Published on 8 April 2024
FOURTH SECTION
Application no. 23695/21
Ricardo Jorge GUIMARÃES BARROS GOMES
against Portugal
lodged on 30 April 2021
communicated on 20 March 2024
SUBJECT MATTER OF THE CASE
The application concerns criminal proceedings brought against the applicant for domestic violence against his ex-wife.
On 18 August 2020, ruling in a single judge composition, the Arcos de Valdevez Criminal Court sentenced the applicant to a two-year prison sentence, which was suspended for an equal period of time, subject to the condition that the applicant would refrain from contacting his ex-wife through any means, except for those necessary to fulfil his parental responsibilities towards his daughter who was a minor. It also ordered the applicant to pay his ex-wife a compensation of 500 Euros.
On 11 January 2021, the Guimarães Court of Appeal reduced the prison sentence to one year and eight months and suspended its execution for an equal period of time, revoking the condition for the suspension. It further upheld the compensation the applicant had been ordered to pay to his ex-wife.
Relying on Article 6 § 1 the applicant complains of the unfairness of the proceeding before the Arcos de Valdevez Court. He claims that the trial judge was not impartial in that she had intervened as an investigating judge when the victim was heard during the investigation of the case aimed at collecting declarations for future use (declarações para memória futura) in accordance with Article 294 of the Code of Criminal Procedure.
Relying on Article 6 § 2 of the Convention, the applicant also complains of a violation of his right to presumption of innocence. He states that someone, either the Prosecutor, or the trial judge, called him “cheater” (aldrabão) while he was being heard before the Arcos de Valdevez Criminal Court. To sustain this claim, he refers to the extract of the hearing record at 56 minutes and 56 seconds.
QUESTIONS TO THE PARTIES
1. In respect of the alleged lack of impartiality of the judge of the Arcos de Valdevez Court, has the applicant exhausted all domestic as required by Article 35 § 1 of the Convention given that he did not ask the judge to recuse herself (see Craxi 2 v. Italy, (dec.), no. 34896/97, 11 October 2001; Smailagić v. Croatia (dec.), no. 77707/13, §§ 34 and 36, 10 November 2015; and Sigríður Elín Sigfúsdóttir v. Iceland, no. 41382/17, § 35, 25 February 2020)?
2. In the affirmative, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?
In particular:
2.1. Was the single judge of the Arcos de Valdevez Court impartial, from the point of view of the external observer (“objective test”), since she had allegedly taken declarations from the victim (declarações para memória futura) during the investigation of the case (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 145-150, 6 November 2018; Micallef v. Malta [GC], no. 17056/06, §§ 93-98, ECHR 2009; and Mežnarić v. Croatia, no. 71615/01, §§ 31-33,15 July 2005)?
2.2. Assuming that it was the trial judge who called the applicant “cheater” while he was being heard, did her conduct give rise to legitimate fears she lacked impartiality from the matter of her personal conviction (“subjective test”) (see, Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII; De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86; Remli v. France, 23 April 1996, § 48, Reports of Judgments and Decisions 1996-II; Vardanyan and Nanushyan v. Armenia, no. 8001/07, §§ 75 and 82, 27 October 2016; and Danilov v. Russia, no. 88/05, § 100, 1 December 2020)?
The Government is requested to provide the minutes of the declarations for future use (declarações para memória futura) made by the victim before the investigating judge.