CASE OF AUGUSTO v. FRANCE
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Domestic and Convention proceedings (global)
Christos Rozakis
4. The applicant was born in 1936 and lives in Vouziers. 5. By a decision of 17 May 1996 the occupational counselling and redeployment board (“the COTOREP”) gave the applicant a 50 to 79% disability rating and issued her with a card certifying that she found it difficult to remain in a standing position. 6. On 6 August 1996, the regional health insurance fund (“the CRAM”) for the North-East region rejected the applicant’s request for a retirement pension as of 1 June 1996 on the basis of her incapacity to work, on the ground that she was not at least 50% disabled. 7. On 13 December 1996 the disability claims tribunal upheld the CRAM’s decision. 8. The applicant appealed to the national tribunal for claims relating to disability and level of insurance coverage for accidents at work (“the CNITAAT”), submitting a number of medical certificates attesting to her state of health and relying on the COTOREP’s decision of 17 May 1996. 9. In a decision of 24 November 1997, the CNITAAT upheld the decision of the disability claims tribunal, stating the following reasons: “The rate of disability comprised between 50% and 79% acknowledged for the purposes of issuing the card certifying that it is “difficult to remain in a standing position” is not calculated using the same assessment criteria as the rate applicable in the present case, so this ground of appeal cannot be upheld; The accredited doctor of the national tribunal for claims relating to disability and level of insurance coverage for accidents at work observes the following: ‘The subject shows signs of preexisting injuries: fracture of the 4th sacral vertebra in 1965, fracture of the left kneecap that was pinned and wired in 1990, fracture of the lower right tibia in 1994. No after-effects in the region of the sacrum are mentioned. The left knee is slightly limited in flexion and shows mild gonarthrosis, and there is lateral calcification of the patella. No after-effects in the left ankle are reported. There is arthrosis of the whole spinal column, with degenerative discopathy at L5S1. It is mild arthrosis, not unusual at the subject’s age, with only a slight loss of flexibility of the different segments of the spine. Episodic onsets of sciatica and cervicobrachial neuralgia are reported in the case history. There are no signs of herniated lumbar disk . There is calcifying periarthritis of the left shoulder, but it does not restrict movement. The same applies to the arthrosis at the base of the right thumb.’ He concludes that: ‘On 1 June 1996 the subject was in a fit state to carry on working without seriously jeopardising her health and, considering her physical and mental fitness for work, did not suffer from a permanent incapacity to work of at least 50%’; In the light of the above medical opinion, the documents in the file and the criteria laid down in Articles L. 351-7 and R. 35121 of the Social Security Code, the national tribunal for claims relating to disability and level of insurance coverage for accidents at work decides to uphold the impugned decision ...” 10. The applicant lodged a notice of appeal on points of law on 27 May 1998. In further pleadings her lawyer filed with the Court of Cassation on 23 October 1998, she invoked, inter alia, a violation of “the requirements of the rights of the defence” and of “equality of arms in a fair trial within the meaning of Article 6” of the Convention, in that the report by the CNITAAT’s accredited doctor, drawn up solely on the basis of documents, had not been made available to her or to the doctor she had appointed to submit observations. 11. By a judgment of 2 March 2000 the Employment and Welfare Division of the Court of Cassation dismissed the applicant’s appeal in the following terms: “... on the one hand, the accredited doctor instructed, under the terms of Article R. 14328 of the Social Security Code then in force, to carry out a preliminary review of the case, simply gives an opinion to the national disability tribunal without submitting an expert report for adversarial discussion by the parties; Without laying itself open to the objection raised in the ground of appeal, the national disability tribunal, in the light of the findings of its accredited doctor and having analysed the different evidence adduced, considered, as it was within its exclusive jurisdiction to do, that Ms Augusto’s disability rate – the COTOREP evaluation of which was not binding on it – was less than 50%, and that the applicant was therefore not entitled to a retirement pension on the ground of incapacity to work; For these reasons, the appeal ... is dismissed.” 12. The rules governing the powers, organisation and operation of social security courts and procedure before them are laid down in the Social Security Code. Alongside the general social security claims department there is a “technical claims” department which deals with claims concerning the existence or seriousness of a disability, the rate of permanent disability in the event of an occupational accident or disease and the incapacity to work taken into account by the old-age insurance scheme. Such claims are submitted in the first instance to the disability claims tribunal, and appeals are heard by the CNITAAT, whose decisions are in turn subject to appeal on points of law. 13. Articles L. 143-3, R. 143-15, R. 143-16, R. 143-30 and R. 143-32 of the Social Security Code stipulate that the CNITAAT is composed of sections, each with five members, as follows: - one president, who is a practising or honorary administrative or ordinary court judge and is appointed for an indefinite period by joint decision of the Minister of Justice and the Minister responsible for Social Security or Agriculture (depending on the nature of the case being considered); - two members who are practising or honorary administrative or ordinary court judges or A-grade civil servants from the Ministry responsible for Social Security or for Agriculture, appointed by joint decision of the Minister of Justice and the Minister responsible for Social Security or Agriculture; - two non-presiding judges (assesseurs), one a salaried employee and one an employer or self-employed person, appointed for five years from a list drawn up by the Minister responsible for Social Security or Agriculture, from candidates nominated by the most representative trade organisations concerned. 14. Article R. 143-25 stipulates that upon receipt of the notice of appeal the secretary of the tribunal shall invite the parties to present their written observations, in memorial form, within twenty days, together, where applicable, with those of the doctor they have appointed to assist or represent them. The secretary is also responsible for transmitting the documents to the parties, or to the doctors appointed by them if the documents contain medical information. The parties may then submit further observations in reply within twenty days. 15. The section president appoints a rapporteur for each case from among the members of the section or possibly from a list of people drawn up by order of the Minister responsible for Social Security or Agriculture, as appropriate. Rapporteurs who are not members of the section do not vote (Article R. 143-27). 16. The CNITAAT must have any file submitted to it on appeal examined initially by an accredited doctor, chosen from a list drawn up by order of the Minister responsible for Social Security or Agriculture. It may also consult qualified experts as and when deemed necessary. If it does this, the experts’ reports are communicated to each party, or to the doctors appointed by them if they are medical reports (Articles R. 143-28 and R. 143-29). 17. By virtue of Article R. 143-19 the ministers responsible for Social Security or Agriculture or their representatives “may present written or oral observations” to the court. 18. Under Article R. 143-29 the CNITAAT “shall rule solely on the basis of documents”. No provision of the Social Security Code provides for the communication to the insured party of the report by the rapporteur or the opinion of the qualified doctor, who are appointed by the court under the above-mentioned Articles R. 143-27 and R. 14328. 19. The CNITAAT delivers its judgment at a public hearing (Article R. 14333). 20. The Employment and Welfare Division of the Court of Cassation has ruled that the procedure before the CNITAAT did not infringe the rights of the defence in that it ruled on the basis of documents without informing the parties of the accredited doctor’s opinion (Cass. soc. 10 October 1996, D. 1996, IR 256) and, in eight judgments delivered on the same day in 1998, that the procedure was in conformity with the requirements of Article 6 § 1 of the Convention in respect of both the right to an independent and impartial tribunal – with reference to the composition of the CNITAAT – and the adversarial principle – with regard to medical documents on which it had based its decision and which were not communicated to the parties (Cass. soc. 28 May 1998, Bull. no. 290; RJS 1998, no. 921; JCP E 1998, pan. p. 1123, obs. F. Taquet). The Court of Cassation has also decided that ground relating to the lack of a public hearing before the CNITAAT could not be upheld where it had been invoked before it for the first time as a ground of appeal and the insured party had not requested a public hearing in the pleadings before the CNITAAT (Cass. soc. 15 May 1997, RJS 1997, no. 754). 21. In a judgment of 17 December 1998 (RJS 1999, no. 436), the Employment and Welfare Division of the Court of Cassation found that the disability claims tribunal was not an independant and impartial tribunal within the meaning of Article 6 § 1 of the Convention, as it was chaired by a civil servant answering to a hierarchy linked to the health insurance fund, which was a party to the claim. 22. In his submissions in that case, for the attention of the Court of Cassation, the Advocate-General P. LyonCaen stated, inter alia (see Liaisons sociales, 1999, jurisp. no. 637): “This is not the first time [Article 6 § 1 of the Convention] has been invoked before you in respect of the social security’s technical claims departments. Hitherto, however, you have considered the complaints unfounded, particularly with regard to the national tribunal for claims relating to disability and level of insurance coverage for accidents at work ...” 23. In its 1998 annual report (p. 19, section on suggestions for legislative or regulatory amendments), published in April 1999, the Court of Cassation expressed doubts as to the compatibility of the procedure before the CNITAAT with the guarantees of the right to a fair trial enshrined in Article 6 § 1 of the Convention, in respect of: - the composition of the tribunal, whose members include civil servants who are part of a hierarchy, in violation of the right to an independant and impartial tribunal; - the fact that it rules solely on the basis of documents, in violation of the principle of the public character of proceedings; - the prior examination of the file by an accredited doctor, which circumvents the adversarial principle if the opinion is not communicated to the parties. In this connection the Court of Cassation considered that even if the accredited doctor did not have expert status, the communication of his opinion to a doctor the interested party has been invited to designate should be envisaged. 24. In five judgments on 22 December 2000 (Bull. no. 12; RJS 2001, no. 366), the Court of Cassation, sitting as a full court, departed from its case-law and found the procedure applicable before the CNITAAT incompatible with Article 6 § 1 of the Convention on the three points singled out by the Court of Cassation in its above-mentioned report. 25. In his submissions on four of these cases, for the attention of the Court of Cassation, Advocate-General P. LyonCaen explained, inter alia: “It is evident not only that the civil servants who sit on the CNITAAT enjoy no specific guarantee as to their freedom of decision in the discharge of their judicial duties, but that the minister in charge of the administrative entity to which they belong has control over the Social Security through a directorate of his ministry and the regional directors of health and social affairs, who themselves, on behalf of the State and under the authority of the regional Prefect, have control over the primary social security funds and the areas they cover. However, the decisions challenged before the CNITAAT are decisions of the social security funds, and these funds are more often than not also parties to the proceedings. ... The fact that these civil servants are appointed for unlimited periods and that their judicial activities may be terminated at any time makes their situation more precarious and adds concern about their independence to the doubts about their impartiality. ... As regards the other categories of members of the CNITAAT, their appointment by the Minister responsible for Social Security or the fact that the minister draws up the list from which they are chosen, even if the trade organisations do make proposals – leaving the possibility for the minister to make choices – , the fact that they are all appointed for an unlimited period, which means that the minister can remove them at any time, including judges, who are therefore not irremovable, with the exception of those representing employees and employers, who are appointed for five years but whose term of office the minister may or may not renew, and the lack of guarantees in the discharge of their judicial duties are all factors that undermine the independence and impartiality of this tribunal. ... What clearly applies to the composition of the CNITAAT also applies to how it operates and could also be raised of the tribunal’s own motion. Thus does the national court actually operate with the compulsory assistance, in every case, of an “accredited doctor” and a rapporteur, who is generally not a member of the tribunal: however, not only are these collaborators remunerated on a case-by-case basis, from the budget of the Ministry in charge of Social Security, but they are chosen from lists drawn up by the same ministry, and most of the rapporteurs are active or retired members of the ministry’s staff, or active or former employees of the social security funds ... Furthermore, Article R. 143-19 of the Social Security Code provides for the minister responsible for Social Security – whose powers over this court are to all appearances already great – to be able to submit written or oral observations to the CNITAAT. This provision – which he does not seem to have made use of in any of the cases before you – is clearly an infringement of equality of arms, and therefore of the right to a fair trial and Article 6.1. In particular, this possibility of presenting oral observations means that the minister must be informed of the hearing and familiar with the accredited doctor’s opinion and the report, two “privileges” denied to the other parties ...” 26. In the meantime, and subsequently, decrees nos. 99-449 and 2003614 of 2 June 1999 and 3 July 2003 and Law no. 2002-73 of 17 January 2002 were enacted to reform the procedure applicable before the disability claims tribunal and the CNITAAT (legal and regulatory part of the Social Security Code). Concerning the CNITAAT, the relevant provisions are the following: 27. Article L. 143-3 stipulates that it shall henceforth be composed of: a president, who is a judge in the court of appeal of the jurisdiction in which the tribunal’s seat is located, appointed for three years in the same way as court of appeal judges are appointed; section presidents, who are judges in the same court of appeal, appointed for three years by order of the president, and judges (assesseurs) representing salaried workers on the one hand and employers or self-employed people on the other, appointed for renewable three-year periods by decree of the Minister of Justice from a list drawn up by the President of the Court of Cassation on the proposal of the most representative trade organisations concerned. 28. Each section whall be composed of its president and two assesseurs (Article L. 1436). The withdrawal of an assesseur may be requested if he or she has had prior dealings with the case as an adviser or if there is a relationship of subordination between the assesseur or his or her spouse and one of the parties and his or her spouse (Article L. 1438). 29. By virtue of Article R. 143-25 the procedure for communicating memorials and documents remains unchanged and is the responsibility of the secretariat of the tribunal (see old rules, above). Henceforth the parties may also present new medical evidence in reply. 30. The role of the accredited doctor has disappeared, as has that of the rapporteur. Articles R. 14327 and R. 14328 provide henceforth for the president of the section in charge of the case to be able to appoint one or more medical consultants or experts, in an advisory capacity, “to examine the medical file submitted to the [tribunal]”. A copy of the “consultant’s or expert’s report” is then addressed to each party or the doctor appointed by him or her if it is a medical report, who then has twenty days to file written observations. 31. In the same letter the section president informs the parties of the close of the investigation and the date of the hearing, which is public. At the hearing the parties or their representatives may present oral observations once the section president has presented his report (Article R. 14326).