Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 14518/89

Margrit SCHULER-ZGRAGGEN

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 7 April 1992)

TABLE OF CONTENTS

PAGE

I. INTRODUCTION

(paras. 1 - 18) ........................................ 1

A. The application

(paras. 2 - 4) .................................. 1

B. The proceedings.

(paras. 5 - 13) ................................. 1

C. The present Report

(paras. 14 - 18) ................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19 - 58) ..................................... 3

A. The particular circumstances of the case

(paras. 19 - 47) ................................ 3

B. Relevant domestic law and practice

(paras. 48 - 58) ................................ 7

III. OPINION OF THE COMMISSION

(paras. 59 - 131) .................................... 10

A. Complaints declared admissible

(para. 59) ...................................... 10

B. Points at issue

(para. 60) ...................................... 10

C. Applicability of Article 6 para. 1

of the Convention

(paras. 61 - 86) ................................ 10

a. Opinion of MM. Frowein, Busuttil, Schermers,

Mrs. Thune, Sir Basil Hall, MM. Martinez,

Rozakis and Mrs. Liddy

(paras. 81 - 82) .......................... 13

b. Opinion of MM. Nørgaard, Trechsel, Ermacora,

Jörundsson, Danelius, Almeida Ribeiro and

Pellonpää

(paras. 83 - 86) .......................... 13

D. Compliance with Article 6 para. 1

of the Convention

(paras. 87 - 116) ............................... 14

a. Lack of an oral hearing

(paras. 88 - 102) .......................... 14

aa) Opinion of MM. Nørgaard, Trechsel,

Ermacora, Jörundsson, Danelius, Almeida

Ribeiro and Pellonpää

(para. 92) ........................... 14

14518/89 - ii -

bb) Opinion of Mr. Schermers, Mrs. Thune and

Mr. Martinez

(paras. 93 - 101) .................... 15

Conclusion

(para. 102). ............................. 16

b. Access to case-file

(paras. 103 - 116) ........................ 16

aa) Opinion of MM. Nørgaard, Trechsel,

Ermacora, Jörundsson, Danelius, Almeida

Ribeiro and Pellonpää

(para. 109) ......................... 17

bb) Opinion of MM. Frowein, Schermers,

Mrs. Thune, Sir Basil Hall, MM. Martinez

and Rozakis

(paras. 110 - 115) ................... 17

Conclusion

(para. 116) ............................... 18

E. Compliance with Article 14 taken together with

Article 6 para. 1 of the Convention

(paras. 117 - 128) .............................. 18

a. Opinion of MM. Nørgaard, Ermacora, Jörundsson,

Danelius, Almeida Ribeiro and Pellonpää

(para. 123) ............................... 19

b. Opinion of MM. Busuttil, Martinez, Rozakis

(paras. 124 - 127) ........................ 19

Conclusion

(para. 128) ..................................... 19

F. Recapitulation

(paras. 129 - 131) .............................. 20

JOINT DISSENTING OPINION OF MR. J.A. FROWEIN

AND SIR BASIL HALL ........................................ 21

DISSENTING OPINION OF MR. S. TRECHSEL ...................... 23

DISSENTING OPINION OF MRS. J. LIDDY ....................... 24

DISSENTING OPINION OF MR. E. BUSUTTIL ..................... 25

DISSENTING OPINION OF MR. C.L. ROZAKIS ..................... 26

DISSENTING OPINION OF MRS. G.H. THUNE ..................... 27

APPENDIX I : HISTORY OF THE PROCEEDINGS .......... 28

APPENDIX II : DECISION ON THE ADMISSIBILITY ........ 29

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, a Swiss citizen born in 1948, is a communal

employee and housewife residing at Schattdorf in Switzerland. Before

the Commission she is represented by Mr. L. Minelli, a lawyer

practising at Forch in Switzerland.

3. The application is directed against Switzerland whose Government

were represented by their Agent, Mr. O. Jacot-Guillarmod, Deputy

Director of the Federal Office of Justice, and their Deputy Agent,

Mr. Ph. Boillat, Head of the European law and International Affairs

Section of the Federal Office of Justice.

4. The application concerns the applicant's complaint under Article

6 para. 1 of the Convention that in social security proceedings she had

no oral hearing and only insufficient access to the case-file; and

under Article 14 of the Convention taken together with Article 6

para. 1 of discrimination on account of her sex in the determination

of her claim.

B. The proceedings

5. The application was introduced on 29 December 1988 and registered

on 9 January 1989.

6. On 2 April 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

with regard to the issues under Article 6 para. 1 of the Convention

concerning access to the case-file.

7. The Government's observations were received by letter dated

26 June 1989 and the applicant's observations were dated 10 September

1990.

8. On 7 December 1990 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the applicant's

complaints under Article 6 para. 1 of the Convention.

9. The hearing took place on 30 May 1991. The respondent Government

were represented by their Agent, Mr. O. Jacot-Guillarmod, by Messrs.

R. Spira and A. Lustenberger, judges at the Federal Insurance Court,

and by Mr. F. Schürmann of the European Law and International Affairs

Section of the Federal Office of Justice. The applicant was

represented by her lawyer, Mr. L. Minelli.

10. Following the hearing the Commission declared the application

admissible.

11. The text of this decision was on 17 July 1991 communicated to the

parties who were invited to submit any additional observations or

further evidence which they wished to put before the Commission.

12. The Government submitted additional observations on 30 September

1991, arguing that domestic remedies were not fully exhausted, but the

Commission found no basis for applying Article 29 of the Convention.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties'

reaction, the Commission now finds that there is no basis on which such

a settlement can be effected.

C. The present report

14. The present report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

15. The text of this Report was adopted on 7 April 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

17. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

a. Institution of invalidity insurance proceedings

19. In 1973 the applicant was employed by the D. industrial company

in Altdorf in Switzerland. From her salary she paid regular

contributions to the Federal Invalidity Insurance (Invaliden-

versicherung).

20. In spring 1975 the applicant was afflicted by open lung

tuberculosis. On 29 April 1976 she applied to the Invalidity Insurance

for a pension as, due to her illness, she was unable to work.

21. The competent Compensation Office (Ausgleichskasse) of the Swiss

Machine and Metal Industry (Schweizerische Maschinen- und

Metallindustrie) decided on 24 September 1976 to grant the applicant

half an invalidity pension for the period from 1 April to 31 October

1976.

22. On 28 September 1978 the D. company gave notice to the applicant

on account of her illness, as from 1979 onwards.

23. The applicant filed a further application for a pension to the

Invalidity Insurance. Based on two expert opinions, the Compensation

Office decided on 25 March 1980 to award the applicant a full

invalidity pension retroactively as from 1 May 1978. The Office

assumed in particular that the applicant was somatically and mentally

unfit for employment.

24. In 1981 and again in 1982 the Insurance reviewed the applicant's

situation and, as a result, confirmed the pension.

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

26. Subsequently, the applicant's invalidity pension was reviewed.

In 1985 the Invalidity Insurance Commission (IV-Kommission) of the

Canton of Uri ordered the applicant's medical examination by the

Medical Observation Centre (Medizinische Abklärungsstelle) of the

Invalidity Insurance.

27. The Medical Observation Centre then requested Drs. F. and B. to

prepare two advisory reports (Konsilien) on the applicant's health,

namely a pulmological report and a psychiatric report, respectively.

Dr. F. prepared his report on 10 December 1985, Dr. B. prepared his on

24 December 1985.

28. The Medical Observation Centre prepared its report on 14 January

1986. The report summarised the advisory reports of Dr. F. and Dr. B.

The advisory report of Dr. B. was also attached to the report of the

Medical Observation Centre. In its report the Centre concluded that

the applicant would not at all be able to work as an office employee;

her ability to do household work amounted to about 60-70%.

29. On 21 March 1986 the Invalidity Insurance Commission terminated,

as from 1 May 1986, the applicant's pension which by then amounted to

2,016 SFr per month. The Commission considered that, after the birth

of her son, her family circumstances had changed substantially in that

she now had new duties in respect of the child. Her health was now

also better. The Commission further considered that according to the

expert opinion of the Medical Observation Centre the applicant was able

to take care of her household and her child to the extent of 60-70%.

b. Proceedings before the Appeal Board

30. On 21 April 1986 the applicant appealed against this decision to

the Appeal Board for Old Age, Survivors' and Invalidity Insurance

(Rekurskommission für die Alters-, Hinterlassenen- und Invalidenver-

sicherung) of the Canton of Uri, requesting payment of a full

invalidity pension, subsidiarily of half a pension. She stated inter

alia that according to the Federal Invalidity Insurance Act (Bundes-

gesetz über die Invalidenversicherung) she was entitled to an

invalidity pension as her invalidity amounted to at least 66 2/3%.

31. By letter of 26 May 1986 the applicant, who was at that time not

represented by a lawyer, complained to the Invalidity Commission of the

Canton of Uri that her request for consultation of the case-file, which

the Appeal Board had transmitted to that Commission, had been refused.

She again requested the case-file and permission to consult photocopies

of certain documents.

32. By letter of 28 July 1986 to the Invalidity Commission the

applicant again requested permission to consult the case-file, in

particular with regard to "all medical reports, protocols and

laboratory results from 1975-1986" ("alle Arztberichte, Protokolle,

Laborauswertungen von 1975-1986"). She also requested photocopies of

important documents.

33. On 8 May 1987 the Appeal Board dismissed the appeal. At the

outset, it found that the right to consult the case-file did not

include the right to take documents away (Herausgabe) nor a right to

receive photocopies. It sufficed that the applicant had been granted

the opportunity to consult her case-file at the Registry of the Appeal

Board. While the applicant had on numerous occasions been asked to do

so, she had not used this opportunity.

34. In the Appeal Board's opinion it could not be discarded that the

applicant, after the birth of her son, would have limited herself to

her household even without becoming an invalid. The Board further

found, inter alia with reference to the expert opinion of the Medical

Observation Centre, that as a housewife the applicant was not

sufficiently disabled to obtain a pension. The Appeal Board considered

that increased working activity could be expected from the applicant,

if she at all wanted to work under the prevailing family circumstances.

The refusal of a pension could help the applicant to resolve the

neurotic fixation that she was unable to work.

35. On 11 August 1987 the applicant wrote to the Appeal Board stating

that she needed all documents and expert opinions in order to assess

the chances of her litigation. She referred to a perfusion scintigram,

a lung function test, blood gas analyses and a plethsmograph.

36. By letter of 13 August 1987 the Appeal Board replied with

reference to the various medical documents:

"these constituted the basis for the various medical reports.

They are only contained in our case-file to the extent that you

are permitted to consult them. We are not therefore in a position

to go beyond and allow you to consult further documents."

"diese (bildeten) Grundlagen für die jeweiligen Arztberichte ...

Sie befinden sich nur im Rahmen des Ihnen gewährten

Akteneinsichtsrechts bei unseren Akten. Wir sind daher nicht in

der Lage, darüber hinaus Ihnen weitere Unterlagen zur

Einsichtnahme vorzulegen."

c. Proceedings before the Federal Insurance Court

37. Against the decision of the Uri Appeal Board the applicant filed

on 20 August 1987 an administrative law appeal (Verwaltungs-

gerichtsbeschwerde) with the Federal Insurance Court (Eidgenössisches

Versicherungsgericht) in which she requested payment of a full pension

or, subsidiarily, that the case should be sent back for renewed

decision by the previous instance. She also requested permission to

consult the entire case-file (vollumfängliches Akteneinsichtsrecht).

38. On 20 October 1987 the Invalidity Insurance Secretariat of the

Compensation Office filed its observations to the Federal Insurance

Court in which it supported termination of the applicant's invalidity

pension. The Federal Social Insurance Office (Bundesamt für

Sozialversicherung) filed its observations on 9 November 1987. With

reference to a report of its own medical service it proposed dismissal

of the applicant's administrative law appeal. This report referred

inter alia to the expert opinion of the Medical Observation Centre.

39. By letter of 23 November 1987 the Federal Insurance Court

informed the applicant that the entire case-file had been sent to the

Uri Appeal Board which "in the next 14 days will hold all documents

ready for consultation" ("in den nächsten 14 Tagen alle Akten zur

Einsichtnahme bereit halten wird"). The applicant would thereafter

have ten days time to supplement her administrative law appeal.

40. On 30 November 1987 the applicant consulted the case-file at the

Uri Appeal Board where she photocopied certain documents. On

1 December 1987 the case-file was sent back to the Federal Insurance

Court.

41. By letter of 7 December 1987 Mr. Sch., a lawyer, informed the

Federal Insurance Court that he would henceforth represent the

applicant. Mr. Sch. also asked the Court to transmit the case-file to

him. This the Court did on 11 December 1987.

42. On 11 January 1988 the applicant filed a supplement to her

administrative law appeal with the Federal Insurance Court. Therein the

applicant noted in particular that the expert opinion of the Medical

Observation Centre assumed, with reference to the report of Dr. F.,

that her lung function was normal. Yet Dr. F.'s report was not in the

case-file. The applicant also complained of the arbitrary opinion of

the Appeal Board according to which, even if she had not become an

invalid, she would on account of the birth of her child limit herself

to working in her household.

43. On 21 June 1988 the Federal Insurance Court partly upheld the

applicant's administrative law appeal in that it determined that, as

from 1 May 1986, the applicant's degree of invalidity amounted to

33.3%. The Court found that, if the conditions of economic hardship

were met, the applicant was entitled to half an invalidity pension. As

the file contained no information in this respect, the Court sent the

case back to the Compensation Office for a new decision based on the

considerations of its decision. The Court's decision was served on the

applicant on 2 July 1988.

44. In its decision the Federal Insurance Court stated that in the

present case its examination was not limited to the violation of

Federal law and the transgression or the abuse of appreciation

(Überschreiten oder Missbrauch des Ermessens). Rather, it could also

examine the appropriateness of the contested decision, and it was not

bound by the facts found by the previous instance. The Court was free,

if necessary, to go beyond the application of the parties, either to

their advantage or disadvantage.

45. With regard to the applicant's complaint that the Appeal Board

had not handed over to her all the documents for consultation, the

Court found that her complaint was now remedied in that the applicant

had been able to express herself before the Court; that the latter

freely examined the facts and the law; and that in the proceedings

before the Court the applicant had been able to consult the documents.

46. With regard to the pension claim the Court stated:

"It must be considered, however, that many wives pursue

activities away from home until the birth of their first

child, though they suspend such activity as long as the

children require complete care and education. The present

case, too, must proceed from this assumption of general

life experience - which must be duly considered for the

question of the applicable method of the determination of

invalidity ... The child, born on 4 May 1984, was barely

two years old at the critical time when the order was

contested on 21 March 1986 ... Thus, according to the

degree of evidence of predominant probability ..., it must

be assumed that the applicant, even without an impairment

in her health, would be active solely as a housewife and

mother..."

"Indessen ist zu beachten, dass viele Ehefrauen bis zur Geburt

des ersten Kindes einer ausserhäuslichen Tätigkeit nachgehen,

diese aber mindestens solange einstellen, als die Kinder der

vollständigen Pflege und Erziehung bedürfen. Von dieser auf der

allgemeinen Lebenserfahrung - welche bei der Frage nach der

anwendbaren Methode der Invaliditätsbemessung gebührend zu

berücksichtigen ist ... - beruhenden Annahme ist auch im

vorliegenden Fall auszugehen. Das am 4. Mai 1984 geborene Kind

war im massgeblichen Zeitpunkt der angefochtenen Verfügung am

21. März 1986 ... erst knapp zwei Jahre alt, weshalb nach dem

Beweisgrad der überwiegenden Wahrscheinlichkeit ... davon

auszugehen ist, dass die Beschwerdeführerin auch ohne

gesundheitliche Beeinträchtigung nur als Hausfrau und Mutter

tätig wäre..."

47. The Federal Insurance Court thus considered it unnecessary to

examine the applicant's ability to work in her previous profession.

Rather, the Court examined if and to what extent the applicant was

restricted in her activity as a housewife. It considered it as

sufficient to rely on the expert opinion of the Medical Observation

Centre. While the Court regarded it as a certain defect (gewisser

Nachteil) that the pulmological report was not in the case-file, it

considered that the internist's examination made it possible to answer

the question whether since 1980 the applicant had undergone pulmonal

changes. Additional medical examinations were hence unnecessary. The

Court noted that since 1980 the applicant had not been treated on

account of tuberculosis and that in this respect she was fully able to

work. The applicant had a neurosis which had meanwhile diminished.

B. Relevant Domestic Law and Practice

a. Swiss social security legislation

48. The Swiss invalidity insurance is governed by the Federal

Invalidity Insurance Act of 1959, and by the Federal Old Age and

Survivors' Insurance Act (Bundesgesetz über die Alters- und Hinterlas-

senenversicherung) of 1946. The invalidity insurance is compulsory for

all persons residing in Switzerland; persons who are not compulsorily

insured, for instance Swiss expatriates, have the possibility

voluntarily to be insured (Sections 1 and 2 of the Federal Invalidity

Insurance Act).

49. The invalidity insurance is operated by cantonal and professional

associations and its operation is supervised by the Confederation

(Sections 49-73 of the Federal Old Age and Survivors' Insurance Act;

Sections 53-67 of the Federal Invalidity Insurance Act).

50. The invalidity insurance is financed by contributions of the

insured and the employer (each paying 1.2% of the insured persons's

salary) as well as of the State which currently pays approximately 50%

of the entire insurance costs. The insured's contribution is deducted

automatically from his salary. There is no upper limit to the

contributions of the insured person and the employer. Children,

spouses and widows without employment are dispensed from contributions;

for other persons without employment, the annual contributions vary

between currently 39 and 1,200 SFr (Section 3 of the Federal Invalidity

Insurance Act; Section 3 of the Federal Old Age and Survivors'

Insurance Act).

51. According to the version of Section 28 para. 1 of the Federal

Insurance Act applicable at the relevant time, a person is entitled

(droit; Anspruch) to a full pension if his invalidity amounted to at

least two thirds. In the case of invalidity of at least 50%, the

person is entitled to half a pension. In hardship cases, half a

pension may be granted if the invalidity amounts to one third. At

present, Section 28 para. 1 additionally envisages a quarter of a

pension if the invalidity amounts to 40%. Section 28 para. 2 states:

"For the calculation of the invalidity, the salaried income is

considered which the insured person could have gained after the

invalidity arose, and after conducting any rehabilitation

measures, by means of an activity which could reasonably be

expected from him, if the situation on the labour market is

stable; this income is placed into relation with the salaried

income which the person could have gained if he had not become

an invalid."

"Für die Bemessung der Invalidität wird das Erwerbseinkommen, das

der Versicherte nach Eintritt der Invalidität und nach

Durchführung allfälliger Eingliederungsmassnahmen durch eine ihm

zumutbare Tätigkeit bei ausgeglichener Arbeitsmarktlage erzielen

könnte, in Beziehung gesetzt zum Erwerbseinkommen, das er

erzielen könnte, wenn er nicht invalid geworden wäre."

52. According to Section 36 et seq. of the Federal Invalidity Act

taken together with Section 29 et seq. of the Federal Old Age and

Survivors' Insurance Act, the pension is calculated on the basis of the

average yearly income of the insured; this is determined by adding all

the income in respect of which the insured has paid contributions, and

dividing the sum by the number of years in which contributions were

paid. The maximum amount afforded in the case of a normal full pension

is limited to twice the minimum pension. Payment of contributions can

be enforced. The claims expire if they have not been made within five

years (Sections 15 and 16 of the Federal Old Age and Survivors'

Insurance Act).

b. Law and practice as to procedure

53. The Swiss Federal Court has derived from Article 4 of the Swiss

Federal Constitution, which enshrines the principle of equality, the

constitutional right in proceedings to consult the case-file. However,

there is no right to take the case-file away or to prepare photocopies

therefrom; it suffices if the file can be consulted at the seat of the

Office concerned and notes can be made (see ATF [Arrêts du Tribunal

Fédéral Suisse] 108 Ia 7). More recently, the Federal Court has

granted a right to have copies made if they do not cause too much work

and too high costs for the authorities (see ATF 112 Ia 377).

54. With regard to the proceedings before the Appeal Board the

Federal Invalidity Insurance Act envisages in Section 69 the

possibility of an appeal against orders of Compensation Offices and

refers in this respect to Sections 84-86 of the Federal Old Age and

Survivors' Insurance Act. Section 85 para. 1 of this Act states:

"The Cantons determine an Appeal Board which is independent of

the administration. An already existing Court authority can be

determined as such. Persons who have been involved in the

preparation or supervision of the insurance may not belong to the

Appeal Board or its Secretariat."

"Die Kantone bestimmen eine von der Verwaltung unabhängige

kantonale Rekursbehörde. Als solche kann eine bereits bestehende

Gerichtsbehörde bezeichnet werden. An der Durchführung der

Versicherung oder an der Aufsicht über die Versicherung

beteiligte Personen dürfen weder der Rekursbehörde noch ihrem

Sekretariat angehören."

55. Para. 2 of Section 85 mentions various requirements of the appeal

proceedings, inter alia that they must be simple, speedy and in

principle free of charge, and that the Appeal Board determines the

facts ex officio. Section 85 para. 2(e) states in particular:

"If it is justified under the circumstances, the parties are to

be invited to a hearing. The deliberations of the Appeal Board

take place without the presence of the parties."

"Rechtfertigen es die Umstände, so sind die Parteien zu einer

Verhandlung vorzuladen. Die Beratung der Rekursbehörde hat in

Abwesenheit der Parteien stattzufinden."

56. With regard to the administrative law proceedings before the

Federal Court and the Federal Insurance Court, Section 112 of the

Federal Judiciary Act (Organisationsgesetz) states that in certain

cases concerning disciplinary punishments an oral hearing must be held.

Para. 2 of Section 112 continues: "In the case of appeals against other

orders, the President of the deciding department may order a final

hearing with parties' submissions" ("Im Falle von Beschwerden gegen

andere Verfügungen kann der Präsident der urteilenden Abteilung eine

Schlussverhandlung mit Parteivorträgen anordnen").

57. According to Article 14 para. 2 of the Rules of Procedure

(Reglement) of the Federal Insurance Court, the parties have no right

to demand an oral hearing. The President may order an oral hearing

upon the request of a party or on his own accord.

58. In the proceedings before the Federal Insurance Court, the

applicant can also complain of the inadequacy of the previous decision.

The Court is not bound by the determination of facts by the previous

instance. In its decision the Court is also not bound by the requests

of the parties and may decide to their advantage or disadvantage

(Section 132 of the Federal Judiciary Act).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

59. The following complaints were declared admissible:

- that in the proceedings before the Swiss authorities the

applicant did not have an oral hearing;

- that in these proceedings the applicant had insufficient access

to the case-file and could not consult one particular medical report;

- that the Federal Insurance Court unjustifiably discriminated

against her on the ground of her sex when it assumed in its decision

of 21 June 1988 that after the birth of her child she would give up

work.

B. Points at issue

60. Accordingly, the issues to be determined are:

- whether Article 6 para. 1 (Art. 6-1) of the Convention applied

to the proceedings at issue; and, if so,

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the lack of an oral hearing;

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention in respect of access to the case-file;

- whether there has been a violation of Article 14 taken together

with Article 6 para. 1 (Art. 14+6-1) of the Convention in respect of

discrimination on account of the applicant's sex.

C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

61. The first issue to be decided is whether Article 6 para. 1

(Art. 6-1) of the Convention applied to the proceedings at issue.

62. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

63. The applicant submits that the circumstances of the present case

do not differ substantially from those of the Deumeland and Feldbrugge

cases (Eur. Court H.R., judgments of 29 May 1986, Series A nos. 99 and

100, respectively). Thus, the insurance is regulated by public law and

compulsory; the applicant also refers to the personalised nature of

the asserted right, the connection with the contract of employment, and

the possibility of voluntary insurance. The applicant submits that the

insurance benefits were essential as a basis of existence for the

applicant.

64. The respondent Government contend that the present case involves

a typical administrative procedure and does not concern the

determination of the applicant's "civil rights and obligations" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Reference is made to the general system of the invalidity insurance in

Switzerland (see above Relevant domestic law and practice) and the

case-law of the Court in the Feldbrugge and Deumeland cases (Eur. Court

H.R., ibid.). In fact, given the double control available in such

proceedings, it is unnecessary to apply Article 6 (Art. 6) of the

Convention; the application of this provision would slow down

proceedings.

65. The Government emphasise that the invalidity insurance is

compulsory and is not attached to the employment contract or to a

person's fortune. The insurance is governed by the principle of

solidarity rather than of equivalence. Thus, apart from a small part

of the pension there is no mathematical correspondence between the

amount of contribution made and the amount of pension received. In the

case of minors, the spouses of insured persons and of widows the

pension will not depend on their contributions. In the present case

the insurance benefit was calculated on the basis of the applicant's

inability to fulfil household duties rather than the inability to earn.

As a result, the insurance appertains exclusively to public law. In

fact, contrary to normal insurances which operate on the principle of

capitalisation, the invalidity insurance is based on the principle of

repartition, i.e. the contributions will finance the pension.

66. The Commission has first examined whether there was a dispute

concerning a right, as required for the applicability of Article 6

para. 1 (Art. 6-1) of the Convention (see Eur. Court H.R., Sporrong and

Lönnroth judgment of 23 September 1982, Series A no. 52, p. 29 et seq.,

paras. 79 et seq.; Le Compte, Van Leuven and De Meyere judgment of 23

June 1981, series A no. 43, p. 220 et seq., paras. 44 et seq.). It

considers that in the present case the Swiss courts were dealing with

a genuine and serious dispute between the applicant and the social

security authorities concerning her entitlement to an invalidity

pension. Thus, the case involved a dispute over a right within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

67. The next question to be resolved is whether the right at issue,

which concerns the area of social security, was a "civil right" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

68. The Commission recalls the Convention organs' case-law according

to which "the concept of 'civil rights and obligations' cannot be

interpreted solely by reference to the domestic law of the respondent

State" (see Eur. Court H.R., König judgment of 28 June 1978, Series A

no. 27, p. 29 et seq., paras. 88 et seq.). Moreover, Article 6

(Art. 6) covers not only "private-law disputes in the traditional

sense, that is disputes between individuals or between an individual

and the State to the extent that the latter has been acting as a

private person, subject to private law ... Accordingly, ... only the

character of the right at issue is relevant" (see Eur. Court H.R.,

König judgment, ibid., p. 30, para. 90).

69. In the Convention organs' case-law a number of criteria have

been developed for deciding whether a given dispute about the

entitlement to social security benefits can be regarded as a dispute

about civil rights or obligations as protected by Article 6 para. 1

(Art. 6-1) of the Convention, in particular whether a right was a

public law right or a private law right. Thus, the criteria for a

public law right are: the public law character of the relevant domestic

law; the compulsory nature of the insurance; and State assumption of

responsibility for social protection. The criteria for a private law

right are: the personal and economic nature of the right; the

connection with the contract of employment; and affinities of the

insurance scheme with insurance governed by ordinary law (see Eur.

Court H.R., Feldbrugge judgment, ibid., p. 12 et seq., paras. 28 et

seq.; Deumeland judgment, ibid., p. 22 et seq., paras. 62 et seq.).

70. The Commission recalls that in the Feldbrugge and Deumeland

judgments the Court concluded on the basis of these principles that

Article 6 para. 1 (Art. 6-1) was applicable to the social security

proceedings at issue. Thus, it found that the private law features

dominated over the public law features, inter alia in view of various

affinities of the social security insurances concerned with insurance

under ordinary law (see Eur. Court H.R., Feldbrugge judgment, ibid.,

p. 15 et seq., paras. 39 et seq.; Deumeland judgment, ibid., p. 39,

paras. 73 et seq.). In a later case, where the social security

benefits were entirely financed by the State, the Commission considered

that the public law features predominated and that Article 6 para. 1

(Art. 6-1) of the Convention was inapplicable (see No. 10855/84, Dec.

3.3.88, K. v. the Federal Republic of Germany, D.R. 55 p. 51). Article

6 para. 1 (Art. 6-1) was found to be equally inapplicable in a further

case where the insurance system was financed by Government subsidies

and charges levied on the employers, and the individuals themselves,

apart from self-employed persons, did not contribute to the financing

of the system (see No. 11450/85, Dec. 8.3.88, Wallin v. Sweden, D.R.

55 p. 142).

71. Turning to the present case, the Commission observes that the

dispute discloses a number of features of public law.

72. The first such feature is the character of the legislation at

issue, i.e. the Swiss Invalidity Insurance Act, which forms part of

Swiss social security law and which domestic law treats as falling

within the sphere of public law. This legislation regulates the

framework of Swiss invalidity insurance. The invalidity insurance is

operated by cantonal and professional associations, and the Swiss

Confederation oversees its operation (see above, para. 49).

73. A second public law feature is the obligation for all persons

residing in Switzerland to be insured against invalidity (see above,

para. 48).

74. A third feature is the Swiss authorities' assumption of

responsibility for ensuring social protection. Thus, the State

currently pays approximately 50% of the entire insurance costs (see

above, para. 50). Such a feature implies an extension of the public-

law domain.

75. On the other hand, the dispute also discloses certain private law

features.

76. To begin with, the applicant's right to a pension was certainly

a personal, economic and individual right, bringing it close to the

private law sphere.

77. The economic nature of a social right with proprietorial

character is in the Commission's opinion not contradicted by the

existence of broad discretionary powers in the social field. Where a

State has opted for creating specific social rights as described above,

their character must be taken into account when assessing whether a

civil right was at issue within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. The right claimed by the applicant

resulted from precisely formulated rules, in particular the Federal

Invalidity Insurance Act and the Federal Old Age and Survivors'

Insurance Act (see para. 48).

78. A second private law feature is the link of the insurance with

the contract of employment. The insurance contributions are deducted

from the salary, and the insurance thus forms one of the constituents

of the relationship between the applicant and her employer. The

Commission nevertheless notes that while the applicant was employed for

a certain period of time, and contributions were thus deducted from her

salary, also non-salaried persons pay contributions and receive

pensions (see above, para. 50).

79. A third feature is the affinities of the Swiss invalidity

insurance with ordinary insurance. The insured persons participate in

the financing of the insurance. In the case of salaried persons, the

contributions are calculated individually on the basis of their salary

(see above, para. 50). Finally, the eventual pension is calculated

individually on the basis of the average yearly income of the insured

person concerned, though the legislation envisages a minimum and a

maximum amount of pension (see above, para. 52). Thus, gaps in the

contributions may affect the amount of pension granted.

80. The Commission has evaluated these various features. However,

it is divided as to its conclusions.

a. Opinion of MM. Frowein, Busuttil, Schermers, Mrs. Thune,

Sir Basil Hall, MM. Martinez, Rozakis and Mrs. Liddy

81. In these members' view, there are in the present dispute certain

elements of public law. Nevertheless, the elements of private law

cannot be overlooked, notably the fact that the insured persons

contribute towards the insurance, that the salary determines the amount

of contribution, and that for the calculation of pension the total

amount of contributions will be considered. Taken together and viewed

cumulatively, the features of private law appear predominant. They

confer on the asserted entitlement the character of a civil right

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

82. Article 6 para. 1 (Art. 6-1) was thus applicable to the dispute

over the applicant's invalidity pension.

b. Opinion of MM. Nørgaard, Trechsel, Ermacora, Jörundsson,

Danelius, Almeida Riberio and Pellonpää

83. These members note that the invalidity pension claimed by the

applicant is based on Section 28 para. 1 of the Federal Insurance Act

according to which a person is entitled to a pension if his or her

invalidity reaches a certain degree (see above, para. 51). The

obligation does not result from any particular relationship other than

that between a citizen and the State in general.

84. The dispute in the present case has few affinities with ordinary

insurance. Thus, adherence to the system is compulsory. Persons

without employment are either dispensed from contributions or must pay

a limited fixed sum (see above, para. 50). The link of the insurance

with a contract of employment is also remote. Rather, the invalidity

insurance is governed by the principle of solidarity, which serves to

protect the most vulnerable members of society.

85. The extension of the notion of "civil rights and obligations" to

such disputes would not be consistent with the criteria established in

the Court's case-law, based on assessment of the relative importance

of features of public and private law. As a result, most disputes

concerning such forms of assistance would be covered by the above

concept, provided that the right in question was a personal and

economic right. In that way, the scope of Article 6 para. 1 (Art. 6-1)

of the Convention would be extended well beyond the principles set

forth by the Court in the Feldbrugge and Deumeland jugments.

86. In these circumstances, the right claimed by the applicant cannot

be regarded as a "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. It follows that this provision is not

applicable to the dispute over the applicant's invalidity pension.

D. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

87. The Commission has next examined the applicant's complaints under

Article 6 para. 1 (Art. 6-1) of the Convention, that in the proceedings

before the Swiss authorities she did not have an oral hearing, and that

she only had insufficient access to the case-file.

a. Lack of an oral hearing

88. The first point to be examined is whether there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect

of the lack of an oral hearing.

89. The applicant submits that the Federal Insurance Court should on

its own accord have granted an oral hearing, as it would have been

important to gain a personal impression of her.

90. The Government submit that, according to Section 85 para. 2 of

the Federal Old Age and Survivors' Insurance Act a hearing is only

granted, "if it is justified under the circumstances". In reality

there are practically no hearings in such proceedings. As a general

rule, both the Appeal Board and the Federal Insurance Court will

consider that the circumstances are not such as to warrant a hearing.

This is so in 99.8% of the cases before the Federal Insurance Court.

In such a technical area pleadings at an oral hearing would bring

nothing, as the decision is essentially based on documents of the file,

such as the medical opinions, accounts of contributions etc.

91. The Commission has reached the conclusion that the answer to the

question whether there should have been an oral hearing must be in the

negative. It expresses this opinion by a majority of ten votes to

five. However, the majority of ten members is divided as to the

reasoning.

aa) Opinion of MM. Nørgaard, Trechsel, Ermacora, Jörundsson,

--------------------------------------------------------

Danelius, Almeida Ribeiro and Pellonpää

---------------------------------------

92. These members have already found that the right claimed by the

applicant was not a "civil right" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention for which reason this provision

did not apply to the dispute over the applicant's invalidity pension

(see above, para. 86). It follows that no issue arises in respect of

the lack of an oral hearing. bb) Opinion of Mr. Schermers, Mrs. Thune and Mr. Martinez

-----------------------------------------------------

93. These members consider that Article 6 para. 1 (Art. 6-1) applies

to the dispute at issue. However, the lack of an oral hearing in the

circumstances of the present case did not amount to a violation of this

provision.

94. Article 6 (Art. 6) of the Convention guarantees a certain number

of procedural rights. It follows from the case-law of the Court that

some of these are absolute in character, while others to a certain

extent are subject to limitations or qualifications dependent on the

particular facts of the case at issue (see Eur. Court H.R. Deweer

judgment of 27 February 1980, Series A no. 35, p. 25 et seq., para. 49;

Axen judgment of 8 December 1983, Series A no. 72, p. 12, para. 27;

Ekbatani judgment of 26 May 1988, Series A no. 134, p. 13, para. 27).

The Court has found that neither the letter nor the spirit of Article

6 (Art. 6) of the Convention prevents a person from waiving of his own

free will, either expressly or tacitly, the entitlement to have his

case heard in an open court meeting (see Eur. Court H.R., Hakansson and

Sturesson judgment of 21 February 1990, Series A no. 171, p. 20,

para. 67).

95. The right to be heard within the meaning of Article 6 para. 1

(Art. 6-1) implies above all that a person involved in such proceedings

has the full possibility to present arguments and statements supporting

his or her claim. It further follows that a person is only actually

heard if the courts concerned duly consider the submissions made.

96. In the majority of cases concerning civil rights this implies that

the right to be heard includes the right orally to present one's views.

Such a possibility must normally be seen to be in the interest of the

person concerned. It is not, however, to be overlooked that there are

cases and situations where the interest of the individual would be

quite sufficiently protected through a court procedure on the basis of

written material. In particular reasonings containing detailed

technical facts and figures cannot well be conveyed orally.

97. In the present case the question may be asked whether the

applicant can be seen as having waived her rights to an oral hearing,

as she did not ask for it either before the Appeal Board of the Canton

of Uri or before the Federal Insurance Board. According to the

applicable legislation the possibility of having an oral hearing

existed under Swiss law. These members would however prefer to leave

this question open, recalling that practically no oral hearings are

held before these courts which took decisions in respect of the

applicant.

98. The practice before the Swiss Courts deciding on social security

matters in a written procedure complies with the practice in a number

of member States. This type of case can appropriately be decided by

an independent court on the basis of written material. Such a practice

cannot run counter to the principle of fairness outlined in

Article 6 (Art. 6).

99. In social security proceedings today an oral hearing can often

contribute only little to resolving the issues before domestic courts.

As the circumstances of the present case demonstrate, the determination

and calculation of an invalidity insurance requires information of a

detailed and technical nature as to the medical state and the accounts

of contributions of the person concerned. Often the parties submit

contradictory information. In fact, if the courts are to comply with

the requirement under Article 6 para. 1 (Art. 6-1) of the Convention

duly to consider such information, it would in any case be necessary

that the parties to such proceedings submit relevant documentation in

writing.

100. It must further be considered that oral hearings delay

proceedings before a court and make them more costly and often more

burdensome for the individual. Finally, if practically all cases

before the Federal Insurance Court are decided exclusively on the basis

of written submissions in spite of the possibility under Swiss law to

ask for an oral hearing, this would indicate that there is generally

no strong wish for oral hearings in such cases.

101. In the present case the applicant had all possibilities of

putting forward statements in writing, both before the Appeal Board of

the Canton of Uri and the Federal Insurance Court, as to her

entitlement to an invalidity pension. The courts duly considered her

views when reaching their decisions. The applicant has not shown in

what respect these possibilities did not suffice. The Swiss

authorities therefore complied with their obligation under Article 6

para. 1 (Art. 6-1) of the Convention to hear the applicant.

Conclusion

102. The Commission concludes, by 10 votes to 5, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the lack of an oral hearing.

b. Access to case-file

103. The next point to be examined is whether there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect

of access to the case-file.

104. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that, compared to the opposing party, she had insufficient

access to the case-file in the proceedings before the Swiss courts.

Thus, she could only consult the case-file at the court registry. She

also complains that the medical report of Dr. F. was not handed out to

her.

105. The applicant submits that social security matters often involve

complex facts. She should have been able to present the documents to

specialists. Thus, it would have been essential for her to work with

the case-file, or at least photocopies thereof, in the same manner as

the social security administration which had the case-file in its

office. Access to Dr. F.'s report would have enabled her to submit it

to her own medical expert for examination.

106. The Government submit that under Article 4 of the Swiss Federal

Constitution the parties must have access to all pertinent documents

of the proceedings. The applicant first did not use the opportunity

of consulting the case-file at the Court Registry. Later, on 30

November 1987 the applicant in fact did consult the case-file, and made

photocopies thereof. Subsequently, the applicant's lawyer received the

entire case-file. Thus, there was no breach of the principle of

equality of arms since the applicant could effectively consult the

case-file.

107. The Government further contend that access to a person's medical

case-file is subjected to the limitations in the second sentence of

Article 6 para. 1 (Art. 6-1) of the Convention. Moreover, the expert

opinion of the Medical Observation Centre, which the applicant could

consult, constituted a virtually verbatim synthesis of the essential

parts of other reports. Only in exceptional cases are the individual

elements leading to the synthesis attached thereto. In fact, both the

Appeal Board and the Federal Insurance Court only relied on the expert

opinion of the Medical Observation Centre. These authorities did not

have Dr. F.'s report at their disposal. The actual assessment of the

applicant's medical situation by the national authorities falls outside

the scope of control of the Convention organs.

108. The Commission has reached the conclusion that there has been no

violation of Article 6 para. 1 (Art. 6-1) in respect of access to the

case-file. It expresses this opinion by a majority of thirteen votes

to two. However, the majority of thirteen members is divided as to the

reasoning.

aa) Opinion of MM. Nørgaard, Trechsel, Ermacora, Jörundsson,

--------------------------------------------------------

Danelius, Almeida Ribeiro and Pellonpää

---------------------------------------

109. These members have already found that the right claimed by the

applicant was not a "civil right" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention for which reason this provision

did not apply to the dispute over the applicant's invalidity pension

(see above, para. 86). It follows that no issue arises in respect of

access to the case-file.

bb) Opinion of MM. Frowein, Schermers, Mrs. Thune

---------------------------------------------

Sir Basil Hall, MM. Martinez and Rozakis

----------------------------------------

110. These members regard Article 6 para.1 (Art. 6-1) of the

Convention as being applicable to the proceedings at issue, though they

consider that the applicant had sufficient access to the case-file.

111. According to the Commission's case-law everyone who is a party

to civil proceedings "shall have a reasonable opportunity of presenting

his case to the Court under conditions which do not place him at a

substantial disadvantage vis-a-vis his opponent" (see No. 7450/76, Dec.

28.2.77, D.R. 9 p. 108).

112. During the proceedings before the Appeal Board the applicant was

offered the possibility to consult the case-file at its Registry, but

did not do so (see above, para. 33). In the proceedings before the

Federal Insurance Court she was informed on 23 November 1987 that the

entire case-file was at her disposal at the Appeal Board; on

30 November 1987 she consulted the case-file and photocopied certain

documents (see above, paras. 39, 40). Finally, on 11 December 1987 the

case-file was transmitted to the applicant's lawyer (see above,

para. 41).

113. Viewing the proceedings as a whole, these members consider that

the applicant and later her lawyer were able effectively to consult the

case-file throughout the proceedings. The applicant has not shown with

regard to any particular document that the obligation to consult it at

the Court Registry in fact proved to be an impediment to the fairness

of the proceedings.

114. The applicant was not, therefore, placed at a substantial

disadvantage compared with the opposing party.

115. Insofar as the applicant complains that she was not shown one

particular medical report of Dr. F., these members note the statement

of the Federal Insurance Court in its decision of 21 June 1988

according to which the report was not actually part of the case-file

(see above, para. 47). Moreover, Dr. F.'s report was summarised in

the report of the Medical Observation Centre of 14 January 1986 to

which the applicant had access (see above, para. 28).

Conclusion

116. The Commission concludes, by 13 votes to 2 , that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of access to the case-file.

E. Compliance with Article 14 taken together with Article 6 para.

1 (Art. 14+6-1) of the Convention

117. The final point at issue is whether there has been a violation

of Article 14 of the Convention taken together with Article 6 para. 1

(Art. 14+6-1) of the Convention as a result of discrimination on

account of the applicant's sex.

118. Article 14 (Art. 14) of the Convention provides, insofar as

relevant:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex ..."

119. The Commission recalls that Article 14 (Art. 14) of the

Convention only prohibits discrimination with respect to the enjoyment

of the rights and freedoms set forth in the Convention.

120. The applicant has invoked Article 14 taken together with Article

6 para. 1 (Art. 14+6-1) of the Convention. She complains of

discrimination on the ground of her sex. Thus, the Federal Insurance

Court assumed in its decision of 21 June 1988 on the basis of "general

life experience" that women with small children will give up salaried

work. Such an assumption by the Federal Insurance Court was unwarranted

in view of the conclusions of many scientific studies. The Federal

Court failed to take evidence on this issue.

121. The Government contend that these issues relate to an

appreciation of evidence which falls in principle to the national

authorities and cannot concern the Convention organs. The national

authorities did not discriminate against the applicant on the ground

of her sex. Rather, the criteria established by law to assess the

inability to work do not apply to a housewife for which reason other

criteria become relevant.

122. The Commission has reached the conclusion that the answer to the

question whether there has been a discrimination on account of the

applicant's sex must also be in the negative. It expresses this

opinion by a majority of nine votes to six. However, the majority of

nine members is divided as to the reasoning.

a. Opinion of MM. Nørgaard, Ermacora, Jörundsson, Danelius,

Almeida Ribeiro and Pellonpää

123. These members have already found that the right claimed by the

applicant was not a "civil right" within the meaning of Article 6 para.

1 (Art. 6-1) of the Convention for which reason this provision did not

apply to the dispute over the applicant's invalidity pension (see

above, para. 86). For this reason the applicant cannot rely on Article

14 taken together with Article 6 para. 1 (Art. 14+6-1) of the

Convention.

b. Opinion of MM. Busuttil, Martinez and Rozakis

124. In these members' view, it is for a different reason that the

applicant cannot rely on Article 14 taken together with Article 6 para.

1 (Art. 14+6-1) of the Convention.

125. These members consider that the right to a fair hearing enshrined

in Article 6 para. 1 (Art. 6-1) of the Convention is procedural in

character and that the applicant's complaint of discrimination is not

one of form but of substance. The applicant does not claim that the

Swiss courts discriminated against her in the conduct of the

proceedings before them; she complains of considerations of the Federal

Insurance Court in its determination of her invalidity pension.

126. The applicant contests the Federal Insurance Court's finding of

a predominant probability that she would be active solely as a

housewife and mother. This finding was not part of the Court's taking

of evidence and as such covered by Article 6 para. 1 (Art. 6-1) but,

as pointed out by the Government, constituted an element of the Court's

evaluation of the evidence before it. According to the Commission's

case-law, the evaluation of evidence "is a matter which necessarily

comes within the appreciation of the independent and impartial courts

and cannot be reviewed by the Commission unless there is an indication

that the judge has drawn grossly unfair or arbitrary conclusions from

the facts before him" (No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31 at pp.

45 f.). Maintaining this view these members do not find in the present

case that the Federal Insurance Court has drawn "grossly unfair or

arbitrary conclusions" from the facts before it.

127. It follows that there is no right under Article 6 para. 1

(Art. 6-1) in respect of which the applicant can rely on Article 14

(Art. 14) of the Convention.

Conclusion

128. The Commission concludes, by 9 votes to 6, that there has been

no violation of Article 14 taken together with Article 6 para. 1

(Art. 14+6-1) of the Convention in respect of discrimination on account

of the applicant's sex.

F. Recapitulation

129. The Commission concludes, by 10 votes to 5, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the lack of an oral hearing (para. 102).

130. The Commission concludes, by 13 votes to 2, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in

respect of access to the case-file (para. 116).

131. The Commission concludes, by 9 votes to 6, that there has been

no violation of Article 14 taken together with Article 6 para. 1

(Art. 14+6-1) of the Convention in respect of discrimination on account

of the applicant's sex (para. 127).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

JOINT DISSENTING OPINION OF MR. J.A. FROWEIN AND SIR BASIL HALL

We regret that we disagree with the majority in respect of two

issues. While we consider that Article 6 para. 1 of the Convention

applied to the dispute at issue, in the circumstances of the present

case we reach a different conclusion as regards the necessity of an

oral hearing under Article 6 para. 1 of the Convention, and in respect

of compliance with Article 14 of the Convention taken together with

Article 6 para. 1 of the Convention.

A. Lack of an oral hearing

We agree that the applicant could not have been expected to ask

for a hearing. It cannot, therefore, be said that by not asking for

a hearing the applicant waived her right to have one.

However, we have noted the applicant's submission that a hearing

would have enabled her to give a personal impression of herself. We

find that an oral hearing might indeed have shed light on certain

aspects of the case dealt with by the various courts, for instance,

whether after the birth of her son the applicant would have limited

herself to household work; and whether the refusal of a pension would

help her resolve her neurotic fixation that she was unable to work (see

above, paras. 34, 46).

We consider it unnecessary to examine whether the applicant

should have been afforded an oral hearing before both courts or only

before one. It suffices to state that in proceedings concerning the

determination of a person's civil rights and obligations, such as in

the present case, Article 6 para. 1 of the Convention requires at least

one such hearing, which the applicant did not have.

In this respect, therefore, there has been a violation of Article

6 para. 1 of the Convention.

B. Compliance with Article 14 taken together with Article 6

para. 1 of the Convention

Article 14 of the Convention only prohibits discrimination with

respect to the enjoyment of the rights and freedoms set forth in the

Convention. In this respect the applicant has invoked Article 6

para. 1 of the Convention.

We note, however, that the Federal Insurance Court, in its

decision of 21 June 1988, regarded the contested statements, namely the

predominant probability that the applicant would be active solely as

a housewife and mother, as part of the evaluation of evidence (see

above, para. 46). The respondent Government submit that this

appreciation cannot concern the Convention organs.

According to the Convention organs' case-law, the right to a fair

hearing under Article 6 para. 1 of the Convention extends to the taking

of evidence. It is true that it is primarily the responsibility of the

national courts to assess the evidence before them. However, the task

of the Convention organs is to ascertain whether the proceedings viewed

as a whole, including the way in which evidence was taken, were fair

(see No. 7987/77, Dec. 13.12.79, D.R. 18, 31; Eur. Court H.R., Asch

judgment of 26 April 1991, Series A no. 203, p. 10, para. 25).

In our opinion, the applicant can therefore rely on Article 14

of the Convention taken together with Article 6 para. 1 of the

Convention.

Turning to the facts complained of, we note that the Federal

Insurance Court, when assessing the evidence as to the applicant's

invalidity pension, resorted to general life experience according to

which married women ceased their professional activities after the

birth of a child and stayed at home as long as the child required

complete care and education. In our opinion, had the applicant been

a man who had recently become a father, the Court would indubitably not

have assumed such a probability, and would therefore have assessed the

evidence differently. The applicant can therefore claim that she

experienced a difference of treatment on account of her sex.

For the purposes of Article 14 of the Convention a difference of

treatment is discriminatory if it has no objective and reasonable

justification. The Contracting States enjoy a certain margin of

appreciation in assessing whether differences in otherwise similar

situations justify a different treatment in law. However, the scope

of this margin varies according to the circumstances of the case. In

this respect, the Convention organs will bear in mind that the

Convention is a living instrument which must be interpreted in the

light of present-day conditions (see Eur. Court H.R., Inze judgment of

28 October 1987, Series A no. 126, p. 18, para. 41).

It must further be considered that the advancement of the

equality of the sexes is a major goal in Europe today (Eur. Court H.R.,

Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no.

94, p. 38, para. 78). This is shown by the many relevant texts adopted

in the Council of Europe, recently for instance Resolution 855 (1986)

of the Parliamentary Assembly on equality between men and women. The

Recommendation notes, inter alia, "the obstacles to equality between

men and women ... in stereotyped attitudes" (para. 3) and it recalls

"that equality can only be achieved by changing the roles of both women

and men, and that to this end a new and more even division of labour

and responsibilities between women and men must be brought about"

(para.5).

In the present case the Federal Insurance Court justified its

conclusion solely by reference to general life experience. Neither did

it corroborate this conclusion with scientific research, nor did it

compare it with any views maintained by the applicant concerning her

own situation.

In our opinion, the Federal Insurance Court proceeded, in its

appreciation of evidence, from a conception of the role of sexes which,

insofar as expressed in such a general and sweeping manner, appears

outdated and has no objective and reasonable justification, as would

be required by Article 14 of the Convention.

In this respect, therefore, there has been a violation of Article

14 of the Convention taken together with Article 6 para. 1 of the

Convention in respect of a discrimination on account of the applicant's

sex.

DISSENTING OPINION OF MR. S. TRECHSEL

Although I am of the opinion that Article 6 does not apply to the

dispute between the applicant and the Federal Invalidity Insurance, I

have voted in favour of finding a violation of Article 14 in

combination with Article 6.

At first sight, this may look contradictory. The Court, however,

in the case "relating to certain aspects of the laws on the use of

languages in education in Belgium", judgment on the merits of 23 July

1968, Series A no. 6, p. 33, para. 9, has proposed an extensive

application of Article 14. It stated that although Article 6 "does not

compel States to institute a system of appeal courts, ... it would

violate that Article, read in conjunction with Article 14, were it to

debar certain persons from these remedies without a legitimate reason".

The present case is not entirely covered by the example as, in

the view of the minority of the Commission to which I belong, Article 6

does not apply to the proceedings in question. Consequently, the

application would be inadmissible as being incompatible rationale

materiae with the Convention. On that assumption, due to its accessory

character, Article 14 does not apply either.

Where a member of the Commission has come to the conclusion that

a specific guarantee is not applicable to the facts at issue, he or she

will vote against admissibility. If the majority of the Commission

nevertheless declares the case admissible, members having been in the

minority will logically conclude that there has been no violation. It

might even be more appropriate to abstain, but this is excluded by Rule

18 (3) of the Commission's Rules of Procedure.

Finally, it is also possible, in my view, for a member who is in

the minority to incline to the view of the majority and express an

opinion as to whether the Convention has been violated on the basis set

by the majority of the Commission.

I adopted this attitude in my vote on the issue of

discrimination. Following Mr. Frowein and Sir Basil Hall, I therefore

found a violation of Article 14 in conjunction with Article 6.

Unfortunately, while there is widespread consent, if not

unanimity, in the rejection of any discrimination based on sex, in

practice many residues of such discrimination survive. I consider the

approach of the Federal Insurance Court, according to which it may

generally be presumed that women with small children will give up

salaried work, to be such a residue. In my view, it is one of the

important tasks of this Commission's view to contribute to the

elimination of all forms of discrimination based on sex.

DISSENTING OPINION OF MRS. J. LIDDY

I agree with the dissenting opinion of Mr. Frowein and Sir Basil

Hall concerning violations arising out of the lack of an oral hearing

and discrimination on account of the applicant's sex.

Furthermore, I consider that there has been a violation of

Article 6 para. 1 in respect of the access to the pulmological opinion

of Dr. F.

The Invalidity Insurance Commission ordered the applicant's

examination by the Medical Observations Centre (para. 26 of the

Report). On receipt of the Centre's Report it was open to the

Invalidity Insurance Commission to seek the full text of the Report of

Dr. F., which was summarised by the Centre. The applicant sought all

medical reports both from the Invalidity Insurance Commission (para. 32

of the Report) and from the Appeal Board (para. 35 of the Report)

without success. It would have been extremely important to the

applicant to have access to the medical records in order to seek a full

rather than half-pension. Indeed the Federal Insurance Court regarded

it as a certain defect that the pulmological report was not in the

case-file.

I consider that the applicant was at a disadvantage vis à vis the

other party, the Invalidity Insurance Commission, in that she, unlike

that body, had no right of access to such an important document. The

fact that the Report was not actually part of the case-file has

influenced the majority of the Commission to find no violation of

Article 6 para. 1 in this respect (para. 100 of the Report) but in my

opinion this consideration does not resolve the fact that there was no

equality of arms between the parties.

DISSENTING OPINION OF MR. E. BUSUTTIL

I have had the benefit of reading the dissenting opinions in this

case of Mr. Frowein and Sir Basil Hall, on the one hand and of Mrs.

Liddy on the other.

I agree with the reasoning of Mr. Frowein and Sir Basil Hall

concerning the necessity of an oral hearing and like them come to the

conclusion that here has been a violation of Article 6 para. 1 of the

Convention in this respect.

Similarly, I am of the opinion that there has been a further

violation of Article 6 para. 1 not only because of inadequate access

to the case-file by the applicant in the circumstances of the instant

case but also because, as Mrs. Liddy rightly argues, the principle of

equality of arms is here called into question in that the applicant,

unlike the Invalidity Insurance Commission, had no right of access to

the unabridged medical report of Dr. F. which she particularly wanted

to consult.

DISSENTING OPINION OF MR. C.L. ROZAKIS

I agree with the dissenting opinion of Mr. Frowein and Sir Basil

Hall in so far as they conclude that there has been a violation of

Article 6 para. 1 of the Convention in view of the fact that the

applicant did not have an oral hearing.

DISSENTING OPINION OF MRS. G.H. THUNE

I agree with the dissenting opinion of Mr. Frowein and Sir Basil

Hall in so far as they conclude that there has been a violation of

Article 14 of the Convention taken together with Article 6 in respect

of discrimination on account of the applicant's sex.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

29 December 1988 Introduction of the application

9 January 1989 Registration of the application

Examination of Admissibility

2 April 1990 Commission's decision to invite

the Government to submit observations

on the admissibility and merits of the

application

26 June 1990 Government's observations

10 September 1990 Applicant's observations in reply

7 December 1990 Commission's decision to hold an oral

hearing

30 May 1991 Oral hearing on admissibility and

merits, Commission's decision to

declare the application in part

admissible and in part inadmissible

Examination of the merits

12 October 1991 Commission's consideration of the

state of proceedings

18 February 1992 Commission's deliberations on the

merits and final vote

30 March 1992 Commission's deliberations on the

merits

7 April 1992 Adoption of the Report

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SCHULER-ZGRAGGEN v. SWITZERLAND

SCHULER-ZGRAGGEN v. SWITZERLAND

LEXI