Schuler-Zgraggen v. Switzerland

Application No. 14518/89, (1993) 16 EHRR 405
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Schuler (S), who had contributed to the state invalidity insurance from her wages when working, contracted tuberculosis and was granted an invalidity pension when it was determined that she was unfit for work. She gave birth to a son in 1984 and, after being required to undergo a medical examination, her pension was cancelled with effect from May 1986 as her family circumstances had changed and she was 60-70% able to look after her home and child. Before the hearing of an appeal before the appeals board, for which she was not legally represented, she unsuccessfully sought to see her medical file and the handing over of vital documents. The board dismissed her appeal, finding that she had not availed herself of the opportunity to inspect the file at its registry, that, even if she had been fit, she would have been content with looking after her home once the child had been born and that her invalidity was not enough to make her eligible for a pension. A request to have documents in the file to assess the prospects of succeeding in her action was refused. The insurance court subsequently arranged for the file to be made available for inspection and she photocopied certain documents. It later forwarded the case file to the lawyer then representing her.

The insurance court, without an oral hearing, upheld her complaint that the board had failed to produce all the documents for inspection but dismissed her appeal against the revocation of the pension, basing its decision on the assumption that, even if her health had not been impaired, she would have been occupied only as a housewife and mother. In its view the question was not whether she was fit to work in her previous employment but whether she had been restricted in her activities as a mother and housewife and it considered that any handicap was not sufficient for a pension.

S complained about insufficient access to the file, the absence of a hearing in the insurance court and that court’s assumption that she would have given up work even if she had not had health problems.

The Commission found no breach of Art 6(1) in respect of either (10-5) the failure to hold a hearing or (13-2) access to the file and (9-6) no breach of Art 14 taken together with Art 6. Switzerland objected that S was not a victim because she had not availed herself of the opportunity to examine the file at the board’s registry and that she had not exhausted domestic remedies by applying to the insurance court for a hearing or by making a precise complaint of discrimination to it.

 

[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) that the right to an invalidity pension was an individual, economic right to which Art 6(1) applied;

(2) that, as S's complaint related to having the documents in the file (or copies) handed over, it could not be objected that she had not examined them at the registry;

(3) that, although the proceedings before the board did not enable S to have a complete, detailed picture of the particulars supplied to it, this had been remedied by the insurance court's request that it make all the documents available;

(4) (8-1) that the proceedings, since they were fair overall, did not violate Art 6(1);

(5) that estoppel applied to the objection that S had not sought a hearing in the insurance court since it could have been raised before the admissibility decision;

(6) that S had unequivocally waived her right to a hearing by not applying for one, the dispute did not raise issues of public importance requiring such a hearing and the systematic holding of hearings could prevent compliance with the `reasonable time' requirement in social security cases;

(7) (8-1) that the absence of a hearing did not, therefore, violate Art 6(1);

(8) that it could not consider S's complaint about the independence of doctors bound by a long-term contract to a social security institution as this had not been raised before the ECmHR and did not relate to facts found within the admissibility decision;

(9) that, as S had raised the substance of her complaint about discrimination in her appeal to the insurance court, it could not be objected that she had not exhausted domestic remedies;

(10) that there was no attempt to probe the validity of the assumption that women give up work when they give birth to a child and this was the sole basis for the insurance court's reasoning;

(11) (8-1) that this assumption introduced a difference of treatment based on the ground of sex only without any reasonable and objective justification and was a violation of Art 14 taken together with Art 6(1);

(12) that the finding of a violation was sufficient just satisfaction for any non-pecuniary damage suffered;

(13) (8-1) that the application of Art 50 to S's claim for the loss of the benefit of a full pension should be reserved as the victim of a violation of the ECHR could now apply to reopen proceedings in Switzerland; and

(14) that S should be awarded CHF7,500 in respect of costs and expenses before the ECHR institutions.

 

[Adapted from INTERIGHTS summary, with permission]

"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)."

INTERIGHTS Comment: This decision makes it clear that approaches to the weighing of evidence by the courts which involve differential treatment can fall within the ECHR's prohibition of discrimination when taken with Art 6, even though a decision-maker or a legislator acting in the same way could not be held to be held to have acted unacceptably. The line between these is clearly fine and Judge Golcuklu dissented seeing the complaint as solely a matter of substance. In holding Art 6 applicable to the dispute the Court was mindful that the outcome affected her means of subsistence and followed its view that even welfare assistance is covered by this provision (see Salesi v Italy, Ser A No257-E, (1995) 9 Interights Bulletin 52). It also followed its case law that defects at a lower instance can be cured on appeal (see Edwards v United Kingdom, Ser A No 247-B, (1994) 8 Interights Bulletin 36) in its response to the non-disclosure of the file. Judge Walsh, however, pointed out that this was not entirely the case as the board was not in a position to disclose certain documents not in the file. The rejection of the need for an oral hearing in the insurance court was solely on the basis that the circumstances did not warrant one in the absence of S's own request but it was clearly mindful that a requirement to hold one could have a disastrous effect on the processing of social security cases. Judge Walsh did not consider that S had agreed not to have a hearing and that an issue of public importance should not be a condition precedent to the operation of Art 6(1).
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