Resolution CM/ ResDH (2009)48 [1]

Execution of the judgment of the European Court of Human Rights

Augusto against France

(Application No. 71665/01, judgment of 11 January 2007, final on 11 April 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the infringement of the right to a fair trial on account of the failure to communicate to the applicant the opinion of the doctor appointed by the CNITAAT (national tribunal for incapacity and the establishment of insurance for industrial accidents) in proceedings to obtain a retirement pension on the basis of her incapacity to work (violation of Article 6 paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2009)48

Information about the measures to comply with the judgment in the case of

Augusto against France

Introductory case summary

The case concerns a violation of the applicant ’ s right to a fair trial (violation of Article 6, paragraph 1) on account of the failure to communicate to her the opinion of the doctor appointed by the CNITAAT (national tribunal for incapacity and insurance for industrial accidents) in proceedings in 1996 to obtain a retirement pension on the basis of her incapacity to work.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000,00 €

4 397,24 €

9 397,24 €

Paid on 09/08/2007 (+ interest)

b) Individual measures

Before the European Court , the applicant alleged that she had sustained pecuniary damage equal to the pensions she should have received since 1996.

In this respect, the European Court held that it could not speculate as to the outcome of the proceedings had they been conducted in conformity with the Convention.

The applicant may request re-examination of her situation at national level. She may lodge a new request for a pension. If need be, she might challenge the decision, without the risk of a new, similar violation (in particular, see the general measures below).

Concerning possible consequences of the violation for the past, on which neither the Court, nor the Committee of Ministers can speculate, the applicant could seise the competent administrative authority of her claims for compensation for the period at issue. In these circumstances, the administrative authorities would have to assess once again the applicant ’ s situation and would adopt a new decision which would be subject to appeal before the administrative courts. As these courts apply the Convention directly; hence there is no reason to doubt that, if need be, they would take this judgment into account in order to erase, as far as possible, the negative consequences of the violation of the Convention.

In any case the applicant made no request to the Committee of Ministers in respect of individual measures, at the execution stage.

II. General measures

After the facts of this case, Law No. 2002-73 of 17/01/2002 and a Decree of 3/06/2003 modified procedures before the CNITAAT. Now, the president in charge of the case may appoint one or several medical experts and copies of their reports must be sent to the parties (see in particular § 30 of the judgment).

Furthermore, the judgment was sent out to the First President of the Cour de cassation , to the Prosecutor General before the Cour de cassation and to the Directorate of Criminal Affairs and Pardons of the Ministry of Justice.

III. Conclusions of the respondent state

The government considers that it is possible to remedy the consequences for the applicant of the violation of the Convention found by the European Court in this case, that the measures adopted will prevent new, similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 April 2009 at the 1051st meeting of the Ministers’ Deputies