CEDH · CASELAW;CLIN;ENG — 11 janvier 2007

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France - 71665/01 Judgment 11.1.2007 [Section I] Article 6 Civil proceedings Article 6-1 Fair hearing Legal aid Failure to communicate the opinion of the court's medical expert: violation   Article 35 Article 35-1 Exhaustion of domestic remedies Failure to raise all the complaints before a domestic court: inadmissible   Facts : By a decision of the COTOREP (occupational counselling and redeployment board) the applicant was registered as 50-79% disabled and was issued with a card certifying that she found it difficult to remain in a standing position. However, the regional health insurance office dismissed her request for a retirement pension on the basis of her incapacity to work, on the ground that she was not at least 50% disabled. The disability claims tribunal upheld the decision to reject her request. The applicant appealed to the CNITAAT (national tribunal for claims relating to disability and insurance coverage for accidents at work), submitting a number of medical certificates attesting to her state of health and relying on the decision to register her as a disabled person. The CNITAAT upheld the judgment of the first-instance tribunal, partly basing its findings on the observations of its accredited doctor. The applicant appealed on points of law, alleging that there had been a violation of Article 6 of the Convention in that the report by the accredited doctor, drawn up solely on the basis of documents, had not been made available to her or to the doctor that she had appointed to submit observations. In a judgment the Employment and Welfare Division of the Court of Cassation dismissed her appeal on the ground that the accredited doctor responsible for the preliminary examination of the case file had simply given an opinion to the CNITAAT without filing an expert's report that would have been subject to adversarial debate between the parties; and that the CNITAAT, independently assessing the findings of its accredited doctor and the various documents in the case file after prior analysis, considered that the degree of disablement, of which the COTOREP's assessment was not binding on the court, was in fact less than 50%, so that the applicant was not entitled to a retirement pension on the basis of unfitness for work. Law : As to the admissibility of the complaints not referred to the Court of Cassation – Appeals on points of law would normally be included among the remedies to be exhausted, but an applicant could not be regarded as having failed to exhaust domestic remedies if he or she could show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she had not used had been bound to fail. The applicant had appealed on points of law against the judgment of the CNITAAT, complaining, in particular, of the failure to communicate to her the opinion of the accredited doctor concerning her case. The applicant had relied on Article 6 of the Convention, referring to the “requirements of the right to a fair trial” and, in particular, to the non-observance of the “equality of arms” principle. At the material time such an argument should have been dismissed according to settled case-law of the Court of Cassation, but that had not prevented the applicant from lodging her appeal on points of law or from considering that a departure from precedent might be possible. The applicant had had a remedy that she considered effective in respect of violations of Article 6 in general. She should have submitted all of her complaints to the domestic court. Inadmissible for failure to exhaust domestic remedies. Admissible concerning the failure to communicate to the applicant the opinion of the accredited doctor appointed by the domestic court to carry out a preliminary medical examination of her case. Merits : The opinion of the accredited doctor had been a crucial factor in the decision reached by the court, and the communication of that opinion was all the more important as the doctor could not be regarded as impartial, in so far as he had been chosen from a list drawn up by the Minister for Social Security, the supervisory authority of the other party in the proceedings at issue. The opinion had not been communicated to the applicant. A medical expert's report, in so far as it concerned a technical matter outside the knowledge of the domestic courts, was capable of having a preponderant influence on their assessment of the facts and constituted an essential item of evidence on which the parties to the dispute had to be able to comment effectively. The assignment entrusted to the accredited doctor played a decisive role as it consisted in an examination of the medical file before the CNITAAT for the purpose of reaching a conclusion as to whether or not the medical conditions had been satisfied for the granting of the welfare benefit claimed. The CNITAAT essentially relied on that opinion to reject the applicant's request for a pension. In this connection, the Court was not persuaded by the distinction that the Court of Cassation had made between the opinion of an accredited doctor and the report of a medical expert, in order to show that only such a report would be subject to adversarial scrutiny by the parties. Moreover, whilst it was true that the opinion of the accredited doctor did not, in law, bind the CNITAAT, it was nevertheless capable, as shown in the present case, of having a decisive influence on the decision of that tribunal. Therefore, the applicant had not had a fair hearing, on account of the lack of adversarial communication of the opinion of the doctor appointed by the CNITAAT, so that the applicant had been unable to discuss it. Conclusion : violation. Article 41 - EUR 5,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes