PROCEDURE

The case originated in an application (no. 71665/01) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Ms Gisèle Augusto (“the applicant”), on 31 August 2000.

The applicant was represented by Mr A. Lyon-Caen, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, then by his successor, Ms E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

On 18 November 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1936 and lives in Vouziers.

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.

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.

On 13 December 1996 the disability claims tribunal upheld the CRAM’s decision.

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.

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 L5‑S1. 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 cervico‑brachial 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. 351‑21 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 ...”

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.

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. 143‑28 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.”