Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention)
THE LAW ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH aRTICLE 8 OF THE CONVENTION 44. The applicants complained of a violation of Article 14 taken in conjunction with Article 8 of the Convention, on the grounds that the requirement of a private home ( domicile ) in Switzerland was directly linked to the nature of the first applicant ’ s disability. They submitted that the decisive criterion for the first applicant to be eligible for the benefits in issue, that is to say having a private home in Switzerland, depended, in a discriminatory manner, on the type of disability – congenital – suffered by the applicant, since disabled persons who had been able to pay contributions were able to export their pensions. Those two provisions provided : Article 14 “ 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. Article 8 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. ” A. Admissibility 45. The Government invited the Court to declare inadmissible the complaint under Article 14 read in conjunction with Article 8, as their main submission, as being incompatible ratione materiae with the Convention pursuant to Article 35 § 3 ( a) of the Convention, and in the alternative, as being manifestly ill-founded. 46. The applicants considered the complaint admissible. 47. The Court holds that the Government ’ s argument that Article 8 is not applicable to the present case, which would render the complaint under Article 14 inadmissible ratione materiae, goes to the merits of the case. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It should therefore be declared admissible. B. Merits 1. Applicability of Article 14 read in conjunction with Article 8 of the Convention (a) The parties ’ submissions (i) The Government 48. According to the Government, Article 8 of the Convention does not give rise to direct entitlement to social insurance benefits outside Switzerland. 49. The Government acknowledged that the Court had not ruled out the possibility of certain social benefits falling within the scope of Article 8 of the Convention. The Government cited, in particular Petrovic v. Austria (27 March 1998, §§ 26 et seq ., Reports of Judgments and Decisions 1998 ‑ II), concerning a parental leave allowance, and Moskal v. Poland (no. 10373/05, § 93, 15 September 2009), concerning an early retirement pension for the parents of a disabled child, and submitted that the benefits at issue in the present case were not designed to enable one of the parents to remain at home to look after children or to promote family life: they were intended to allow adult beneficiaries to lead an autonomous, independent life. 50. Referring to Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006 ‑ VI, the Government emphasised that the Convention did not restrict the Contracting States ’ freedom to decide whether or not to put in place a given social security scheme. Furthermore, even if such a scheme existed, the Government submitted that the right to a social benefit was a pecuniary right for the purposes of Article 1 of Protocol No. 1 to the Convention, which was not binding on Switzerland since it had not ratified it. 51. The Government further emphasised that the recruitment of a home-care nurse was not impossible given the current incomes of the second applicant and her husband, who had, moreover, defrayed the cost of medical provision thus far, having regard to the cost of living in Brazil. 52. The Government took the view that since the facts of the case did not fall within the scope of any Convention provision, Article 14 of the Convention was also applicable to the present case. ( ii ) The applicants 53. The applicants submitted that Article 8 of the Convention was applicable to the present case because the measures taken by the State were jeopardising the first applicant ’ s life and health, both applicants ’ autonomy and private life, and also their overall family unity. 54. The applicants denied invoking any right to live abroad; the second applicant, whom the first applicant needed because her father was unable to look after her, had followed her husband to Brazil out of financial necessity, in order to manage a hotel, which they were now attempting, without much success, to sell before returning to Switzerland. 55. The applicants alleged in particular that they were facing serious difficulties in organising their daily private lives, given that the first applicant could no longer benefit from the help of a trained assistant and that healthcare had to be provided by the second applicant – an elderly woman – whose ability to manage her hotel was being restricted. The applicants, referring to Glor v. Switzerland, no. 13444/04, § 54, ECHR 2009, also argued that a decision with mainly pecuniary consequences stemming from a disability fell within the ambit of Article 8 of the Convention. 56. The applicants, citing the judgments delivers in Petrovic v. Austria, cited above, §§ 27-29, and Moskal v. Poland, cited above, § 93, also submitted that family life was relevant because of the relationship of dependency between the first applicant, who had no capacity of discernment, and the second applicant, who held parental authority. The applicants added that the affective relationship between the first applicant and her stepfather was real and should be protected. (b) The Court ’ s assessment 57. As regards protection against discrimination, it should be remembered that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not presuppose a breach of those provisions. It is necessary and sufficient that the facts at issue fall within the ambit of at least one of the provisions of the Convention or its Protocols (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)). 58. The Court also reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount ( see Yuri Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Moreover, the Convention does not confer on an individual a right to enjoy any given standard of living ( see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005). 59. As regards the “ family life” aspect of Article 8, the Court observes from the outset that that concept does not include only social, moral or cultural relations; it also comprises interests of a material kind ( see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004). 60. As regards the “ private life ” aspect of Article 8, the Court has already had occasion to observe that it is a broad term which is not susceptible to exhaustive definition. It can sometimes cover the physical and social integrity of the person ( see Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Otgon v. the Republic of Moldova, no. 22743/07, 25 October 2016). 61. The “private life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world ( see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). Finally, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011). 62. In a recent case against Switzerland, the Court considered Article 8 applicable under its “private” aspect, in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the method of calculating the degree of disability used in the case placed individuals wishing to work part-time at a disadvantage compared with those in full-time paid work and those who did not work at all, the Court could not rule out that this method of calculating disability would limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare ( see Di Trizio v. Switzerland, no. 7186/09, § 64, 2 February 2016 ). 63. As regards the present case, the Court acknowledges that Article 8 or the Convention clearly cannot be interpreted as imposing a positive obligation on States to continue to pay social benefits regardless of ordinary residence. On the other hand, the Court also reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 86, ECHR 2009, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In other words, therefore, regard must be had to the specific features of the individual case, particularly the social and family situations in which the applicants find themselves. 64. The applicants relied on respect for their private life, family unity and their autonomy. They argued that the first applicant needed the support of the second applicant, who is living in Brazil with her husband for professional reasons. Furthermore, the first applicant has been under the parental authority of the second applicant since 2009. 65. The Court reiterates from the outset that although both applicants are adults, the first one has been deaf since birth, has difficulty speaking her mother tongue and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life ( see paragraph 8 above ). The requisite care is, precisely, provided by the second applicant, who is not only her mother but also her guardian ( see paragraph 7 above ). Accordingly, the Court considers that in this situation involves “additional factors of dependence, other than normal emotional ties”, which exceptionally bring into play the guarantees that derive from the “family life” aspect of Article 8 between adults ( see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 80, 13 December 2007, and Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). 66. The Court considers that the refusal to pay the pension abroad was liable to affect the organisation of the applicants ’ family life ( see, to that effect, Di Trizio, cited above, § 62). Indeed, they face a situation which requires taking difficult decisions, all of which are likely to impact on their family life: either they decide to enjoy their family life in Brazil, where the second applicant is married, with the consequence of losing entitlement to the benefits; or they decide to retain their entitlement to the pension; in the latter hypothesis, the second applicant must choose between separation from her daughter, over whom she holds parental authority but who must of necessity live in Switzerland in order to receive the benefits, and separation from her husband, who cannot, for professional reasons, be expected to leave Brazil. 67. Having regard to the foregoing considerations, the applicants ’ complaint falls within the ambit of Article 8. It follows that Article 14 of the Convention, read in conjunction with Article 8, is applicable in the present case. 2. Whether there has been a violation of Article 14 read in conjunction with Article 8 (a) The parties ’ submissions (i) The applicants 68. Citing the judgment delivered in the case of Glor, the applicants alleged a violation of Article 14 of the Convention in relation to Article 8 : they argue that the infringement of their private and family life is discriminatory as compared with other disabled persons because the benefits in issue would not have been withdrawn if the first applicant, disabled from birth, had become disabled as the result of an accident sustained as an adult, after having contributed to the social insurance funds, such that in the latter case the applicants would not have been forced to remain in Switzerland on the basis of a “fiscal” criterion. In other words, the question was whether or not the disabled person in question had contributed to the funding of the social benefits. Persons unfortunate enough to have been born with a disability were obliged to retain their habitual residence in Switzerland. 69. The applicants submitted that the ordinary pension was an insurance benefit, whereas the extraordinary pension granted to persons disabled from birth or to persons having become disabled before their 23 rd birthday was considered as a form of social aid funded exclusively by the Swiss Confederation rather than from insured persons ’ contributions. They noted that it had been a political decision based on purely financial considerations which had led the Swiss legislature to determine that only the ordinary pension would be exportable, in the face of opposition from organisations defending the rights of persons with disabilities. In particular, at the time of the 5 th revision of the LAI, whereas an initial draft had included the possibility of exporting the extraordinary pension, the final draft had dropped all mention of it. 70. The applicants also alleged that the organisations protecting persons with disabilities had constantly emphasised that authorisation to export extraordinary pensions would relieve the financial burden on the public authorities. In view of the low level and high costs of treatment in Switzerland, beneficiaries of the pension usually had to have recourse to supplementary benefits financed by the ( Federal and / or Cantonal ) authorities. They added that authorising such exportation would help alleviate public finances. 71. According to the first applicant, referring in particular to Covenant I ( see paragraph 28 above ), the European consensus was that special attention should be paid to disabled persons as a vulnerable category in order to promote their integration. They added that the recent social and legal progress in the Council of Europe, in the Court ’ s case-law and in the international texts towards enhanced protection of the dignity and autonomy of persons with disabilities, of their right to maintain control over their own lives and of their right to live in the community rather than in an institution, was beyond dispute. 72. The applicants considered that the Swiss system, in principle and per se, created a discriminatory situation to the detriment of the freedom of movement, autonomy and the family life of persons disabled and powerless since birth, and, by extension, of their families, where they must leave Switzerland for family, economic and/ or administrative reasons. That amounted to a disproportionate interference with their family life, because a separation, an emotional abandonment would be required to enable the disabled person to retain the same quality of life, whereas that would not have been the situation if payment of the pensions had continued, as in the case of a person who had become disabled as a result of an accident. 73. The applicants submitted that the decision, which had been based on financial reasons, not to allow exportation of the extraordinary pension created a difference of treatment devoid of any objective and reasonable justification for the purposes of Article 14 of the Convention, between persons disabled from birth and persons having become disabled after their 23 rd birthday. 74. The applicants also alleged that their family ties and their social milieu were in Brazil and not in Switzerland. They further stated that the withdrawal of the pension and allowance was having a serious effect on their everyday lives. In the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing for the first applicant. They explained that the cash benefits received by the first applicant had covered the costs of recruiting a homecare nurse and that without such income it was no longer possible to recruit such a nurse. 75. Moreover, the applicants affirmed that they had had enormous difficulties in finding a buyer for their hotel in Brazil. They argued that until the second applicant and her husband found someone to take over the hotel, they would find it very risky and difficult to leave Brazil. They further complained that a forced departure would have extremely serious, nay grievous effects on both applicants in psychological terms. Furthermore, the first applicant would lose her independence and autonomy, being no longer able to live in a normal environment. 76. Having regard to the foregoing considerations, the applicants considered that there had been a violation of Article 14 read in conjunction with Article 8 of the Convention. ( ii ) The Government 77. As regards Article 14 of the Convention read in conjunction with Article 8, the Government, noting the universal consensus on the necessity of protecting disabled persons against any form of discrimination, nevertheless considered, relying on the judgments delivered in the cases of Glor, cited above, and Montoya v. France ( no. 62170/10, 23 January 2014), that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme. However, should the Court decide the opposite, namely that the first applicant ’ s situation was comparable to that of a person having contributed to the insurance scheme, and even assume that the two types of pension (contributory/non-contributory) were not sufficiently different to justify different types of regulations, the Government considered that the different conditions applicable to the two types of pension were justified on grounds inherent in insurance law. 78. As regards the objective justification of the unequal treatment, the Government considered that the aim of the distinction was to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. The preservation of that solidarity mechanism depended on the will and the trust of other people, which required it to be subject to certain limits. Thus the Government considered that the impugned legislation had pursued a legitimate aim, that is, the country ’ s economic well-being. They explained that the social security system was an extremely complex State construction which comprised a balanced and coordinated set of measures to protect the population against the vicissitudes of life. That system operated at considerable cost, which was defrayed by people living in Switzerland. Any change to the rules on the exportation of extraordinary pensions and disability allowances would upset the financial balance of disability insurance. 79. The Government further emphasised that the Swiss social insurance system was based on the “ insurance principle ” and broadly underpinned by the equivalence between the payment of contributions and the right to benefits. Consequently, the Swiss social insurance system could not be expected to provide benefits outside its territory to persons who had not – albeit for reasons beyond their control – directly contributed to the funding of those benefits. 80. The Government pointed out that the extraordinary pension constituted an alternative allowance for persons who did not meet the insurance conditions for entitlement to an ordinary invalidity pension, which meant that it was an instrument for broadening welfare protection. Without such an instrument, persons who had been disabled since birth or since childhood and who therefore did not satisfy the contribution condition would be dependent on social assistance. 81. The Government also explained that not only were the conditions for entitlement to benefits different in the case of extraordinary pensions, but the benefits were also different. The amount of ordinary invalidity pensions granted depended, inter alia, on the insured person ’ s annual income. On the other hand, extraordinary invalidity pensions were, with some reservations, equal to the minimum amount of the corresponding full ordinary pensions, and they did not depend on any loss of earnings or average annual income, but corresponded to a lump sum, that is to say the minimum pension. Similarly, the amount of the disability allowance also did not depend on any loss of income. 82. The Government added that the contributory or non- contributory nature of the pensions was also reflected in the funding of the benefits. Ordinary pensions were funded from social and public contributions. Conversely, extraordinary pensions and the disability allowance were financed exclusively by the Confederation. 83. As regards reasonable justification for the unequal treatment, the Government submitted that Switzerland had a broad margin of appreciation in economic and social matters. They considered that Switzerland had not overstepped that margin, and had, on the contrary, complied with the internationally recognised principles in the sphere of coordination of social security schemes, to the effect that non- contributory benefits were not exported. The Government took the view that there was a consensus in the European countries that non- contributory benefits were not exportable and were therefore paid on the condition of residence in the paying country. 84. In that connection, the Government noted that in the framework of the system for coordinating social security schemes implemented in the European Union and in relations between the EU and Switzerland (Regulation [EU] no. 883/2004, concerning the Agreement between the Swiss Confederation and the European Community and its Member States on the movement of persons [ALCP]), extraordinary invalidity pensions for disabled persons who had not been subject, before their unfitness of work, to Swiss legislation on the basis of an activity as an employed or self-employed person constituted “special non-contributory cash benefits” (Article 70 § 2 of the Regulation) (see paragraph 41 above). Furthermore, extraordinary disability-insurance pensions had been included on the list of that type of benefit (Annex X to Regulation no. 883/224/EC). Consequently, they were granted exclusively in the Member State ( Switzerland ) in which the person in question lived and in accordance with its legislation ( Article 70 § 2 of the Regulation ). The Government recalled, in that regard, that in judgment ATF 141 V 530 of 11 September 2015 the Federal had confirmed that extraordinary invalidity pensions met all the requisite criteria to qualify as special benefits within the meaning of Article 70 § 2 of Regulation no. 883/2004. 85. In the light of the foregoing considerations, the Government submitted that the Swiss legislation making the grant of non-contributory benefits subject to having a private home and ordinary residence in Switzerland was not unreasonable, to the extent that it corresponded to current legislation in the other European countries and to the principles in force in international social security law, including the territoriality principle. It followed that the arrangements for paying the benefits in question, as recognised and accept by the States Parties to the ALCP in the light of the specific features of special non- contributory cash benefits, could not be deemed contrary to the Convention. The Government stated that the same reasoning also applied to the disability allowance (Article 42 ( 1 ) LAI), as the States Parties to the ALCP had recognised the close link with Switzerland on account of the non-contributory nature of that benefit ( see ATF 142 V 2, point 6, and paragraph 42 above ). 86. The Government also submitted that the obligation on Switzerland to adopt social policy measures in order to comply with the international instruments to which it was a Party was of a territorial nature. In other words, Switzerland could not be expected to ensure that social welfare benefits which were funded exclusively from taxation were also paid abroad. The added that the benefits in issue were closely linked to the socio-economic context of Switzerland because they corresponded to the minimum pension payable in that country. Consequently, it was reasonable to restrict them to the Swiss territory. 87. Balancing the competing interests, the Government argued that the first applicant still had the possibility of returning to Switzerland to benefit from the benefits in question. The loss of the benefits had been the consequence of the applicants ’ departure from Switzerland, whereas the legal situation had been clearly that the first applicant would lose her entitlement to an extraordinary invalidity pension and a disability allowance. The Government added that Brazil had ratified the International Covenant on Economic, Social and Cultural Rights and was therefore required to respect the rights set out therein. 88. Having regard to the foregoing considerations, the Government considered that there had been no violation of Article 14 read in conjunction with Article 8 of the Convention. (b) The Court ’ s assessment (i) The applicable principles 89. The Court reiterated that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that this distinction is discriminatory ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997-VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006 ‑ VIII). 90. According to the Court ’ s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim of the impugned measure, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example, Zarb Adami, cited above, § 72; Stec and Others, § 51; Petrovic, cited above, § 30; and Lithgow and Others v. the United Kingdom, 8 July 1986, Series A no. 102, § 177). 91. In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A n. 94). Indeed, Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention ( see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73). 92. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background ( see Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; Stec and Others, cited above, § 52; Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126). 93. Furthermore, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in the respondent State and in Contracting States in general and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States the Convention ( see Glor, cited above, § 75, and Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 66, ECHR 2012). 94. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of the society and its needs, the national authorities were better placed than the international judge to appreciate what was in the public interest in economic or social matters, and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010, and Stec and Others, cited above, § 52). (ii) Application of the principles in the instant case (α) The existence of grounds for discrimination covered by Article 14 95. The applicants, having moved to Brazil, are complaining of discrimination on account of the withdrawal of the first applicant ’ s right to social benefits of a non-contributory nature, payment of which is, by definition linked to permanent residence in Switzerland. They are being treated differently from persons who contributed to the social security system - for example because they only became disabled after having worked for a number of years – and who are entitled to the benefits even if they live abroad. 96. Article 14 lists the precise constituent elements of a “ situation ”, such as race, national or social origin and birth. However, the list set out in this provision is indicative, and not limitative, in nature, as witness the expression “any ground such as” (“ notamment ” in the French version) (see Engel and Others v. the Netherlands, 8 June 1976, § 72; Carson and Others, cited above, § 70; and Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016), as well as the expression in the list “any other status” (“ toute autre situation ” in the French version). The expression “ any other status ” has generally been regarded as a broad interpretation ( see Carson and Others, cited above, § 70, and Biao, cited above, § 89) which is not limited to different treatment based on characteristics which are personal in the sense that they are innate or inherent ( see Clift v. the United Kingdom, no. 7205/07, §§ 56-58, 13 July 2010, and Biao, cited above, § 89). 97. The Court further specifies that the second applicant is not herself a disabled person, but instead states that she is the victim of unfavourable treatment on the grounds of the type of disability affecting her daughter ’ s, with whom she lives, whom she provides with healthcare and who is under her guardianship ( see paragraph 7 above ). Moreover, since her daughter has no capacity of discernment, the second applicant, as her guardian, necessarily originated the domestic proceedings to which both applicants were admitted as parties by the Swiss courts. The Court therefore considers that the second applicant can claim to be a victim, at least indirectly or by association ( see, to that effect, Guberina v. Croatia, no. 23682/13, §§ 76-79, 22 March 2016), of the alleged discrimination. 98. Having regard to the foregoing considerations, the Court considers that the two applicants can rely on grounds of discrimination covered by Article 14. In the present case, the discrimination relates to the nature of the first applicant ’ s disability, in conjunction with the (contributory or non-contributory) type of the impugned benefits, and is accordingly covered by Article 14.  In relevantly similar situations 99. The Court reiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context ( see Fábián v. Hungary [GC], no. 78117/13, § 121, 5 September 2017). It notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question (ibid. ). 100. As regards the field concerned, the Court observes that the case concerns the exportability of a invalidity pension. It raises therefore, on the one hand, issues of a general nature in the economic and social sphere, in which the State has a broad margin of discretion; on the other hand, it involves an allegation of discrimination against a severely disabled person, and therefore a particularly vulnerable group of persons who have suffered, and are still suffering, major inequalities. 101. In connection with the purpose of the measure, the applicants consider that they have been discriminated against as compared to disable persons who, in particular following an accident or illness, are entitled to export their invalidity pensions. The Government submitted that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme. The Court considers that the aim of these two types of pension is to guarantee disability income in two different types of situation : in the case of the ordinary invalidity pension for persons having contributed to the invalidity insurance system, and in the case of the disability allowance and the extraordinary invalidity insurance pension for persons who have not contributed to the invalidity insurance system. The Court takes the view that as regards the comparability of these two situations, the mere fact that the applicants have not contributed to the system is not decisive. On the other hand, that fact will be taken into account in the reasons given for the unequal treatment, which will be examined below ( see paragraphs 104-114). 102. The Court accordingly considers that although the situation of the first applicant, who has been disabled since birth and is the beneficiary of an extraordinary invalidity insurance pension and a disability allowance (which are not exportable) is not identical to that of a person benefiting from an (exportable) ordinary invalidity insurance pension, but is sufficiently comparable to the latter situation. The Court holds that she sustained unequal treatment. It remains to be seen whether the Government can advance any objective and reasonable justification for that state of affairs. γ) The existence of a justification for the unequal treatment 103. The Government submitted that the fact that a person had or had not contributed to the invalidity insurance scheme was valid justification for differentiated treatment under Article 14. The Court agrees, and considers that contributing or not contributing to the scheme constitutes an objective justification for the unequal treatment, even though the differentiation is in fact based on the first applicant ’ s disability, in other words a condition over which she has no control. 104. As regards the reasonableness of the justification for the unequal treatment, the Court emphasises from the outset that the applicants did not complain of discrimination as compared to non-disabled persons, but rather that they felt discriminated against as compared with persons who, having contributed to the invalidity insurance scheme, have become disabled and can export their pensions abroad. 105. The applicants alleged that their family ties and their social relations were in Brazil and not in Switzerland, that the withdrawal of the pension and allowance had severely affected their everyday lives and that in the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing medical care for the first applicant. They also mentioned their enormous difficulties in finding a buyer for their hotel in Brazil, and alleged that a forced departure would have extremely serious effects on both applicants in psychological and emotional terms. 106. The Court is not convinced that those allegations were duly relied upon before the domestic authorities. At all events, it reiterates that those disadvantages originated in the decision freely taken by the second applicant to leave Switzerland, despite the clear legislation providing for the non- exportability of the extraordinary invalidity insurance pension and the disability allowance. The applicants ought therefore to have expected those benefits to be withdrawn. They do not argue that the legal bases for withdrawing the benefits were unforeseeable or inaccessible. 107. It should also be remembered that the applicants, Swiss national, are perfectly entitled to resettle in Switzerland. Moreover, it transpires from the case file that the first applicant paid regular visits to her father in Switzerland. That being the case, it cannot be claimed that resettling in Switzerland, in which country they spent most of their lives, would pose insuperable problems for the applicants. On the contrary, contacts between the first applicant and her father, who lives in Switzerland, would even be made easier. 108. As regards the interests of the respondent State, the Court does not regards it as incompatible with the Convention to link up the grant of the extraordinary invalidity insurance pension and the disability allowance with the ordinary residence criterion, in particular inasmuch as Article 8 does not secure entitlement to a pension or a social benefit of a specified amount. 109. That is, in fact, confirmed by a comparison of the solutions used in other Council of Europe member States. The Court reiterates that it may examine the situation in other member States in respect of the issues at stake in a given case in order to assess whether there exists a “European consensus” or at least a certain trend among the member States ( see, mutatis mutandis, Naït ‑ Liman v. Switzerland [GC], no. 51357/07, § 175, ECHR 2018; Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011; and Hämäläinen v. Finland [GC], no. 37359/09, §§ 72-75, ECHR 2014). 110. In that regard, the Court considers that the following conclusions may be drawn from the analysis of comparative law and of European Union law : first of all, it would appear that the distinction between contributory and non- contributory benefits is indeed confirmed in the Council of Europe member States ( see paragraph 31 above ) and represents the general rule in European law ( see paragraphs 32-39 above ). There is, therefore, nothing unusual or arbitrary about it. Secondly, the classification as “non- contributory benefits” of the two benefits in issue in the present case, to wit, an extraordinary invalidity pension and a disability allowance, is in conformity with the practice of Council of Europe member States and with EU law. Thirdly, it cannot be overlooked that the fact of making entitlement to non-contributory benefits subject to a condition of residence in the paying country is the general rule in almost all the member countries of the Council of Europe and in all three Council of Europe non-member States compared (see paragraph 31 above). That solution was also adopted by the European Union in Regulation 883/2004/ EC of 29 April 2004 ( see paragraph 36 above ). It follows that the approach adopted in the instant case by the Swiss authorities tallies with the solutions used in the Council of Europe and the European Union. 111. Having regard to the foregoing considerations, the first applicant ’ s interest in receiving the impugned benefits under the same conditions as persons having contributed to the system must yield to the public interest of the respondent State, consisting in guaranteeing the principle of social insurance solidarity, which is particularly important in the case of a non- contributory benefit, even if the reason why the first applicant never contributed to the system was completely beyond her control or influence. In that regard, the Court considers particularly relevant the Government ’ s argument to the effect that a non-contributory benefit is supposed to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. However, it is not contrary to the Convention to hold that the preservation of that solidarity mechanism depends on the will and the trust of other people, which requires the grant of benefits to be subject to certain conditions, for example requiring beneficiaries to have their ordinary residence in Switzerland. It is reasonable for a State granting non-contributory benefits not to wish to pay them abroad, particularly if the cost of living in the foreign country in question is considerably lower. 112. Having regard to the broad margin of appreciation in the economic and social spheres and to the principle that the Court respects, a priori, the State ’ s judgment as to what is in the general interest, the Court concludes that the justification for the unequal treatment put forward by the Government is not unreasonable. 113. It follows that there has been no violation of Article 14 read in conjunction with Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE Admissibility 1. The parties ’ submissions 114. The applicants also alleged a violation of Article 8 taken alone. 115. As regards the existence of the interference, the applicants submitted that they shared extremely strong family ties and that the lack of benefits would force the first applicant to return to Switzerland, far from her next-of-kin; if the second applicant had to follow her, she would have to leave her husband behind in Brazil. 116. As regards the legitimate aim of the interference, the applicants stated that the well-being of the domestic economy should be less important than the deprivation of the personal autonomy of the first applicant, who would have to be provided for in an expensive institution should she de return to Switzerland alone. 117. For the reasons cited under Article 14, they considered that the impugned measure had not been necessary in a democratic society. 118. The Government invited the Court to declare the complaint under Article 8 inadmissible, as principal submission, for incompatibility ratione materiae with the Convention pursuant to Article 35 § 3 ( a) of the Convention, and in the alternative, as being manifestly ill- founded. 119. The Government submitted that Switzerland had in no way interfered with the decision of the second applicant and her husband, accompanied by the first applicant, to settle in Brazil in order to manage their hotel; furthermore, the applicants were free to resettle in Switzerland in order to regain entitlement to the impugned benefits. 120. The Government considered that the measure geared to maintaining the solidarity mechanism underpinning the system – which is well known in the system for coordinating social security schemes – of non-exportable non- contributory benefits funded from tax resources, protected the country ’ s economic well-being and the rights and freedoms of others. 121. The Government further noted that it had not been established that departure from Brazil would be extremely unsafe; in the event of a return to Switzerland, even though no country could be expected to protect people from all the vicissitudes of life, the first applicant would be surrounded by her father and her family, which ruled out automatic institutionalisation and loss of autonomy. 2. The Court ’ s assessment 122. Having regard to the applicability of Article 14 read in conjunction with Article 8 ( see paragraphs 57-67 above ), the Court has noted that the applicants ’ complaint falls within the ambit of Article 8. For essentially the same reasons, it considers that that provision is applicable to the present complaint. 123. The Court considers that the refusal to pay the benefits abroad amounts to an interference with the applicants ’ rights as secured under Article 8 in so far as the impugned pensions are liable to have repercussions on the organisation of the two applicants ’ family life, as explained in the section on the applicability of Article 14 of the Convention ( see paragraphs 65-66 above ). 124. On the other hand, it considers that the interference was prescribed by law, in particular under the LPGA and the LAI ( see paragraphs 19-27 above ) and that it pursued a legitimate aim, that is to say social insurance solidarity, which is relevant to the protection of the rights of others and the economic well-being of the country within the meaning of Article 8 § 2 of the Convention. The Court also holds that the interference was necessary in a democratic society and was proportionate to the aims sought to be achieved. As regards this latter factor, the Court does not consider it unreasonable to make the payment of non-contributory benefits subject to ordinary residence in Switzerland. 125. It follows from the foregoing considerations that this complaint is manifestly ill- founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention.
The Court held that there had been no violation of Article 14 (prohibtion of discrimination) of the Convention taken together with Article 8 (right to respect for private and family life), as it did not consider it contrary to the Convention for the payment of non-contributory benefits to be made subject to a condition of habitual residence in Switzerland. It found in particuliar that the first applicant’s interest in obtaining the benefits in question under the same conditions as persons who had contributed to the scheme should yield to the public interest of the State in guaranteeing the principle of solidarity in social-insurance schemes, which was especially important with regard to non-contributory benefits; this was so even though the reason why the applicant had not contributed to the scheme was entirely beyond her control or sphere of influence.