure and Article 419 of the Code of Criminal Procedure. On 19 December 2019 the Vice-President of the Supreme Court determined that the President of that court did not have jurisdiction to decide on a plea of nullity in relation to a ruling of the Supreme Court.

6. Relying on Article 6 § 1 of the Convention, the applicant alleged a breach of her right to fair proceedings, arguing that the above ‑ mentioned plea of nullity in respect of the acquittal should have been decided with a third judge on the bench, namely the president of the relevant division of the Supreme Court. She alleged that that situation also amounted to a breach of her right to an effective remedy within the meaning of Article 13 of the Convention.

7. Relying on Article 14 of the Convention, the applicant alleged that the Supreme Court had treated A., as a man and as a judge, more favourably and had discriminated against her as a woman. She complained in particular that the Supreme Court had ignored the fact that the text messages from A. had been sent to her after their separation with the aim of humiliating and offending her, while her own text messages to him had been sent at the beginning of their relationship.

THE COURT’S ASSESSMENT

8. Relying on Article 6 § 1 and Article 13 of the Convention, the applicant complained about the composition of the bench of the Supreme Court which had decided on the plea of nullity against the acquittal decision (see paragraphs 4 ‑ 5 above). The Court will assess this complaint solely under Article 6 § 1, which is lex specialis in relation to Article 13 (see Baka v. Hungary [GC], no. 20261/12, § 181, 23 June 2016).

9. The Court notes that in the criminal proceedings at issue, the applicant intervened as an assistente and as a civil party. It thus considers that Article 6 § 1 of the Convention, in its civil limb, is applicable to the instant case (see Antunes Rocha v. Portugal , no. 64330/01, § 43, 31 May 2005; Monteiro da Cruz v. Portugal , no. 14886/03, §§ 25-26, 17 January 2006; and Feliciano Bichão v. Portugal , no. 40225/04, §§ 31-33, 20 November 2007; and contrast Garimpo v. Portugal , no. 66752/01, 10 June 2004).

10. As to the merits of the complaint, it is noted that the applicant has not raised any particular or specific reasons to justify suspicion about the bench of the Supreme Court or any of its members, but rather has only challenged the correctness of its composition under the domestic law.

11. The Court recalls that a violation by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1. The Court may therefore examine whether the domestic law has been complied with in this respect. Having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court may not question their interpretation unless there has been a flagrant violation of domestic law (see Pasquini v. San Marino , no. 50956/16, §§ 104 and 109, 2 May 2019; Biagioli v. San Marino (dec.), no. 8162/13, § 75, 8 July 2014; and DMD Group, A.S. v. Slovakia , no. 19334/03, § 61, 5 October 2010).

12. Before the Court, the applicant has argued that the plea of nullity should have been decided with the additional intervention of a third judge in the decision, in accordance with Article 666 of the Code of Civil Procedure and Article 419 of the Code of Criminal Procedure (see paragraph 4 above). The Court notes however, that since the proceedings were of a criminal nature, the Code of Civil Procedure was only applicable if the Code of Criminal Procedure had no relevant provision, as unequivocally established by Article 4 of the latter. Furthermore, Article 419 of the Code of Criminal Procedure provides that the intervention of a bench of three judges is only required in cases of appeals against a summary decision rendered by a single judge, or a decision which does not rule on the merits of the case or in the situations where a hearing had not been requested and the reassessment of the facts is not required. It thus does not appear that a plea of nullity in criminal proceedings, such as the one in the current case, required the intervention of a bench of three judges. Therefore, in the Court’s view there is no indication, in the instant case, of any flagrant violation of the domestic law in respect of the composition of the bench of judges that delivered the decision of 27 November 2019 (see paragraph 4 above).

13. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

14. The Court, as the master of the characterisation to be given in law to the facts of any case before it and having regard to the circumstances of the present case, considers that the complaint under Article 14 of the Convention (see paragraph 6 above) falls to be examined under Article 14 taken in conjunction with Article 8 of the Convention (see Emel Boyraz v. Turkey , no. 61960/08, § 33, 2 December 2014) and refers in this respect to the principles established in Carvalho Pinto de Sousa Morais v. Portugal (no. 17484/15, §§ 33-35, 25 July 2017). The Court also reiterates that under Article 8 of the Convention, States have a duty to protect the physical and psychological integrity of an individual from other persons; to that end, they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see Janković v. Croatia , no. 38478/05, § 45, 5 March 2009, and C. v. Romania , no. 47358/20, § 62, 30 August 2022). In particular, the States have a positive obligation to establish and apply effectively a system punishing all forms of domestic violence, including online violence or cyberviolence, and to provide safeguards for victims (see Volodina v. Russia (no. 2) , no. 40419/19, §§ 48 ‑ 49, 14 September 2021).

15. In the instant case, it is noted that in its judgment of 30 October 2019 (see paragraph 3 above) the Supreme Court carried out an assessment of the facts of the case and their legal framework on the basis of the evidence submitted and heard in court, the law and the domestic case-law. The Court discerns no signs of gender, professional or social bias on the part of the Supreme Court (contrast Carvalho Pinto de Sousa Morais , cited above, § 53). More specifically, there is no indication that the acquittal decision was taken on account of, or influenced by, the fact that the applicant was a woman while A. was a man and a judge, nor is there any sign of prejudice or stereotyping (compare Sousa Goucha v. Portugal , no. 70434/12, § 58, 22 March 2016). Having regard to the foregoing, the Court cannot but conclude that the case does not disclose any appearance of discrimination on grounds of sex or social status.

16. Accordingly, the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 June 2023.

Crina Kaufman Armen Harutyunyan Acting Deputy Registrar President