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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50) - 14518/89 [1995] ECHR 2 (31 January 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/2.html
Cite as: (1996) 21 EHRR 404, [1995] ECHR 2, 21 EHRR 404
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In the case of Schuler-Zgraggen v. Switzerland (1),
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 Rules of
Court A (2), 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 H. Petzold, Acting Registrar,
Having deliberated in private on 25 May and
25 October 1994 and 25 January 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. 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.
2. Rules A apply to all cases referred to the Court before
the entry into force of Protocol No. 9 (P9) and thereafter
only to cases concerning States not bound by that Protocol
(P9). They correspond to the Rules that came into force on
1 January 1983, as amended several times subsequently.
_______________
PROCEDURE AND FACTS
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.
2. In a judgment of 24 June 1993 ("the principal judgment")
the Court found that there had been a breach of Article 14 of
the Convention taken together with Article 6 para. 1
(art. 14+6-1), as the assumption that women gave up work when
they gave birth to a child had been the sole basis for the
reasoning in a judgment of the Federal Insurance Court and had
introduced a difference of treatment on the ground of sex
only, a difference that lacked any reasonable and objective
justification (Series A no. 263, pp. 20-22 and 24,
paras. 61-67 and point 5 of the operative provisions).
The Court ruled that its judgment constituted in itself
sufficient just satisfaction in respect of the alleged
non-pecuniary damage and that the respondent State was to pay
the applicant, within three months, 7,500 Swiss francs (CHF)
in respect of costs and expenses (ibid., pp. 22-24, paras. 69
and 76 and points 6-7 of the operative provisions).
3. As the question of the application of Article 50
(art. 50) was not ready for decision as regards the pecuniary
damage, it was reserved in the principal judgment. The Court
invited the Government and the applicant to submit their
written observations within six months and, in particular, to
notify the Court of any agreement they might reach (ibid.,
pp. 23 and 24, para. 74 and point 8 of the operative
provisions).
4. On 7 April 1994 the Agent of the Government informed the
President that in a judgment of 24 March 1994 the Federal
Insurance Court had concluded the rehearing proceedings
commenced under section 139a of the Federal Judicature Act.
Its own judgment of 21 June 1988 had been set aside, together
with the decision of the Canton of Uri Appeals Board for Old
Age, Survivors' and Invalidity Insurance of 8 May 1987 and the
decision of the Invalidity Insurance Board of the Canton of
Uri of 21 March 1986; and the applicant had been granted a
full invalidity pension with effect from 1 May 1986.
5. On 27 April 1994 counsel for the applicant advised the
Registrar that his client did not consider that the
proceedings in Switzerland were terminated and that she had
submitted to the Department of Finance a claim for
compensation in the amount of CHF 40,933.64 based on section 3
of the Act on the liability of the Confederation.
6. On 25 May 1994 the Secretariat of the Commission informed
the Registrar that the Delegate wished to leave the question
of Article 50 (art. 50) to the Court's discretion.
7. On 14 September 1994 the applicant's representative sent
the Registrar a copy of the Federal Council's decision of
12 June 1994 whereby the compensation claim was refused; he
asked the Court to consider the possibility of ruling on his
client's claims as an agreement with the Government seemed
unlikely.
8. On the President's instructions, the Registrar consulted
the Agent of the Government and the Delegate of the
Commission. On 12 October 1994 the Agent said he had nothing
to add to the Federal Council's decision of 12 June 1994. On
the following day the Delegate made it known that he was
leaving the matter to the Court's discretion.
9. On 25 October 1994 the Court decided that in the
circumstances of the case it was unnecessary to hold a
hearing.
AS TO THE LAW
10. Under Article 50 (art. 50) of the Convention,
"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. Submissions by the participants in the proceedings
11. Mrs Schuler-Zgraggen maintained that the question of
compensation for pecuniary damage had not been finally settled
by the Federal Insurance Court's judgment of 24 March 1994 in
which her continuing right to a full invalidity pension was
retrospectively recognised (see paragraph 4 above).
She sought interest on that pension in the amount of
CHF 40,933.64. She arrived at that figure by applying a rate
of 5% over the period from 1 May 1986, when payment of the
pension was stopped by decision of the Invalidity Insurance
Board of the Canton of Uri, to 20 April 1994, when the arrears
of pension (CHF 218,512) were paid by the Compensation Office
of the Swiss Machine and Metal Industry.
12. Referring to their decision of 12 June 1994 (see
paragraph 7 above), the Government considered the applicant's
claim to be wholly unjustified.
Without requesting the Court to stay its decision, they
pointed out that the Federal Insurance Court had ruled that it
had no jurisdiction to entertain such an application, stating
that it should be made to the Canton of Uri or the Swiss
Confederation in special proceedings putting the State's
liability in issue.
They contended that Mrs Schuler-Zgraggen's claim had to
be appraised on the basis of domestic law alone, namely the
Federal Act on the liability of the Confederation, members of
its authorities and its officials. Article 50 (art. 50) would
only be relevant if the Federal Insurance Court had given
judgment against the applicant in an administrative-law action
founded on the Act in question.
Moreover, the Government could not, in the instant case,
discern any link between the payment or non-payment of
interest and the claim for just satisfaction. By reopening
the proceedings and setting aside its judgment of 21 June 1988
(Series A no. 263, pp. 12-13, para. 29), the Federal Insurance
Court had made full reparation for the consequences of the
breach of the Convention found by the Court, a breach that had
been due to discrimination on the ground of sex in the taking
and assessing of the evidence that had formed the basis for
appraising the situation, not to the withdrawal of the
invalidity pension. If, after considering
Mrs Schuler-Zgraggen's application for a rehearing, the
Federal Insurance Court had held that the applicant had no
right to such a pension, the breach would still have had to be
regarded as having been remedied.
The Government pointed out, lastly, that the applicant
had been treated in the same way as all others entitled to a
pension who were awarded social-insurance benefits in a court
decision, as interest was not normally paid on a retrospective
pension payment.
13. The Delegate of the Commission left the matter to the
Court's discretion.
B. Decision of the Court
14. The Court takes note of the rehearing proceedings under
section 139a of the Federal Judicature Act which, following
its principal judgment, took place in the Federal Insurance
Court and culminated in the applicant's being awarded a full
invalidity pension with effect from 1 May 1986. It fully
appreciates the importance of that court's judgment of
24 March 1994 for the execution of judgments delivered at
Strasbourg; the Federal Insurance Court thereby showed its
commitment to the Convention and the Court's case-law (see,
mutatis mutandis, the Barberà, Messegué and Jabardo v. Spain
judgment of 13 June 1994, Series A no. 285-C, p. 56,
para. 15).
15. The only issue remaining to be determined is that of the
interest claimed by Mrs Schuler-Zgraggen on the invalidity
pension received in respect of the period between 1 May 1986
and 20 April 1994.
The Court reiterates that "just satisfaction" is to be
afforded "if necessary" and that it is not bound in the matter
by any national legal rule (see the Sunday Times v. the United
Kingdom judgment of 6 November 1980, Series A no. 38, p. 9,
para. 15), in this instance the Federal Insurance Court's
case-law on the awarding of interest. It consequently
considers that it is not for the European Court to pass
judgment on the merits in Swiss law of the Federal Insurance
Court's decision in which the claim in issue was disallowed.
It suffices for it to note that at the end of fresh
proceedings following the Strasbourg judgment, the Federal
Insurance Court recognised that the applicant was entitled to
a full pension and gave retrospective effect to that
recognition. In so doing, it intended to make reparation for
the damage resulting from the breach of the Convention.
However, it did not take into account the passing of time -
about eight years. It therefore appears justified under the
Convention to award some interest for the period in question.
The Court does not, however, agree with the summary and
imprecise method of calculation proposed by
Mrs Schuler-Zgraggen, and in particular with the rate of 5%.
Making its assessment on an equitable basis in accordance
with Article 50 (art. 50), it awards the applicant CHF 25,000
for the remaining pecuniary damage.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that the respondent State is
to pay the applicant, within three months, 25,000
(twenty-five thousand) Swiss francs in respect of
pecuniary damage;
2. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and notified in writing on
31 January 1995 pursuant to Rule 55 para. 2, second
sub-paragraph, of Rules of Court A.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the joint
dissenting opinion of Mr Bernhardt and Mr Wildhaber is annexed
to this judgment.
Initialled: R. B.
Initialled: H. P.
JOINT DISSENTING OPINION OF JUDGES BERNHARDT AND WILDHABER
We have voted against the decision to award interest
since we are convinced that the pension finally granted and
paid for the applicant's benefit constitutes sufficient
compensation and that no additional payment of interest is
required.