Instantie

Europese hof voor de rechten van de mens

Samenvatting

Een vrouw krijgt een volledige arbeidsongeschiktheidsuitkering op grond van
haar ziekte tuberculose. De uitkering wordt stopgezet een aantal jaren nadat
ze een kind heeft, met als argumentatie dat haar familieomstandigheden zijn
veranderd na de geboorte van haar kind, haar gezondheid is verbeterd en zij
voor zestig tot zeventig procent in staat is om voor haar kind te zorgen.
Bovendien werd van de veronderstelling uitgegaan dat de vrouw ook als ze niet
ziek was geworden haar baan had opgegeven bij de geboorte van haar kind. Het
hof oordeelde op 24 juni 1993 (RN 1994, nr. 409) dat er sprake was van
schending van art. 14 jo. art. 16 lid 1 EVRM.
Nu oordeelt het hof over de `pecuniary damages’. Het Hof komt tot de
beslissing dat Zwitserland de vrouw een schadevergoeding dient te betalen van
vijfentwintigduizend Zwitserse franken.
Eiser voert aan dat de Staat ten onrechte de jaren waarvoor M.W. geacht moet
worden een vrijstelling te hebben gehad, heeft meegeteld bij de berekening
van het vereiste aantal jaren dat zij inkomen uit arbeid moet hebben gehad.
M.W. was van de zestien jaren die zij na haar achttiende jaar in Nederland
heeft gewoond gedurende acht jaar als alleenstaande ouder belast met de zorg
voor kinderen onder de zes jaar.
De Staatssecretaris heeft volgens de president niet kunnen besluiten zijn
standpunt te handhaven, zodat de gevraagde voorziening dient te worden
toegewezen.

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Procedure and facts.
1. The case was referred to the Court by the European Commission of Human
Rights (`the Commission’) and by the Government of the Swiss Confederation
(`the Government’) on 25 May and 5 August 1992, within the three-month period
laid down by Article 32 par. 1 and Article 47 of the Convention. It
originated in an application (no. 14518/89) against the Swiss Confederation
lodged with the Commission under Article 25 by a Swiss national, Mrs. Margrit
Schuler-Zgraggen, on 29 December 1988.
2. In a judgement of 24 June 1993 (`the principal judgment’) the Court found
that there had been a breach of Article 14 of the Convention taken together
with Article 6 par. 1, as the assumption that women gave up work when they
gave birth to a child had been the sole basis for the reasoning in a judgment
of the Federal Insurance Court and had introduced a difference of treatment
on the ground of sex only, a difference that lacked any reasonable and
objective justification (Series A no. 263, pp. 20-22 and 24, par. 61-67 and
point 5 of the operative provisions).
The Court ruled that its judgment constituted in itself sufficient just
satisfaction in respect of the alleged non-pecuniary damage and that the
respondent State was to pay the applicant, within three months, 7.500 Swiss
Francs (CHF) in respect of costs and expenses (ibid., pp. 22-24, par. 69 and
76 and points 6-7 of the operative provisions).
3. As the question of the application of Article 50 was not ready for
decision as regards the pecuniary damage, it was reserved in the principal
judgment. The Court invited the Government and the applicant to submit their
written observations within six months and, in particular, to notify the
Court of any agreement they might reach (ibid., pp. 23 and 24, par. 74 and
point 8 of the operative provisions).
4. On 7 April 1994 the Agent of the Government informed the President that in
a judgement of 24 March 1994 the Federal Insurance Court had concluded the
rehearing proceedings commenced under section 139a of the Federal Judicature
Act. Its own judgment of 21 June 1988 had been set aside, together with the
decision of the Canton of Uri Appeals Board for Old Age, Survivors’ and
Invalidity Insurance of 8 May 1987 and the decision of the Invalidity
Insurance Board of the Canton of Uri of 21 March 1986; and the applicant had
been granted a full invalidity pension with effect from 1 May 1986.
5. On 27 April 1994 counsel for the applicant advised the Registrar that his
client did not consider that the proceedings in Switzerland were terminated
and that she had submitted to the Department of Finance a claim for
compensation in the amount of CHF 40,933.64 based on section 3 of the Act on
the liability of the Confederation.
6. On 25 May 1994 the Secretariat of the Commission informed the Registrar
that the Delegate wished to leave the question of Article 50 to the Court’s
discretion.
7. On 14 September 1994 the applicant’s representative sent the Registrar a
copy of the Federal Council’s decision of 12 June 1994 whereby the
compensation claim was refused; he asked the Court to consider the
possibility of ruling on his client’s claims as an agreement with the
Government seemed unlikely.
8. On the President’s instructions, the Registrar consulted the Agent of the
Government and the Delegate of the Commission. On 12 October 1994 the Agent
said he had nothing to add to the Federal Council’s decision of 12 June 1994.
On the following day the Delegate made it known that he was leaving the
matter to the Court’s discretion.
9. On 25 October 1994 the Court decided that in the circumstances of the case
it was unnecessary to hold a hearing.
As to the law
10. Under Article 50 of the Convention,
`If the Court finds that a decision or a measure taken by a legal authority
or any other authority of a High Contracting Party is completely or partially
in conflict with the obligations arising from the … Convention, and if the
internal law of the said Party allows only partial reparation to be made for
the consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured party.’
A. Submissions by the participants in the proceedings
11. Mrs. Schuler-Zgraggen maintained that the question of compensation for
pecuniary damage had not been finally settled by the Federal Insurance
Court’s judgment of 24 March 1994 in which her continuing right to a full
invalidity pension was retrospectively recognised (see paragraph 4 above).
She sought interest on that pension in the amount of CHF 40.933,64. She
arrived at that figure by applying a rate of 5% over the period from 1 May
1986, when payment of the pension was stopped by decision of the Invalidity
Insurance Board of the Canton of Uri, to 20 April 1994, when the arrears of
pension (CHF 218,512) were paid by the Compensation Office of the Swiss
Machine and Metal Industry.
12. Referring to their decision of 12 June 1994 (see paragraph 7 above), the
Government considered the applicant’s claim to be wholly unjustified.
Without requesting the Court to stay its decision, they pointed out that the
Federal Insurance Court had ruled that it had no jurisdiction to entertain
such an application, stating that it should be made to the Canton of Uri or
the Swiss Confederation in special proceedings putting the State’s liability
in issue.
They contended that Mrs. Schuler-Zgraggen’s claim had to be appraised on the
basis of domestic law alone, namely the Federal Act on the liability of the
Confederation, members of its authorities and its officials. Article 50 would
only be relevant if the Federal Insurance Court had given judgment against
the applicant in an administrative-law action founded on the Act in question.
Moreover, the Government could not, in the instant case, discern any link
between the payment or non-payment of interest and the claim for just
satisfaction. By reopening the proceedings and setting aside its judgment of
21 June 1988 (Series A no. 263, pp. 12-13, par. 29), the Federal Insurance
Court had made full reparation for the consequences of the breach of the
Convention found by the Court, a breach that had been due to discrimination
on the ground of sex in the taking and assessing of the evidence that had
formed the basis for appraising the situation, not to the withdrawal of the
invalidity pension. If, after considering Mrs. Schuler-Zgraggen’s application
for a rehearing, the Federal Insurance Court had held that the applicant had
no right to such a pension, the breach would still have had to be regarded as
having been remedied.
The government pointed out, lastly, that the applicant had been treated in
the same way as all others entitled to a pension who were awarded
social-insurance benefits in a court decision, as interest was not normally
paid on a retrospective pension payment.
13. The Delegate of the Commission left the matter to the Court’s discretion.
B. Decision of the Court
14. The Court takes note of the rehearing proceedings under section 139a of
the Federal Judicature Act which, following it principal judgment, took place
in the Federal Insurance Court and culminated in the applicant’s being
awarded a full invalidity pension with effect from 1 May 1986. It fully
appreciates the importance of that court’s judgment of 24 March 1994 for the
execution of judgments delivered at Strasbourg; the Federal Insurance Court
thereby showed its commitment to the Convention and the Court’s case-law
(see, mutatis mutandis, the Barbera, Messegue and Jabardo v. Spain judgment
of 13 June 1994, Series A no. 285-C, p., 56, par. 15).
15. The only issue remaining to be determined is that of the interest claimed
by Mrs. Schuler-Zgraggen on the invalidity pension received between 1 May
1986 and 20 April 1994.
The Court reiterates that `just satisfaction’ is to be afforded `if
necessary’ and that it is not bound in the matter by any national legal rule
(see the Sunday Times v. the United Kingdom (no. 1) judgment of 6
November 1980, Series A no. 38, p. 9, par. 15), in this instance the Federal
Insurance Court’s case-law on the awarding of interest. It consequently
considers that it is not for the European Court to pass judgment on the
merits in Swiss law of the Federal Insurance Court’s decision in which the
claim in issue was disallowed. It suffices for it to note that at the end of
fresh proceedings following the Strasbourg judgment, the Federal Insurance
Court recognised that the applicant was entitled to a full pension and gave
retrospective effect to that recognition. In so doing, it intended to make
reparation for the damage resulting from the breach of the Convention.
However, it did not take into account the passing of time –
about eight years. It therefore appears justified under the Convention to
award some interest for the period in question.
The Court does not, however, agree with the summary and imprecise method of
calculation proposed by Mrs. Schuler-Zgraggen, and in particular with the
rate of 5%.
Making its assessment on an equitable basis in accordance with Article 50, it
awards the applicant CHF 25.000 for the remaining pecuniary damage.
For these reasons, the Court
1. Holds by seven votes to two that the respondent State is to pay the
applicant, within three months, 25.000 (twenty-five thousand) Swiss francs in
respect of pecuniary damage;
2. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and notified in writing on 31 January 1995
pursuant to Rule 55 par. 2, second sub-paragraph, of Rules of Court A.
Joint dissenting opinion of judges Bernhardt and Wildhaber
We have voted against the decision to award interest since we are convinced
that the pension finally granted and paid for the applicant’s benefit
constitutes sufficient compensation and that no additional payment of
interest is required.

Rechters

R. Bernhardt (president), F. Gölcüklü, B. Walsh, C. Russo, A. Spielman, I.Foighel, A.N. Loizou, M.A. Lopes Rocha, L. Wildhaber