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You are here: BAILII >> Databases >> European Court of Human Rights >> SCHULER-ZGRAGGEN v. SWITZERLAND - 14518/89 [1993] ECHR 29 (24 June 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/29.html Cite as: (1993) 16 EHRR 405, [1993] ECHR 29, 16 EHRR 405

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In the case of Schuler-Zgraggen v. Switzerland*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Bernhardt, President,

Mr F. Gölcüklü,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr I. Foighel,

Mr A.N. Loizou,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 30 January and 28 May 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 17/1992/362/436. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Government of the Swiss

Confederation ("the Government") on 25 May and 5 August 1992, within

the three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 14518/89) against the Swiss Confederation lodged with

the Commission under Article 25 (art. 25) by a Swiss national,

Mrs Margrit Schuler-Zgraggen, on 29 December 1988.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Switzerland

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Articles 45, 47 and

48 (art. 45, art. 47, art. 48). The object of the request and of the

application was to obtain a decision as to whether the facts of the

case disclosed a breach by the respondent State of its obligations

under Article 6 para. 1 (art. 6-1), taken alone or together with

Article 14 (art. 14+6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

she wished to take part in the proceedings and designated the lawyer

who would represent her (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of

the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 29 May 1992, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr B. Walsh, Mr C. Russo, Mr A. Spielmann,

Mr I. Foighel, Mr A.N. Loizou, Mr M.A. Lopes Rocha and Mr B. Repik

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

From 1 January 1993 onwards Mr F. Gölcüklü, substitute judge, replaced

Mr Repik, whose term of office had ended with the dissolution of the

Czech and Slovak Federal Republic (Articles 38 and 65 para. 3 of the

Convention and Rules 22 para. 1 and 24 para. 1) (art. 38, art. 65-3).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Deputy Registrar, consulted the

Agent of the Government, the Delegate of the Commission and the

applicant's lawyer on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the orders made in consequence,

the Registrar received the Government's and the applicant's memorials

on 2 and 4 November 1992 respectively. On 3 December the Secretary to

the Commission informed the Registrar that the Delegate would submit

his observations at the hearing.

On 31 August 1992 the President had given the applicant leave

to use the German language (Rule 27 para. 3).

5. On 18 December the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

26 January 1993. The Court had held a preparatory meeting beforehand.

Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal,

who was unable to take part in the further consideration of the case

(Rule 21 para. 5, second sub-paragraph).

There appeared before the Court:

(a) for the Government

Mr O. Jacot-Guillarmod, Assistant Director

of the Federal Office of Justice, Agent,

Mr R. Spira, Judge of the Federal Insurance Court,

Mr F. Schürmann, Deputy Head of the European Law and

International Affairs Section,

Federal Office of Justice, Counsel;

(b) for the Commission

Mr F. Martinez, Delegate;

(c) for the applicant

Mr L. Minelli, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Jacot-Guillarmod and Mr Spira

for the Government, Mr Martinez for the Commission and Mr Minelli for

the applicant, as well as replies to its questions.

AS TO THE FACTS

I. The circumstances of the case

7. Mrs Margrit Schuler-Zgraggen, a Swiss national born in 1948,

was married in 1972. She lives at Schattdorf in the Canton of Uri.

A. Granting of an invalidity pension

8. In 1973 she began to work for the industrial firm of D. at

Altdorf (Canton of Uri). Her employer regularly deducted contributions

to the federal invalidity-insurance scheme from her wages (see

paragraph 33 below).

9. In the spring of 1975 she contracted open pulmonary

tuberculosis.

On 29 April 1976 she applied for a pension on the grounds of

incapacity for work due to her illness.

The Compensation Office (Ausgleichskasse) of the Swiss Machine

and Metal Industry (Schweizerische Maschinen- und Metallindustrie)

decided on 24 September 1976 to grant her half an invalidity pension

for the period from 1 April to 31 October 1976.

10. On 28 September 1978 the D. company dismissed the applicant

with effect from 1 January 1979 on account of her illness.

11. After Mrs Schuler-Zgraggen had made a further application for

a pension, the Compensation Office determined on 25 March 1980 that she

was physically and mentally unfit for work and decided to pay her a

full pension with effect from 1 May 1978.

In 1981 and 1982 the invalidity-insurance authorities reviewed

her case and confirmed the award of a pension.

12. On 4 May 1984 the applicant gave birth to a son.

B. The proceedings before the Invalidity Insurance Board of the

Canton of Uri

1. The medical examinations

13. In 1985 the Invalidity Insurance Board (IV-Kommission) of the

Canton of Uri asked Mrs Schuler-Zgraggen to undergo an examination at

the invalidity-insurance authorities' medical centre (Medizinische

Abklärungsstelle der Invalidenversicherung) in Lucerne.

14. The medical centre asked Drs F. and B. for two reports

(Konsilien) on the applicant's health - one on the state of her lungs

and the other a psychiatric report - and these were sent in on 10 and

24 December 1985 respectively. The centre prepared a summary on

14 January 1986, to which it attached Dr B.'s report; it concluded that

the applicant was wholly unfit for clerical work and assessed her

fitness for household work at 60-70%.

2. The decision of 21 March 1986

15. On 21 March 1986 the Invalidity Insurance Board cancelled, with

effect from 1 May 1986, Mrs Schuler-Zgraggen's pension, then amounting

to 2,016 Swiss francs (CHF) a month, as her family circumstances had

radically changed with the birth of her child, her health had improved,

and she was 60-70% able to look after her home and her child.

C. The proceedings before the Canton of Uri Appeals Board for Old

Age, Survivors' and Invalidity Insurance

1. The appeal and the applications for access to and

handing over of documents

16. On 21 April 1986 Mrs Schuler-Zgraggen lodged an appeal

(Beschwerde) with the Canton of Uri Appeals Board for Old Age,

Survivors' and Invalidity Insurance (Rekurskommission für die Alters-,

Hinterlassenen- und Invalidenversicherung - "the Appeals Board"). She

claimed a full invalidity pension or, failing that, a half-pension,

arguing, in particular, that the Federal Invalidity Insurance Act

conferred on her the right to a pension so long as she was at least

66.66% incapacitated. So as to continue receiving her pension, she

also asked the Board to order that her appeal should have suspensive

effect.

17. The Board dismissed the latter application on 7 May.

18. On 22 May Mrs Schuler-Zgraggen dispensed with the services of

her counsel.

19. On 26 May she went to the Invalidity Insurance Board's

headquarters to inspect her medical file, which had been sent there by

the Appeals Board, but she was not allowed to see it.

On the same day she wrote to the Invalidity Insurance Board to

complain about this and to demand to be able to see the file or at

least a photocopy of certain important documents.

In a letter of 28 July 1986 to the same board she again sought

permission to inspect the file, in particular "all the medical reports,

records of examinations and results of laboratory tests from 1975 to

1986", and the handing over of vital documents.

2. The decision of 8 May 1987

20. The Appeals Board dismissed the appeal on 8 May 1987.

In the first place, the right to inspect the file did not imply

a right to take documents away or to have photocopies made of them.

It sufficed that the appellant had had an opportunity to study her file

at the Appeals Board registry; she had not availed herself of that

opportunity, despite numerous invitations to do so.

In the second place, it could not be discounted that even if

the appellant had been fit, she would have been content with looking

after her home once her child had been born. At all events, having

regard in particular to the examinations carried out by the medical

centre, the invalidity in question was not enough, in the case of a

mother and housewife, to make her eligible for a pension.

Mrs Schuler-Zgraggen was in a position to be more active if she really

wished to work despite her new family circumstances. The refusal to

pay a pension could help her recover from her neurotic obsession with

being unable to work.

3. The subsequent proceedings

21. On 11 August 1987 Mrs Schuler-Zgraggen wrote to the Appeals

Board. She said she needed all the documents and expert reports in

order to assess the prospects of succeeding in her legal action. She

referred to a perfusion scintigram, a lung-function test, blood-gas

analyses and a plethysmogram.

22. In a letter of 13 August the Appeals Board replied as follows:

"... [T]hese documents provided the basis for the various

medical reports. They are in our file only because of the

right of inspection granted to you. We are therefore unable

to make further documents available to you."

D. The proceedings in the Federal Insurance Court

1. The administrative-law appeal

23. On 20 August 1987 Mrs Schuler-Zgraggen lodged an

administrative-law appeal with the Federal Insurance Court against the

decision of the Appeals Board. She applied for a full pension or, in

the alternative, an order remitting the case to the authority of first

instance. She also sought leave to inspect the whole of her file

(vollumfängliches Akteneinsichtsrecht).

24. The Federal Insurance Court received observations from the

Compensation Office's invalidity-insurance department on 20 October

1987 and from the Federal Social Insurance Office on 9 November. The

Compensation Office submitted that the invalidity pension should cease;

the Federal Social Insurance Office argued that the appeal should be

dismissed, relying on a report by its own medical service, which

referred in particular to the examination carried out by the medical

centre.

25. In a letter of 23 November 1987 the Federal Court informed the

applicant that her complete file had been sent to the Appeals Board,

which "within the next fourteen days [would] make all the documents

available [to her] for inspection". She would then have a further ten

days in which to supplement her administrative-law appeal submissions.

26. On 30 November 1987 Mrs Schuler-Zgraggen inspected her file and

photocopied a number of documents. On 1 December the file was returned

to the Federal Insurance Court.

27. Mr Schleifer, a lawyer, wrote to the Federal Court on

7 December to inform it that he would henceforth be representing the

applicant and to ask for the case file to be forwarded to him; this was

done on 11 December.

28. On 11 January 1988 Mrs Schuler-Zgraggen filed supplementary

pleadings in support of her appeal. They included a complaint that the

medical centre took it for granted in its expert opinion that her lungs

functioned normally, relying on the report of Dr F., which was not in

the file however. She also criticised the arbitrariness of the Appeals

Board's opinion that even if she had been fit, she would have devoted

herself to household tasks because of the birth of her child.

2. The judgment of 21 June 1988

29. The Federal Insurance Court gave judgment on 21 June 1988,

holding that since 1 May Mrs Schuler-Zgraggen had been 33.33%

incapacitated and was therefore eligible for a half-pension if she was

in financial difficulties, and that as there was no evidence before it

on this point, the case should be remitted to the Compensation Office.

In such a case the court's function was not limited to

reviewing compliance with federal law and ascertaining that judicial

discretion had not been exceeded or misused; it could also review the

appropriateness of the impugned decision, and was bound neither by the

facts found by the court below nor by the parties' claims.

The applicant had succeeded in her complaint that the Appeals

Board had failed to produce all the documents for inspection; she had

been able to argue her case in the Federal Court, whose file she had

had an opportunity to examine and which had considered the facts and

the law with complete freedom.

As to the pension claim, the court said:

"Regard must ... be had to the fact that many married women

go out to work until their first child is born, but give up

their jobs for as long as the children need full-time care and

upbringing. This assumption based on experience of everyday

life - experience which must be duly taken into account in

determining the method to be applied for assessing incapacity

... - must be the starting-point in the present case. At the

time the contested decision was taken, on 21 March 1986 ...,

the child, who was born on 4 May 1984, was just under two years

old, and accordingly, on the balance of probabilities (nach dem

Beweisgrad der überwiegenden Wahrscheinlichkeit)..., it must

be assumed that the applicant, even if her health had not been

impaired, would have been occupied only as a housewife and

mother."

In the court's view, this made it unnecessary to examine

whether Mrs Schuler-Zgraggen was fit to work in her previous

employment; the question was rather one of determining to what extent,

if at all, she had been restricted in her activities as a mother and

housewife. Here it was sufficient to rely on the expert opinion

produced by the medical centre. The fact that the lung specialist's

report was missing from the file was a defect (ein gewisser Mangel),

but the examination carried out by the specialist in internal medicine

made it possible to answer the question whether after 1980 there had

been any change in the state of the applicant's lungs. After that date

the applicant had no longer been treated for tuberculosis and in that

respect was perfectly fit to work. As to her neurosis, it had much

diminished in the meantime; and a handicap resulting from her back

problems could in theory be assessed at 25% at most.

30. On 17 July 1989 the Compensation Office decided that

Mrs Schuler-Zgraggen could not claim a half-pension since her income

in 1986, 1987 and 1988 had greatly exceeded the maxima applicable in

those years to "cases of hardship" (see paragraph 35 below).

The applicant did not appeal.

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*

_______________

* 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 available from the registry.

_______________

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 THESE REASONS, THE COURT

1. Holds unanimously that Article 6 para. 1 (art. 6-1) applied in

the case;

2. Dismisses unanimously the Government's preliminary 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 para. 1 (art. 6-1);

5. Holds by eight votes to one that there has been a breach of

Article 14 taken together with Article 6 para. 1 (art. 14+6-1);

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 (art. 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.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 24 June 1993.

Signed: Rudolf BERNHARDT

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinions of Mr Gölcüklü and Mr Walsh are annexed to this judgment.

Initialled: R.B.

Initialled: M.-A. E.

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

CONCERNING ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 6 PARA. 1

(art. 14+6-1)

(Translation)

To my great regret, I cannot share the majority's opinion as

to the application of Article 14 taken together with Article 6

para. 1 (art. 14+6-1) of the Convention.

On this particular point the applicant criticised the Federal

Insurance Court's ruling on the decisive issue, namely for having

reached the conclusion - based, according to the reasons it gave, on

experience of life - that during the period in question (after the

birth of her child) her activities would very probably have been

limited to the role of mother in the matrimonial home if her health had

been good.

This complaint of discrimination against her on the ground of

sex, directed at a point of fact, is an issue of substance, whereas

Article 6 para. 1 (art. 6-1) establishing the principle of a fair

trial, being procedural in nature, relates only to formal issues.

In sum, what the applicant was challenging in the instant case

was the reasons put forward by the Federal Insurance Court when it

ruled on her appeal and not the fact of having suffered discrimination

in the course of the proceedings in the national courts on account of

belonging to the female sex; nor was any principle or standard of a

fair trial infringed in regard to her.

I therefore conclude that there has been no breach of

Article 14 taken together with Article 6 para. 1 (art. 14+6-1) on the

ground of sex discrimination against the applicant.

PARTLY DISSENTING OPINION OF JUDGE WALSH

1. In my opinion there has been a breach of Article 6 para. 1

(art. 6-1) of the Convention, concerning access to the Appeals Board's

file. That must necessarily include documents which should have been

in it - namely, the pulmological report, which in fact was not in the

file. That document was within the procurement of the Appeals Board

and its non-availability to the applicant put her at a disadvantage.

2. I am also of the opinion that there was a breach of

Article 6 para. 1 (art. 6-1) by reason of the absence of an oral

hearing in accordance with that Article (art. 6-1). The Rules of

Procedure of the Federal Insurance Court provide for an oral hearing

either on the application of the party or on the motion of the

presiding judge. The Convention requires such a hearing unless the

parties agree to waive it. The position is similar with regard to the

public nature of the hearing: see Le Compte, Van Leuven and De Meyere

v. Belgium*. No such agreement was secured from the applicant. Indeed

it is not established that she was ever made aware of the possibility.

I do not agree with the view of the majority of the Court (at

paragraph 58 of the judgment) that because the applicant did not

request an oral and public hearing she had "unequivocally waived her

right ...". Article 6 (art. 6) throws no burden on an applicant to

request a public hearing. Her civil rights were in issue. I cannot

agree with the inference contained in the third sub-paragraph of

paragraph 58 of the Court's judgment. The fact that a matter that is

highly technical, even if this was so which is questionable, may induce

the parties to agree to avoid the type of hearing envisaged by

Article 6 para. 1 (art. 6-1) is not a ground for denying such a

hearing, particularly when the applicant had not so agreed.

_______________

Note by the registry: 23 June 1981, Series A no. 43.

_______________

Furthermore the fact that the dispute does not appear to raise

"issues of public importance" is not a condition precedent to the

operation of Article 6 para. 1 (art. 6-1). The dispute was undeniably

important to the applicant and she is the party whose protection was

envisaged by that provision of the Convention. The private citizen is

thus enabled to pierce the bureaucratic veil or curtain. The fact that

her private right was created by public law made the application of

Article 6 para. 1 (art. 6-1) all the more important. That such

application may be thought to be inconvenient for the "demands of

efficiency" by the bureaucracy can scarcely be regarded as a

justification for ignoring the requirements of the Article (art. 6-1).

3. I agree with the Court's findings in respect of Article 6 taken

with Article 14 (art. 14+6).