Instantie

Europees 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 oordeelt dat er sprake
is van schending van art. 14 jo. art. 16 lid 1 EVRM.

Volledige tekst

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Proceedings before the Commission

39. Mrs Schuler-Zgraggen applied to the Commission on 29 December 1988.
She complained, firstly, that her right to a fair trial (Article 6
paragraph 1 of the Convention) had been infringed in that she had had
insufficient access to the file of the Appeals Board and there had been
no hearing in the Federal Insurance Court. She also claimed that the
assumption made by that court, that she would have given up working even
if she had not has health problems, amounted to discrimination on the
ground of sex (Article 14 taken together with Article 6 paragraph 1).

40. The Commission declared the application (no. 14518/89) admissible on
30 May 1991. In its report of 7 April 1992 (made under Article 31), the
Commission expressed the opinion that

(a) there had been no breach of Article 6 paragraph 1 either on account
of the failure to hold a hearing (by ten votes to five) or in respect of
access to the file (by thirteen votes to two); and

(b) there had been no breach of Article 14 taken together with Article 6
paragraph 1 (by nine votes to six).

The full text of the commission’s opinion and of the six dissenting
opinions contained in the report is reproduced as an annex tot this
judgment. (Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 263 of Series
A of the Publications of the Court), but a copy of the Commission’s report
is obtainable from the registry).

Final submissions to the court

41. In their memorial the Government requested the Court to

“hold that in the present cast (in so far as Article 6 paragraph 1 of the
Convention is applicable and the applicant, with reference to a specific
complaint, is a victim and, with reference to another complaint, has
exhausted domestic remedies) there has not been a violation of Article 6
paragraph 1 of the Convention or of any other of its provisions”.

42. Counsel for the applicant asked the Court to

(a) “continue along the path it took in the Feldbrugge and Deumeland cases
and to rule that the rights claimed by the applicant in the present case
likewise are mainly civil ones, falling within the ambit of Article 6
paragraph 1 of the Convention”:

(b) “hold that there has been a breach of Article 6 paragraph 1 with
respect to the right to an adversarial hearing”; and

(c) “hold that there has been a breach by the Federal Insurance Court of
Article 14 taken together with Article 6 paragraph 1 of the Convention”.

As to the law

I. Alleged violation of article 6 paragraph 1

43. Mrs. Schuler-Zgraggen claimed to be the victim of breaches of Article
6 paragraph 1, which provides:

“In the determination of his civil rights and obligations …, everyone
is entitled to a fair and public hearing … by (a) …tribunal ……”

A. Applicability of Article 6 paragraph 1

44. It was common ground between the applicant and the Commission that
this provision applied in the instant case.

45. The Government maintained the contrary as, in their submission, the
case had public-law features which clearly predominated. Firstly, the
claimed right did not derive from a contract of employment, since
affiliation was compulsory for the self-employed and the unemployed too.
Secondly, award of the pension depended exclusively on the degree of
incapacity, no account being taken either of the insured’s income or
wealth or of the payment of contributions. Thirdly, the Swiss system was
strikingly distinctive, in particular in that the financing of it was
based on the principles of pay as you go, solidarity and partly drawing
on tax revenues.

46. The Court is here once again confronted with the issue of the
applicability of Article 6 paragraph 1 to social-security disputes. The
question arose earlier in the cases of Feldbrugge v. the Netherlands and
Deumeland v. Germany, in which it gave judgment on 29 May 1986 (Series A
nos. 99 and 100). At that time the Court noted that there was great
diversity in the legislation and practice of the member States of the
Council of Europe as regards the nature of the entitlement to insurance
benefits under social-security schemes. Nevertheless, the development in
the law that was initiated by those judgments and the principle of
equality of treatment warrant taking the view that today the general rule
is that Article 6 paragraph 1 does apply in the field of social insurance,
including even welfare assistance (see the Salesi v. Italy judgment of 26
February 1993, Series A no. 257-E, pp. 59-60, paragraph 19).

As in the two cases decided in 1986, State intervention is not sufficient
to establish that Article 6 paragraph 1 is inapplicable; other
considerations argue in favour of the applicability of Article 6 paragraph
1 in the instant case. The most important of these lies in the fact that
despite the public-law features pointed out by the Government, the
applicant was not only affected in her relations with the administrative
authorities as such but also suffered an interference with her means of
subsistence; she was claiming an individual, economic right flowing from
specific rules laid down in a federal statute (see paragraph 35 above).

In sum, the Court sees no convincing reason to distinguish between Mrs
Schuler-Zgraggen’s right to an invalidity pension and the rights to
social-insurance benefits asserted by Mrs Feldbrugge and Mr Deumeland.

Article 6 paragraph 1 therefore applies in the instant case.

B. Compliance with Article 6 paragraph 1

1. Access to the Appeals Board’s file

47 Mrs. Schuler-Zgraggen complained in the first place of insufficient
access to the Appeals Board’s file.

(a) The government’s preliminary objection

48. As they had done before the Commission, the Government raised an
objection of inadmissibility based on lack of victim status, arguing that
the applicant had not availed herself of the opportunity of examining the
file at the Appeals Board’s registry.

49. The Court notes that the applicant’s complaint relates not so much to
inspecting the file as to having the documents in it handed over or, at
any rate, securing photocopies of them. The objection must therefore be
dismissed.

(b) Merits of the complaint

50. In Mrs. Schuler-Zgraggen’s submission, the facts of her case -as often
in the social -security field- were complex, and this made it necessary
for her to submit documents to specialists. She should therefore have been
granted the same facilities as the administrative departments, on whose
premises the file was permanently held. Furthermore, she had never had
access to Dr F.’s report on her lungs, fo that she had been unable to
submit it to her own expert.

51. The Government disputed this submission. In the proceedings before the
Appeals Board the applicant had not availed herself of the opportunity to
inspect part of the file and take notes. In het Federal Insurance Court
she had had access to all the documents -as had her lawyer, who had
received them not long afterwards -and had photocopied some of them. As
to Dr F.’s report, it was strictly speaking part of the file, as the
Federal Insurance Court moreover noted in its judgment of 21 June 1988;
in addition, it was summarised in the medical centre’s report of 14
January 1986, which the applicant had seen. In short, the principle of
equality of arms had not been contravened in any way.

52. The Court finds that the proceedings before the Appeals Board did not
enable Mrs Schuler-Zgraggen to have a complete, detailed picture of the
particulars supplied to the Board. It considers, however, that the Federal
Insurance Court remedied this shortcoming by requesting the Board to make
all the documents available to the applicant -who was able, among other
things, to make copies -and then forwarding the file to the applicant’s
lawyer (see, as the most recent authority, mutatis mutandis, the Edwards
v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B,
pp. 34-35, paragraph 34-39). It also notes that neither the Appeals Board
nor the Federal Insurance Court had Dr. F.’s report before it.

Since, taken as a whole, the impugned proceedings were therefore fair,
there has not been a breach of Article 6 paragraph 1 in this respect.

2. Federal Insurance Court hearing

53. Mrs Schulder-Zgraggen also complained that there had been no hearing
before the Federal Insurance Court.

(a) The Government’s preliminary objection

54. In the Government’s submission, the applicant had not exhausted
domestic remedies, as she had failed to apply to the Federal Insurance
Court for the proceedings to be oral and public. Admittedly, that court
rarely held hearings, but it did not follow that such an application would
have been bound to fail.

55. In respect of this preliminary objection there is an estoppel, as the
Government only raised it before the Commission after the decision on
admissibility, whereas nothing prevented them from doing so earlier (see,
as the most recent authority and mutatis mutandis, the Pine Valley
Developments Ltd and Others v. Ireland judgment of 29 November 1991,
Series A no. 222, p. 21, paragraph 45).

(b) Merits of the complaint

56. Mrs. Schuler-Zgraggen submitted that the Federal Insureance Court
should have ordered a hearing so as to form its own opinion of her and
ensure that she had a fair trial.

57. The Government considered, on the contrary, that in certain field
purely written court proceedings did not in any way prejudice the
interests of the litigant. They emphasised a number of aspects. Firstly,
the traditional characteristics of social-security disputes made oral
presentation of arguments in which technical points and numerous figures
were adduced difficult. Secondly, in the cases brougth before it the
Federal Insurence Court was free to review the facts and the law, and this
made it more akin to an ordinary court of appeal. This was particularly
so in administrative-law appeals, as here the Federal Court could rule on
the appropriateness of the impugned decision and was not bound either by
the cantonal authority’s findings of fact or by the submissions of the
parties. Thirdly, the number of judgments – approximately 1,200 a year
-would drop dramatically if public, oral proceedings were to be the rule;
in such an event, the lengthening of the proceedings would seriously
jeopardise access to the supreme court.

58. The Court reiterates that the public character of court hearings
constitutes a fundamental principle enshrined in paragraph 1 of Article
6. Admittedly, neither the letter nor the spirit of this provision
prevents a person from waiving of his own free will, either expressly or
tacitly, the entitlement to have his case heard in public, but any such
waiver must be made in an unequivocal manner and must not run counter to
any important public interest (see, among other authorities, the Hakansson
and Sturesson v. Sweden judgment of 21 February 1990, series A no. 171-A,
p. 20 paragraph 66).

In the instant case the Federal Insurance Court’s Rules of Procedure
provided in express terms for the possibility of a hearing “on an
application by one of the parties or of the (presiding judge’s) own
motion” (Rule 14 paragraph 2 -see paragraph 38 above). As het proceedings
in that court generally take place without a public hearing, Mrs. Schuler-
Zgraggen could be expected to apply for one if she attached importance to
it. She did not do so, however. It may reasonably be considered,
therefore, that she unequivocally waived her right to a public hearing in
the Federal Insurance Court.

Above all, it does not appear that the dispute raised issues of public
importance such as to make a hearing necessary. Since it was highly
technical, it was better dealt with in writing than in oral argument;
furthermore, its private, medical nature would no doubt have deterred the
applicant from seeking to have the public present.

Lastly, it is understandable that in this sphere the national authorities
should have regard to the demands of efficiency and economy. Sytematically
holding hearings could be an obstacle to “the particular diligence
required in social- security cases” (see the Deumeland v. Germany judgment
previously cited, p. 30, pararaph 90) and could ultimately orevent
compliance with the “reasonable time” requirement of Article 6 paragraph
1 (see, mutatis mutandis, the Boddaert v. Belgium judgment of 12 October
1992, Series A no. 235-D, pp. 82-83, paragraph 39).

There has accordingly been no breach of Article 6 paragrpah 1 in respect
of the oral and public nature of the proceedings.

3. Indepencence of the medical experts

59. At the hearing before het Court, counsel for Mrs Schuler- Zgraggen
called in question the independence of doctors bound by a long-term
contract to a social-security institution, on the ground that they
received from that institution the greater part of their income.

60. This was a new complaint; it had not been raised before the Commission
and does not relate to the facts the Commission found within the limits
of its decision on admissibility. That being so, the Court has no
jurisdiction to consider it (see, as the most recent authority and mutatis
mutandis, the Olsson v. Sweden (No. 2) judgment of 27 November 1992,
Series A no. 250, pp. 30-31, paragraph 75).

II. Alleged violation of article 14 taken together with article 6
paragraph 1

61. Mrs Schuler-Zgraggen said, lastly, that in the exercise of her right
to a fair trial she had suffered discrimination on the ground of sex. She
relied on Article 14, which provides:

`The enjoyment of the rights and freedoms set forth in [the] Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth, or other
status.’

A. The government’s preliminary objection

62. As they had done before the Commission, the Government raised an
objection of inadmissibility based in failure to exhaust domestic
remedies. The applicant, they submitted, had done no more than
characterise the wording used by the Appeals Board as `arbitrary’ and had
therefore not made to the Federal Insurance Court a precise complaint
relating to discrimination in the exercise of a right secured by the
Convention. 63. The Court adopts the Commission’s reasoning. Firstly Mrs
Schuler-Zgraggen objected to the terms of the Federal Insurance Court’s
judgment of 21 June 1988, against which no appeal lay. Secondly, in her
administrative-law appeal she had already criticised the (similar)
assumption made by the Appeals Board in its decision of 8 May 1987. The
objection is therefore unfounded.

B. Merits of the complaint

64. According to the applicant, the Federal Insurance Court based its
judgment on an `assumption based on experience of everyday life’, namely
that many married women give up their jobs when their first child is born
and resume it only later (see paragraph 29 above). It inferred from this
that Mrs Schuler-Zgraggen would have given work even if she had not had
health problems. The applicant considered that even if she had been a man,
the Federal Insurance Court would never have made such an assumption,
which was contradicted by numerous scientific studies.

65. The Government argued that Article 6 paragraph 1 and thus, indirectly,
Article 14 were not applicable, as the complaint was concerned with the
taking of evidence, a sphere which essentially came within the State
authorities’ competence.

66. The Court reiterates that the admissibility of evidence is governed
primarily by the rules of domestic law, and that it is normally for the
national courts to assess the evidence before them. The Court’s task under
the Convention is to ascertain whether the proceedings, considered as a
whole, including the way in which the evidence was submitted, were fair
(see, as the most recent authority and mutatis mutandis, the Ludi v.
Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, paragraph
43, and the Edwards v. the United Kingdom judgment previously cited, pp.
34-35, paragraph 34).

67. In this instance, the Federal Insurance Court adopted in its entirety
the Appeals Board’s assumption that women gave up work when they gave
birth to a child. It did not attempt to probe the validity of that
assumption itself by weighing arguments to the contrary. As worded in the
Federal Court’s judgment, the assumption cannot be regarded * as asserted
by the Government * as an incidental remark, clumsily drafted but of
negligible effect. On the contrary, if constitutes the sole basis for the
reasoning, thus being decisive, and introduces a difference of treatment
based on the ground of sex only.

The advancement of the equality of the sexes is today a major goal in the
member States of the Council of Europe and very weighty reasons would have
to be put forward before such a difference of treatment could be regarded
as compatible with the Convention (see, mutatis mutandis, the Abdulaziz,
Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985,
Series A no. 77, p. 38, paragraph 78). The Court discerns no such reason
in the instant case. It therefore concludes that for want of any
reasonable and objective justification, there has been a breach of Article
14 taken together with Article 6 paragraph 1.

III. Application of Article 50

68. Under Article 50,

‘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 confilict with the obligations arising from the …
Convention, and if the international 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. Damage

1. Non-Pecuniary damage

69. Mrs Schuler-Zgraggen claimed that she had sustained non- pecuniary
damage, which she did not quantify, and sought payment of a provisional
sum of CHF 22,500 for the length of the proceedings before the Convention
institutions.

70. The government submitted that the publication of a judgment in which
a violation was found would satisfy the requirements of Article 50. The
Delegate of the Commission did not express any view.

71. The Court considers that the applicant may have suffered non-pecuniary
damage but that this judgment provides her with sufficient satisfaction
for it.

2. Pecuniary damage

72. Mrs Schuler-Zgraggen also complained that she had lost the benefit of
a full invalidity pension on account of proceedings incompatible with
Articles 6 paragraph 1 and 14. She did not, however, claim any specific
sum.

73. The Government pointed out that since 15 February 1992 Swiss law had
enabled a victim of a violation found by the Court, or by the Committee
of Ministers of the Council of Europe, to apply for a reopening of the
impugned proceedings. They therefore considered that the question was not
ready for decision.

74. This is also the view of the Court. The question must accordingly be
reserved and the further procedure must be fixed, due regard being had to
the possibility of an agreement between the respondent State and the
applicant (Rule 54 parapraph 1 and 4 of the Rules of Court).

B. Costs and expenses

75. Mrs Schuler-Zgraggen sought CHF 7,130.90 in respect of costs and
expenses for the proceedings before the national judicial bodies (Mr
Derrer: CHF 300; Mr Stockli: CHF 2,694.20; Mr Wehrli: 2,936.70; own
expenses: CHF 1,200). She also claimed CHF 14,285.70 for the proceedings
before the Convention institutions, not including the expenses incurred
by attending two hearings before the European Court, the one on 26 January
1993 and the one for delivery of the judgment.

The Government found the claim excessive. The applicant had not incurred
any legal costs before the cantonal authorities or the Federal Insurance
Court, and before the Invalidity Insurance Board -at which stage she was
assisted by three lawyers- she had not raised any complaint based on the
Convention. A lump sum fo CHF 5,000 would amply cover all the costs and
expenses incurred in Switzerland and at Strasbourg.

The Delegate of the Commission considered that the expenses incurred in
the proceedings before the Appeals Board were not concerned with remedying
a breach of the Convention and he invited the Court to apply its case-law
on expenses incurred in the proceedings before the Strasbourg
institutions.

76. Making its assessment on an equitable basis as required by Article 50
and having regard to the criteria which it applies in this field, the
Court awards the applicant CHF 7,500 under this head as matters stand.

For these reasons, the Court

1. Holds unanimously that Article 6 paragraph 1 applied in the case;

2. Dismisses unanimously the Government’s objections;

3. Holds unanimously that it has no jurisdiction to entertain the
complaint concerning the independence of the medical experts;

4. Holds by eight votes to one that there has been no breach of Article
6 paragraph 1;

5. Holds by eight votes to one that there has been a breach of Article 14
taken together with Article 6 paragraph 1.

6. Holds unanimously that this judgment in itself constitutes sufficient
just satisfaction as to the alleged non-pecuniary damage;

7. Holds as matters stand, by eight votes to one, that the Confederation
is to pay the applicant, within three months, 7,500 (seven thousand five
hundred) Swiss francs in respect of costs and expenses;

8. Holds by eight votes to one that the question of the application of
Article 50 is not ready for decision as regards pecuniary damage;

accordingly,

(a) reserves the said question in that respect;

(b) invites the Government and the applicant to submit, within the
forthcoming six months, their written observations on the matter and, in
particular, to notify the Court of any agreement they may reach;

(c) reserves the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.

Rechters

Mrs Bernhardt, Golcuklu, Walsh, Russo, Spielmann, Foighel,Wildhaber, Loizou, Lopes Rocha, Eissen