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
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
Having deliberated in private on 30 January and 28 May 1993,
Delivers the following judgment, which was adopted on the
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
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
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
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
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
17. The Board dismissed the latter application on 7 May.
18. On 22 May Mrs Schuler-Zgraggen dispensed with the services of
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
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
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
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
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).
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
Contributions are enforceable and the right to claim them is
subject to a limitation period of five years (sections 15 and 16
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
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,
(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
"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);
(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
(b) "hold that there has been a breach of Article 6 para. 1
(art. 6-1) with respect to the right to an adversarial
(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
Article 6 para. 1 (art. 6-1) therefore applies in the instant
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
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
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
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
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."
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
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
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
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
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
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
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;
(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
Signed: Marc-André EISSEN
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: M.-A. E.
DISSENTING OPINION OF JUDGE GÖLCÜKLÜ
CONCERNING ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 6 PARA. 1
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
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).