Judgment Salvador Coutinho dos Santos Amado v. Portugal - Fairness of proceedings concerning challenge to performance appraisal

issued by the Registrar of the Court   ECHR 030 (2026)   03.02.2026   Right to a fair trial upheld for judge who challenged performance appraisal   before Supreme Court   The case of Salvador Coutinho dos Santos Amado v. Portugal (application no. 44794/19) concerned an   appraisal of the applicant by the High Council of the Judiciary (Conselho Superior da Magistratura –   CSM), in which his performance was rated as “poor”. As a result, disciplinary proceedings were   automatically opened against him, pending the completion of which he was temporarily suspended   from his duties as a judge.   In its Chamber judgment1 the European Court of Human Rights held, unanimously, that there had   been no violation of Article 6 (right to a fair hearing) of the European Convention on Human Rights.   The Court noted that the complaints raised before it concerned only the applicant’s appraisal and not   the disciplinary proceedings. The “civil” aspect of Article 6 was applicable in the case, since the   applicant’s rating had had tangible consequences on the performance of his duties as a judge.   The Court then found that the Supreme Court’s assessment did not appear to have been arbitrary or   manifestly unreasonable, and had duly contained reasons. The applicant had thus been afforded a   judicial review of sufficient scope, and the proceedings before the Supreme Court had been conducted   as a whole in compliance with his right to a fair hearing.   Principal facts   The applicant, a Portuguese national, had been a judge since 2006. In 2018, following an appraisal,   the CSM rated his performance as “poor” and temporarily suspended him from his duties pending the   completion of automatic disciplinary proceedings.   On the basis of the appraisal report by the judicial inspector, J.G., the CSM reproached the applicant,   among other things, for absenteeism between 2013 and 2017 and for low productivity. It considered,   in particular, that his repeated absences had tarnished the image of his court and caused hearings to   be adjourned after witnesses and lawyers had already been summoned. It further found that the   applicant’s productivity was low despite the court having only a reasonable number of pending cases.   The applicant challenged the decision before the Supreme Court, submitting that his “poor” rating   was not in line with his performance. He argued that the reason for many of his delays was that he   had taken on extra duties to assist a fellow judge, and that conditions within the court were not as   favourable as J.G. suggested in his report. The Supreme Court dismissed his action in 2019.   Subsequently, following the disciplinary proceedings, the CSM imposed a 180-day suspension on the   applicant, finding that he had failed to uphold his duties to pursue the public interest and to work   diligently.   The applicant did not indicate whether he had appealed against that decision.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any   party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers   whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the   referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   Complaints, procedure and composition of the Court   Relying on Article 6 (right to a fair hearing), the applicant complained that the CSM had lacked   independence and that the Supreme Court proceedings had been unfair.   The application was lodged with the European Court of Human Rights on 14 August 2019.   Judgment was given by a Chamber of seven judges, composed as follows:   Lado Chanturia (Georgia), President,   Faris Vehabović (Bosnia and Herzegovina),   Lorraine Schembri Orland (Malta),   Anja Seibert-Fohr (Germany),   Ana Maria Guerra Martins (Portugal),   Anne Louise Bormann (Denmark),   András Jakab (Austria),   and also Simeon Petrovski, Deputy Section Registrar.   Decision of the Court   Article 6   Regarding whether Article 6 of the Convention applied, the Court noted that the complaints before   it concerned only the ordinary appraisal procedure carried out by the CSM-appointed judicial   inspector, J.G., to assess the applicant’s job performance. They did not relate to the disciplinary   proceedings.   The appraisal had not immediately called into question the applicant’s right to perform his duties as a   judge. It could, however, have had consequences not only on his career advancement but also on his   ability to change posts.   Furthermore, at the time of the events, a “poor” performance rating automatically triggered a judge’s   temporary suspension and the opening of proceedings to determine whether he or she was unfit for   office. While the temporary suspension did not amount to a sanction, it was nevertheless a   precautionary measure with legal force. In the case at hand, the performance rating had indeed had   tangible consequences on the applicant’s performance of his duties as a judge.   In addition, the applicant’s right to perform those duties, as recognised under domestic law, was   accompanied by a fair, legal appraisal procedure, whose conduct was governed by specific statutory   rules. Moreover, the first condition laid down in the judgment in Vilho Eskelinen and Others v. Finland2   had not been fulfilled, since the national law did not exclude access to a court for judges and allowed   them to challenge CSM decisions before the Supreme Court.   It followed that Article 6 applied to the case in its civil aspect.   Turning to the Supreme Court proceedings, the Court saw no reason to call into question the manner   in which the Supreme Court had distributed the burden of proof with regard to the issues raised by   the applicant. As asserted by the domestic authorities, there had been nothing to prevent the   applicant himself from producing the additional evidence he had demanded.   As regards the absence of a public hearing, the CSM had based its findings of the applicant’s low   productivity and absenteeism on statistics and output analyses included in the appraisal report by the   judicial inspector J.G. Neither the applicant’s nor the witnesses’ credibility had been at issue. In light   of the questions submitted for its review, the Court accepted that the Supreme Court had thus had a   2. Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, § 62, ECHR 2007-II).   2 complete case file before it. In addition, the applicant had been interviewed twice as part of the   appraisal procedure. There was therefore no reason for the Supreme Court to order a hearing of its   own motion. Moreover, the applicant had not requested a hearing, despite having that option.   Accordingly, it could reasonably be considered that he had waived his right to a public hearing before   that court.   As to whether the scope of the Supreme Court’s review had been sufficient, the Supreme Court had   taken note of the evidence on which the applicant’s performance had been assessed overall. It had   also observed that a sanction had previously been imposed on him for absenteeism, concluding that   his rating could not therefore be regarded as disproportionate. While represented by a lawyer before   the Supreme Court, the applicant had been able to present his arguments in the context of a fair   hearing, producing his evidence under the same conditions as the CSM.   The Court therefore found that the Supreme Court’s assessment did not appear to have been arbitrary   or manifestly unreasonable, and had duly contained reasons. The applicant had thus been afforded a   judicial review of sufficient scope with regard to the questions raised before the Supreme Court. In   consequence, the proceedings before the Supreme Court had been conducted as a whole in   compliance with the applicant’s right to a fair hearing. It followed that there had been no violation   of Article 6 § 1 of the Convention.   The judgment is available only in French.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int.   Follow the Court on Bluesky @echr.coe.int, X ECHR_CEDH, LinkedIn, and YouTube.   Contact ECHRPress to subscribe to the press-release mailing list.   Where can the Court’s press releases be found? 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