Reasoning in support of a judgment based on difference of sex
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Invalidity insurance 31. Invalidity insurance is governed by two federal statutes - the Old Age and Survivors ’ Insurance Act of 20 December 1949 ("OASIA") and the Invalidity Insurance Act of 19 June 1959 ("IIA"). 1. The insured 32. Invalidity insurance is compulsory for all persons resident in Switzerland (section 1 OASIA). Certain other people may contribute on a voluntary basis, notably Swiss nationals living abroad (section 2 OASIA). 2. Administration 33. Invalidity insurance is managed by cantonal and occupational associations under the supervision of the Confederation (sections 49-73 OASIA and sections 53-67 IIA). 3. Financing 34. At the present time invalidity insurance is financed partly from employers ’ and insured persons ’ contributions and partly from contributions by the State, in roughly equal proportions. There is no ceiling on contributions. Those paid by the insured are automatically deducted from earnings. Children, wives and widows of insured persons are exempted if not working, whereas others not gainfully employed pay from 43 to 1,200 Swiss francs a year (section 3 IIA and section 3 OASIA). 4. The pensions 35. Section 28 IIA deals with the assessment of incapacity. Provision is made in subsection 1 for pensions to be graduated in proportion to the degree of incapacity: a full pension is granted where incapacity is at least 66.66% and a half-pension where it is less than 50%. At the material time, 33.33% incapacity entitled a person to a half-pension only "in cases of hardship"; today incapacity must be at least 40% for a person to be eligible for a quarter-pension. Subsection 2 provides: "For the assessment of incapacity, the income which the insured person could earn after becoming incapacitated and after taking any appropriate rehabilitation measures from work that could reasonably be expected of him in a stable labour market is compared with the income he could have earned if he had not been incapacitated." The amount of the pension is based on the insured ’ s annual average income, which is calculated by dividing the total income taken as a basis for assessing contributions by the number of contribution years (sections 36 et seq. IIA, taken together with sections 29 et seq. OASIA). For full ordinary pensions the maximum amount is double the minimum amount. Contributions are enforceable and the right to claim them is subject to a limitation period of five years (sections 15 and 16 OASIA). B. Appeal procedure 1. Access to the file 36. The Federal Court has derived from Article 4 of the Federal Constitution, which enshrines the principle of equality, an individual ’ s right to inspect his case file lodged with a judicial body. The right in question means being given an opportunity to have access to the official documents and to take notes but not to take the file away or to demand that copies should be made and handed over (judgment of 31 March 1982, Judgments of the Swiss Federal Court (ATF), vol. 108, part Ia, pp. 5-9). On this last point the Federal Court has, however, accepted that individuals may ask for copies, provided that this does not entail an excessive amount of work or substantial expense for the authority concerned (judgment of 4 September 1986, ATF, vol. 112, part Ia, pp. 377-381). 2. Hearings (a) Before appellate bodies 37. Section 85(2)(e) OASIA, first sentence, provides: "If the circumstances so warrant, the parties shall be summoned to a hearing." (b) In the Federal Insurance Court 38. Under Rule 14 para. 2 of the Federal Insurance Court ’ s Rules of Procedure, "The parties shall not have a right to demand a hearing in appeal proceedings. By agreement with the division, the presiding judge may order a hearing to be held, on an application by one of the parties or of his own motion. The parties may inspect the file before the hearing ..." 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 para. 1 of the Convention) (art. 6-1) 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 had health problems, amounted to discrimination on the ground of sex (Article 14 taken together with Article 6 para. 1) (art. 14+6-1). 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) (art. 31), the Commission expressed the opinion that (a) there had been no breach of Article 6 para. 1 (art. 6-1) 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 para. 1 (art. 14+6-1) (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 to this judgment [*] FINAL SUBMISSIONS TO THE COURT 41. In their memorial the Government requested the Court to "hold that in the present case (in so far as Article 6 para. 1 (art. 6-1) 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 para. 1 (art. 6-1) 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 para. 1 (art. 6-1) of the Convention"; (b) "hold that there has been a breach of Article 6 para. 1 (art. 6-1) 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 para. 1 (art. 14+6-1) of the Convention". AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) 43. Mrs Schuler-Zgraggen claimed to be the victim of breaches of Article 6 para. 1 (art. 6-1), 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 para. 1 (art. 6-1) 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 para. 1 (art. 6-1) 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 para. 1 (art. 6-1) 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, para. 19). As in the two cases decided in 1986, State intervention is not sufficient to establish that Article 6 para. 1 (art. 6-1) is inapplicable; other considerations argue in favour of the applicability of Article 6 para. 1 (art. 6-1) 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 para. 1 (art. 6-1) therefore applies in the instant case. B. Compliance with Article 6 para. 1 (art. 6-1) 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, so 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 the 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 not 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, paras. 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 para. 1 (art. 6-1) in this respect. 2. Federal Insurance Court hearing 53. Mrs Schuler-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, para. 45). (b) Merits of the complaint 56. Mrs Schuler-Zgraggen submitted that the Federal Insurance 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 fields 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 brought before it the Federal Insurance 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 (art. 6-1). 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 Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, para. 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 para. 2 - see paragraph 38 above). As the 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. Systematically 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, para. 90) and could ultimately prevent compliance with the "reasonable time" requirement of Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235-D, pp. 82-83, para. 39). There has accordingly been no breach of Article 6 para. 1 (art. 6-1) in respect of the oral and public nature of the proceedings. 3. Independence of the medical experts 59. At the hearing before the 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, para. 75). II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 6 PARA. 1 (art. 14+6-1) 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 (art. 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 on 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 up work even if she had not had health problems. The applicant considered that 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 para. 1 (art. 6-1) and thus, indirectly, Article 14 (art. 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 Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, para. 43, and the Edwards v. the United Kingdom judgment previously cited, pp. 34-35, para. 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, it 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, para. 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 para. 1 (art. 14+6-1). III. APPLICATION OF ARTICLE 50 (art. 50) 68. Under Article 50 (art. 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 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. 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 (art. 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 para. 1 and 14 (art. 6-1, art. 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 paras. 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 Stöckli : 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 of 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 (art. 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 want of any reasonable and objective justification, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 6 § 1 (right to a fair trial) of the Convention. It noted in particular that the Federal Insurance Court had adopted in its entirety the Appeals Board’s assumption that women gave up work when they gave birth to a child and had not attempted to probe the validity of that assumption itself by weighing arguments to the contrary.  As worded in the Federal Court’s judgment, the assumption could therefore not be regarded – as asserted by the Swiss Government – as an incidental remark, clumsily drafted but of negligible effect. On the contrary, it constituted the sole basis for the reasoning, thus being decisive, and introduced a difference of treatment based on the ground of sex only.