THIRD SECTION

CASE OF BELLI AND ARQUIER-MARTINEZ v. SWITZERLAND

(Application no. 65550/13)

JUDGMENT

STRASBOURG

11 December 2018

FINAL

11/03/2019

This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision .

In the case of Belli and Arquier-Martinez v. Switzerland,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Vincent A. De Gaetano, President, Branko Lubarda, Helen Keller, Dmitry Dedov, Pere Pastor Vilanova, Georgios A. Serghides, Jolien Schukking, judges, and Stephen Phillips, Section Registrar ,

Having deliberated in private on 13 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 65550/13) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Swiss nationals, Ms Annick Marcelle Belli and M s Christiane Arquier-Martinez (“the applicants”), on 14 October 2013.

2 . The applicants were represented by Mr H.-P. Sambuc, a lawyer practising in Vessy . The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann .

3 . The applicants alleged, in particular, that the requirement of a private address in Switzerland in order to qualify for social insurance benefits was discriminatory .

4 . On 22 November 2013 the Government were given notice of the application .

5 . On 31 January 2017 the former S ection President decided , pursuant to Rule 54 § 2 ( c) of the Rules of Court , to invite the parties to submit observations in writing on the admissi bility and the merits of the application .

6 . Further observations were received from the applicant s on 6 March 2017 and from the Government on 10 March 2017.

THE FACTS

7 . The applicants were born in 1962 and 1939 respectively and live in Armaçao dos Buzios ( Brazil ). The second applicant is the first applicant ’ s mother and guardian.

8 . The first applicant has been deaf since birth, speaks her mother tongue with great difficulty and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life. She was granted an ex traordinary invalid ity insurance pension ( “ enhanced pension for congenitally disabled persons ” ) as from 1 September 1980 , and a disability allowance as of 1 September 1997. From January 2009 to March 2010 (15 months ) the C antonal Social Insurance Office of the C anton of Geneva granted the first applicant allowances to a total of CHF 39, 900 ( approximately 35, 400 euros a t current rates ).

9 . The legal provisions applicable in this s phere state that beneficiaries of the extraordinary pension and the disability allo wance, which are non- contribut ory benefits, must have a private address and their habitual residence in Switzerland ( see paragraphs 21 and 25 below ).

10 . During review proceedings brought in July 2009, the Geneva Canton Disability Insurance Office obtained information, in particular, from the second applicant and from Michel Belli, the first applicant ’ s divorced parents .

11 . In fact, the second applicant had decided to settle in Brazil with her new husband, a French national – with whom the applicants submit they have been living since 1982 – in order to purchase and run a hotel . The first applicant , who had been placed under the second applic ant ’ s parental authority in summer 2009, had been living with her in Brazil for several years, visiting her father in Switzerland for about three weeks every three months.

12 . By decision of 3 December 2010, the Disability Insurance Office for Insured Person s Resident Abroad (OAIE) rescinded the first applicant ’ s entitlement to the extraordinary invalid ity pension and the disability allo wance with effect from 1 April 2010.

13 . On 5 October 2012 the Federal Administrative Court dismissed the applicants ’ appeal against that decision . In short, the court held that the first applicant was no longer entitled to the benefits in question because she did not have a private address or her habitual residence in Switzerland .

14 . Exercising their right to lodge a public -law appeal , the applicants invited the Federal Court to set aside the judgment of the Federal Administrative Court and the decision of 3 December 2010, and to order the OAIE to pay “uninterruptedly” to the first applicant , in respect of costs and ex pens es , the extraordinary invalidity pension and the disability allo wance with 5% annual interest .

The applicants submitted that the withdrawal of the benefits on the grounds that they were non- exportable amounted to a disproportionate and therefore unjustified interference with their privat e and family lif e, a s well as their private home as protected by A rticle 8 of the Convention. If the withdrawal were upheld, the first applicant would be forced to return to Switzerland in order to receive the benefits which were necessary for her quality of lif e, which meant that either she would have to live separately from her mother or the latter would be obliged, in order to avert such separation , to return to Switzerland to live with her daughter, which would entail separation from her current husband. The right to respect for the home would also be affected, since the insured person would be forced to move to Switzerland . The applicants took the view that the said infringement was also discriminatory within the meaning of A rticle 14 of the Convention, read in conjunc tion with A rticle 8, because the benefits had been withdrawn for reasons linked to the nature of the insured person ’ s disability: she had been born with a health impairment and had therefore not been able to contribute to the disability insurance scheme before the disability had occurred .

15 . By judgment of 15 April 2013, notified on 26 April 2013, the Federal Court dismissed the appeal lodged by the two applicants . In short, the Federal Court found that the withdrawal of the right to an extraordinary invalidity pension and a disability allo wance on account of the lack of a private address and residence in Switzerland did not fall within the ambit of A rticle 8 of the Convention. In that connection , the court emphasised that the benefits in question had not pursued the aim of protecting family lif e or intervening in personal or family relations .

“ 4.1 ... A rt. 8 par a . 1 E CH R also protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference ( see E C t H R judgment Moreno v . Spain , 16 November 2004, ECHR Re ports 2004-X p. 307 § 53).

4.2 According to the constant case-law of the E C t H R , A rt. 8 E CH R does not give rise to direct entitlement to social insurance benefits . The Court has indeed acknowledged that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may, in certain circumstances, be positive obligations inherent in effective respect for private or family life (see, among other authorities, Botta , § 33). However, it has held that A rt. 8 E CH R does not impose on the Contracting States any obligation to provide specific financial assistance or to guarantee a specific standard of living ( see Petrovic v. Austria , 27 March 1998, Re ports 1998-II p. 579 § 26 et s eq., and the inadmissibility decision in Pancenko v. Latvia , 28 October 1999). That provision places no restriction on the Contracting States ’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme ( see Stec and Others v. the Uni ted Kingdom , 12 April 2006, ECHR Re ports 2006-VI p. 159 , § 53). The E Ct H R has thus considered that a refusal to grant a parental leave allowance cannot amount to a failure to respect family life, since Article 8 of the Convention does not impose any positive obligation on States to provide the financial assistance in question ( see Petrovic , § 26).

Consequently , given that A rt. 8 ECHR does not give rise to entitlement to a specific standard of living or to a positive obligation to provide a social insurance benefit, the withdrawal of the benefits in question owing to the insured person ’ s departure from Switzerland does not amount to an interference with private or family life. Nor does this measure impinge on the necessary respect for the home within the meaning of A rt. 8 ( 1 ) E CH R and the European Cour t ’ s case-law, which the appellants have interpreted broadly, as it does not involve any practical infringement of the area in which their privat e and family life develops. Furthermore , i t is plain that the appellants were not impeded by the Swiss authorities in their choice of way of life and the development of their family relations in Switzerland or abroad ; in particular, they were not prevented from maintaining family and social relations in this country, from settling in it or leaving it as they wished .

It should be pointed out here that in all cas es where the European Cour t has considered a denial of specific social in surance benefits in the light of the rights secured under the E CH R , it has relied on Protocol No. 1 of 20 March 1952 to the E CH R , as, fo r example , in Moskal v. Poland , 15 September 2009 , § § 93 et s eq ., cited by the appellants ( see also Stec and Others , § 53 , and Koua Poirrez v France , 30 September 2003, ECHR Re ports 2003-X p. 45 § § 43 et s eq. ). Since Switzerland has not ratified that protocol , it is not bound by the Court ’ s case-law concerning the non- discriminatory granting of social security benefits based on Article 1 of the protocol .

4.3 Contrary to the appellants ’ subsequent submissions , the withdrawal of the social insurance benefits in question does not, from a thematic perspective , fall within the scope of A rt. 8 E CH R , which would enable them to pray in aid A rt. 14 E CH R . That provision , which compl ements the other substantive provisions of the E CH R , can apply in the absence of an infring ement of those provisions, provided that the facts of the case fall within the ambit of one or more of them (see, among many other aut ho r iti es, Konstantin Markin v Russia , 22 March 2012, § 129 ...).

Generally speaking , the in surance invalidity benefit provided for in Swiss law is a social in surance benefit designed to offset the loss of earnings sustained by an insured person on account of the effects of a health impairment on his or her ability to work, or to compensate for an inability to perform everyday actions as a result of a health problem. The extraordinary invalidity pension pursues the same aim for individuals who have been disabled since birth ( or have become disabled without having acquired entitlement to an ordinary pension ). As regards the invalid ity allowance , it is awarded on the basis of a long-term need for assistance by others or for the personal supervision of the insured person concerned in performing ordinary everyday actions on account of a health impairment .

Those social insurance benefits are paid regardless of the beneficiar ie s ’ lifestyle, that is, irrespective of whether t he y live alone, with family or in an institution ( with certain exception s ir relevant to the present case: see, for example , section 42 ( 5 ) LAI and section 35bis ( 3 ) RAI). From that angle, the benefits are, precisely, intended to enable adult beneficiaries to lead as autonomous a life as possible, without having to depend on help and assistance from members of their families . They are not designed to promote family lif e or to intervene in personal or family relationships . Contrary to the examples cited by the appellants , and according to a legal opinion to w hich they refer (Matthias Kradolfer, op. cit., p. 73), to wit a parental leave allowance ( see Petrovic , § 27) and a n ‘ assistance pension ’ paid to the parents of a disable d child ( see Moskal v Poland § 93), the Swiss extraordinary invalidity pension and disability allo wance are not aimed at enabling one of the parents to remain at home in order to look after their (adult) child. Accordingly, the withdrawal of those benefits on account of the non-fulfilment of the criterion of ordinary residence in Switzerland laid down in domestic law does not fall within the scope of Article 8 E CH R . ”

16 . In declaring A rticle 8 of the Convention inapplicable in the instant case the Federal Court saw no need to assess the existence of discrimination within the meaning of A rticle 14 of the Convention.

A. N on - contribut ory benefits in Swiss law

1. Preliminary remarks

17 . I t should be pointed out at the outset that Switzerland has not conclu ded an y international agreement with Brazil concerning disability benefits .

18 . One of the main differences between ordinary pension s and , as i n the instant case , extraordinary pensions and the disability allo wance, is that the latter are granted on the condition of having a private address and ordinary residence in Switzerland . I t follows that ordinary invalidity pension s , as contribut ory benefits, can be exported to a foreign country ( under the exportation principle ) and extraordinary invalidity pension s and the disability allo wance cannot . Th e Report published by the Federal Commission of E xperts for the introduction of disability in surance on 30 November 1956 exp lained that extraordinary pensions , as non- contribut ory benefit s, were not paid ab r oad because they were primarily funded from public monie s, to which persons residing outside Switzerland do not contribute .

19 . Section 17 (2) of the Federal Law on Social Insurance ( general section ) (LPGA) of 6 October 2000 provides that :

“ any long-term benefit granted pursuant to a decision which has become final shall , e x officio or on request, be increased or reduced accordingly, or else withdrawn , where the conditions for its grant have significantly change d . ”

2. Functional disability allo wance (Hilflosenentschädigung)

20 . Pursuant to section 9 of the LPGA, a person suffering from functional disability is anyone who, on account of a health impairment , needs permanent assistance from another person or personal supervision in order to perform ordinary everyday actions .

21 . Section 42 (1) of the Federal Law on Disability In surance of 19 June 1959 (LAI) provides:

“ insured person s suffering from functional disability ... who have their private address and ordinary residence ... in Switzerland are entitled to a functional disability allo wance . ”

22 . Under section 77 (2) LAI, the functional disability allo wance is funded exclusive ly by the Confederation . I t is a non - contribut ory benefit .

23 . Entitlement to a functional disability allo wance does not depend on whether or not the person concerned is in receipt of a n invalid ity in surance benefit . The allo wance is a cash benefit assessed according to the person ’ s needs in terms of assistance and supervision, irrespective of actual costs and actual recourse to the service s of third person s.

3. Extraordinary disability in surance pension ( “ pension increased in respect of persons disabled from birth ” )

24 . Prior to 1 January 2008, a date which is decisive in the present case, person s with disabilities w ere eligible for an ordinary invalid ity in surance pension if, at the onset of the ir invalid ity , they had been contributing for at least one year. P erson s who had not yet been subject to compulsory contributions for a full year were entitled to an extraordinary invalid ity in surance pension .

25 . Section 39 LAI mentions that the entitlement of Swiss national s to extraordinary pensions is governed by the provisions of the 20 December 1946 Federal Law on pension in surance and survivors (LAVS). Section 42 LAVS provides :

“ 1 Swiss nationals having their private home and ordinary residence ... in Switzerland are entitled to an extraordinary pension if they have the same number of years ’ in surance as other persons in the same age bracket but are not entitled to an ordinary pension because they hav e not been subject to compulsory payment of contributions for at least one year . ... .

2 Any insured person who is granted a pension must personally satisfy the requirement of a private home and ordinary residence in Switzerland . ” ...

26 . As regards the “ ordinary residence” requirement , section 13 (2 ) LPGA provides that

“ a person is deemed to have his or her ordinary residence at the place where he or she resides or has resided for a period of time, regardless of the length o f that period of time . ”

27 . Section 13 (1) LPGA re fers to the Swiss Civil Code of 10 December 1907 , the relevant provisions of which provide :

Article 23 CC : Private home ( domicile ) ( Definition )

“ 1 A person ’ s private home is the place where he or she resides with the intention of settling there; residence in a training institution or accommodation in an educational institution, a nursing or old people ’ s home, a hospital or a detention centre does not per se constitute a private home.

2 N o one may have several private homes simultaneously . ... ”

Article 26 CC: Private home of adults under general guardianship orders

“ The private home of adults under general guardianship orders is the headquarters of the adult protection agency. ”

B. Non-contributory benefits in international social security law

28 . Article 9 of the I nternational Covenant on Economic , S ocia l and Cultural Rights of 16 December 1966, which came into force in respect of Switzerland on 18 September 1998, enshrines the right to social security . Nevertheless, in its General Comment No. 19 of 4 February 2008 (E/C.12/GC/19), the Committee on Economic, Social and Cultural Rights notes the following as regards the international implementation of the obligations deriving from the right secured (italics added):

“ 56. States parties should ensure that the right to social security is given due attention in international agreements and, to that end, should consider the development of further legal instruments. The Committee notes the importance of establishing reciprocal bilateral and multilateral international agreements or other instruments for coordinating or harmonizing contributory social security schemes for migrant workers . ... ”

29 . Article 32 (1) of ILO Convention No. 128 of 29 June 1967 concerning Disability , Old-Age and Survivors ’ Benefits , which came into force in respect of Switzerland on 13 September 1978, permits the suspension of

“ a benefit to which a person protected would otherwise be entitled ... (a) as long as the person concerned is absent from the territory of the Member, except, under prescribed conditions, in the case of a contributory benefit . ... . ” [ italics a dded ]

30 . Pursuant to A rticle 11 of the European Convention on Social Security of 14 December 1972, designed as an instrument coordinating the Council of Europe social security schemes ( Council of Europe Treaty Series (CE TS ) n o. 078, no t ratified by the Swiss Confederation , the following are excluded from the scope of that conven tion ( italics a dded ):

“ (a) special non-contributory benefits granted to invalids who are unable to earn a living; ( b ) special non-contributory benefits granted to persons not entitled to normal benefits; ... . ”

C. Non- contribut ory benefits under comparative law

31 . Comparison of legislation in thirty-four member States of the Council of Europe (Albania, Armenia, Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Cyprus, Croatia, Estonia, France, Germany, Greece, Hungary, Ireland, Iceland, Italy, Liechtenstein, Lithuania, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom) and three non-member States (Canada, Hong Kong and the United States) led to the following conclusions.

(1) The general rule in seventeen of the States compared is that contribut ory pensions are exportable, but that permanent residence is a pre condition for entitlement to non- contribut ory benefits ( Albania , Armenia , Austria , Belgium , Canada, the Uni ted States , France, Germany , Hong Kong, Ireland , Italy , Lithuania , Poland , Portugal, San Marin o, Turkey and Ukraine). Some of those S tat e s , however, lay down special rules on the exportability of non ‑ contribut ory benefits . In Austria and Germany, people with severe disabilities may apply for a “ severely disabled pass ” ( Schwerbehindertenausweis ) st at ing their degree of disability and facilitating the receipt of benefits. Foreign residents can also obtain this pass if ther e is a “sufficient link” with the S tat e of origin . Italy allows beneficiaries of some benefits to retain them abroa d , albeit only for six months or for serious medical reasons . Poland also permits the exportation of specific benefits in the event of a temporary absence from the country . Belgium and Ireland allow for derogations from the general rule of non- exportability , particularly in cas es of extreme necessity . In Portugal, exportation is exceptionally possible where the disabled person i s accompanying a close relative working abroad in the Portuguese national interest .

(2) The general rule in eighteen of the States compared is that disability benefits are non- exportable , be they contribut ory or not ( Bosnia-Herzegovina , Bulgaria , Cyprus , Estonia , Greece , Hungary , Iceland , Liechtenstein, the former Yugoslav Republic of Macedonia , the Republic of Moldova, Monaco, the Netherlands , Romania , the Russian Federation , Serbia , Slovenia , Sweden and the Uni ted Kingdom ).

(3) T wo S tat e s fall into neither of those categories inasmuch as the exportability of a benefit is decided on a case -by- cas e basis, regardless of whether the benefit is contribut ory or no t ( Croatia and Spain ).

(4) Benefits may, however, be exportable if the S tat e in question has concluded a bilateral international agreement on th at subject .

(5) Furthermore , EU Member States must comply with the relevant provisions of EU law set out below as regards the exportation of benefits within the European Union .

D. N on-contributory benefits in European Union law

32 . Social security benefits are coordinated within the European Union. Such coordination is governed by the principle of the exportability of social welfare benefits between EU countries. However, European law does not address the matter of the exportability of benefits to third S tat e s , and the legislative powers in this field and competence to conclu de internationa l agreements with third States remain at the national lev e l .

33 . The original texts on social security coordination in the European Union ( such as R egulation No. 1408/71/EEC of 14 June 1971 ) make no mention of special non-contributory cash benefits . Decisions were thus taken against a number of S tat e s which ha d refused to pay benefits to persons not residing in their territory . It was not until the enactment of R egulation No. 1247/92/EC that the category of special non- contribut ory cash benefits was created , specifying , within the ambit of Regulation No. 1408/71/EE C of 14 June 1971, that those benefits would not be exportable .

34 . The Court of Justice of the European Union subsequently developed case-law concerning the conditions under which a benefit qualified as a special non- contribut ory cash benefit . Those conditions have now been codified in Regulation No. 883/2004/EC of 29 April 2004 (A rticle 70 paragraph 2) :

“ 2. For the purposes of this Chapter, ‘ special non-contributory cash benefits ’ means those which:

(a) are intended to provide either:

(i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned;

or

(ii) solely specific protection for the disabled, closely linked to the said person ’ s social environment in the Member State concerned,

and

(b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone,

and

(c) are listed in Annex X . ”

35 . The Regulation also states that disability benefits are subject to i t , pursuant to A rticle 3 § 1 (c) :

Article 3

“ Matters covered

1. This Regulation shall apply to all legislation concerning the following branches of social security:

(c) invalidity benefits; ... ”

36 . A rticle 70 (4) of the Regulation sets out the principle that special non - contribut ory cash benefits are not exportable :

“ 4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence . ”

37 . Member States of the European Union must list the benefits which they grant and which satisfy the conditions governing special non- contribut ory benefits set out in A nnex X t o Regulation No. 883/2004/ E C of 29 April 2004 in order to obtain any derogation to the exportability of benefits .

38 . However, the Court of Justice of the European Union does not verify whether the benefits listed in A nnex X correspond to special non- contribut ory cas h benefits . I t transpires from its case-law that :

(i) if the benefit is considered as a sickness cash benefit, it must be granted irrespective of the Member State in which the recipient is resident ( see CJ E U, 5 May 2011, European Commission v . Federal Republic of Germany , C-206/10, p ara. 30); however,

(ii) the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the Member State concerned, for example if it is based on the minimum wage or the standard of living in that State (see CJEU, 5 May 2011, Ralph James Bartlett and Others v. Secretary of State for Work and Pensions , C-537/09, para. 38).

39 . The Court of Justice h a s also restricted the possibility of invoking the residence condition against an EU citizen in respect of a special no n- contribut ory cash benefit in cases involving freedom of movement . In a case concerning a man who was in receipt of benefits in the Netherlands until he moved to Belgium, when they were no longer paid even though he continued to work in the Netherlands, where he had also retained all his economic and social ties, the Court considered that the implementation of the conditions set out in the European regulation should not impinge on the rights deriving from the freedom of movement of workers beyond what was required to attain the legitimate object pursued by national law (see CJCE, Grand Chamber, 11 September 2007, H. v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen , C-287/05, p ara. 56).

E. Applicability of Regulation No. 883/2004/ E C to Switzerland

40 . R egulation No. 883/2004/ E C of 29 April 2004 has been applicable to Switzerland in its relations with the Member State s of the European Union since 1 April 2012 , in the framework of the Agreement on freedom of movement of persons between Switzerland and the European Union . The following Swiss benefits are listed in A nnex X to the Regulation :

“1. Supplementary benefits (Federal Supplementary Benefits Act of 6 October 2006 ) and similar benefits provided for under cantonal legislation.

2. Pensions in the case of hardship under invalidity insurance (Article 28 sub-paragraph 1a of the Federal Invalidity Insurance Act of 19 June 1959, as amended on 7 October 1994).

3. Non-contributory mixed benefits in the event of unemployment, as provided for under cantonal legislation.

4. Non-contributory extraordinary invalidity pensions for disabled persons (Article 39 of the Federal Invalidity Insurance Act of 19 June 1959) who have not been subject, before their incapacity for work, to the Swiss legislation on the basis of an activity as an employed or self-employed person . ”

41 . In it judgment ATF 141 V 530 of 11 September 2015 , the Federal Court p ointed out that extraordinary invalidity pension s satisfied all the criteria to be considered as special b e nefit s within the meaning of A rticle 70 § 2 of Regulation No. 883/2004.

“ 7.3.3 In order to justify its position vis-à-vis the European institutions , the Swiss Confederation first of all observed that in order to be eligible for a n ordinary disability in surance pension , insured persons had to have paid contributions for at least three years at the time when they became unfit for work . Persons who have been disabled since birth or childhood cannot fulfil that condition, given that they were unable to work before the age              at which they would have begun to pay contributions. That is why such persons were entitled to a special pension corresponding to the amount of the minimum ordinary invalidity pension . That pension was granted to persons over the age of eighteen living in Switzerland ( see proposal of 28 June 2010 cited above , p p . 8 and 9).

According to the explanations provided by the Swiss Confederation, it was justifiable to include the extraordinary invalidity insurance pension in the list of special non-contributory cash benefits, because it fulfilled all the criteria for being considered as a special non-contributory benefit within the meaning of Article 4 para. 2 bis of Regulation No. 1408/71 and the relevant CJ E C case-law . I t was first and foremost a mixed benefit : on the one hand it had specific social- security features in that the persons concerned had a clearly defined right to that benefit and it covered the invalidity risk ; on the other hand it was also linked to social assistance in that it was not based on periods of work or contribution and was not aimed at mitigating a situation of need by providing a minim um living wage to a socially underprivileged group ( young persons with disabilities ). The extraordinary pension was also a special benefit, since it was an alternative allo wance aimed at persons who did not fulfil the in surance conditions to obtain an ordinary invalidity p e nsion ; it was closely linked to the socio- economic situation in Switzerland, since it corresponded to the minimum pension in that S tat e . F in ally , the extraordinary pension was non- contribut ory , as it was not funded from contributions but exclusive ly by the Confederation ( see propos al of 28 June 2010 cited above, p. 8).”

42 . The Federal Court also confirmed that disability allowances ( section 42 ( 1 ) LAI) constitute special non - contribut ory cash benefits (ATF 142 V 2, 17 December 2015).

F. United Nations Convention on the Rights of Persons with Disabiliti es

43 . The relevant provisions of the UN Convention on the Rights of Persons with Disabiliti es of 13 December 2006, ratified by Switzerland on 15 April 2014, read as follows :

Article 2 ( 3 ) ( definitions )

“ ‘ Discrimination on the basis of disability ’ ” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation ...

Article 3: General p rinciples

The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one ’ s own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities .

Article 5 : Equality and non-discrimination

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds . ...

Article 19: Living independently and being included in the community

States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs .

Article 28: Adequate standard of living and social protection

1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.

2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:

...

b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes;

...

e) To ensure equal access by persons with disabilities to retirement benefits and programmes . ”

THE LAW

44 . The applicants complained of a violation of Article 14 taken in conjunction with Article 8 of the Convention, on the grounds that the requirement of a private home ( domicile ) in Switzerland was directly linked to the nature of the first applicant ’ s disability. They submitted that the decisive criterion for the first applicant to be eligible for the benefits in issue, that is to say having a private home in Switzerland, depended, in a discriminatory manner, on the type of disability – congenital – suffered by the applicant , since disabled persons who had been able to pay contributions were able to export th e i r pensions . Those two provisions provided :

Article 14

“ 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 .

Article 8

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others . ”

A. Admissibility

45 . Th e Government invite d the Court to declare i nadmissi ble the complaint under A rticle 14 read in co njunction with A rticle 8, as their main submission, as being incompatible ratione materiae with the Convention pursuant to A rticle 35 § 3 ( a) of the Convention, and in the alternative , as being manifestly ill-founded.

46 . The applicants considered the complaint admissi ble.

47 . The Court holds that the Government ’ s argument that Article 8 is not applicable to the present case, which would render the complaint under Article 14 inadmissible ratione materiae, goes to the merits of the case. It further notes that this complaint is not manifestly ill-founded within the meaning of A rticle 35 § 3 of the Convention and that it is not inadmissible on any other grounds . It should therefore be declared admissi ble.

B. Merits

1. Applicability of A rticle 14 read in co njunction with A rticle 8 of the Convention

(a) T he parties ’ submissions

(i) Th e Government

48 . According to the Government , A rticle 8 of the Convention does not give rise to direct entitlement to social insurance b e nefit s outside Switzerland .

49 . Th e Government acknowledged that the Court had not ruled out the possibility of certain social benefits falling within the scope of A rticle 8 of the Convention. The Government cite d, in particular Petrovic v . Austria (27 March 1998, §§ 26 et s eq ., Re ports of Judgments and Decisions 1998 ‑ II), concerning a parental leave allowance , and Moskal v . Poland (n o. 10373/05, § 93, 15 September 2009), concerning an early retirement pension for the parents of a disabled child, a nd submitted that the benefits at issue in the present case were not designed to enable one of the parents to remain at home to look after children or to promote family lif e: they were intend ed to allow adult beneficiaries to lead an autonomous, independent lif e.

50 . R eferring to Stec and Others v . the Uni ted Kingdom [GC], n os. 65731/01 and 65900/01, § 53 , E CH R 2006 ‑ VI, the Government emphasised that the Convention did not restrict the Contracting States ’ freedom to decide whether or not to put in place a given social security scheme . Furthermore , even if such a scheme existe d , the Government submitted that the right to a social benefit was a pecuniary right for the purposes of A rticle 1 of Protocol No. 1 to the Convention, which was not binding on Switzerland since it had not ratified it .

51 . Th e Government further emphasised that the recruitment of a home-care nurse was not impossible given the current incomes of the second applicant and her husband, who had, moreover, defrayed the cost of medical provision thus far, having regard to the cost of living in Brazil .

52 . The Government took the view that since the facts of the ca se did not fall within the scope of any Convention provision , A rticle 14 of the Convention was also applicable to the present case .

( ii ) The applicants

53 . The applicants submitted that A rticle 8 of the Convention was applicable to the present case because the measures taken by the S tat e were jeopardising the first applicant ’ s life and health , both applicants ’ autonomy and privat e life, a nd also their overall family unity .

54 . The applicants denied invoking any right to live abroad ; the second applicant , whom the first applicant needed because her father was unable to look after her, had followed her husband to Brazil out of financial necessity , in order to manage a hotel , which they were now attempting, without much success, to sell before returning to Switzerland .

55 . The applicants alleged in particular that they were facing serious difficulties in organising their daily privat e lives, given that the first applicant could no longer benefit from the help of a trained assistant and that healthcare had to be provided by the second applicant – a n elderly woman – whose ability to manage her hotel was being restricted . The applicants , referring to Glor v . Switzerland , n o. 13444/04, § 54, E CH R 2009, also argue d that a decision with mainly pecuniary consequences stemming from a disability fell within the ambit of A rticle 8 of the Convention.

56 . The applicants , citing the judgments delivers in Petrovic v . Austria , cited above , §§ 27-29, and Moskal v. Poland , cited above , § 93, also submitted that family lif e was relevant because of the relation ship of dependency between the first applicant , who had no capa city of discernment , and the second applicant, who held parental authority . The applicants added that the affective relation ship between the first applicant and her stepfather was real and should be protected .

(b) The Court ’ s assessment

57 . As regards protection against discrimination, i t should be remembered that A rticle 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see , among many other aut ho r iti es, Sahin v . Germany [GC], n o. 30943/96, § 85, E CH R 2003-VIII). The application of Article 14 does not presuppose a breach of those provisions. It is necessary and sufficient that the facts at issue fall within the ambit of at least one of the provisions of the Convention or its Protocols (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)).

58 . The Court also reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount ( see Yuri Romanov v . Russia , n o. 69341/01, § 45, 25 October 2005). Moreover , the Convention does not confer on an individual a right to enjoy any given standard of living ( see Vassilenkov v . Ukraine , n o. 19872/02, § 18, 3 May 2005).

59 . As regards the “ family lif e” aspect of A rticle 8, the Court observes from the outset that that concept does not include only social, moral or cultural relations; it also comprises interests of a material kind ( see Merger and Cros v . France , n o. 68864/01, § 46, 22 December 2004).

60 . As regards the “ private life ” aspect of A rticle 8 , the Court has already had occasion to observe that i t is a broad term which is not susceptible to exhaustive definition. It can sometimes cover the physical and social integrity of the person ( see Glor v . Switzerland , n o. 13444/04, § 52, E CH R 2009; Mikulić v . Croatia , n o. 53176/99, § 53, E CH R 2002-I ; and Otgon v . the Republic of Moldova , n o. 22743/07 , 25 October 2016).

61 . The “privat e life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world ( see , fo r example , Evans v . the Uni ted Kingdom [GC], n o. 6339/05, § 71, E CH R 2007 ‑ I). Finally , the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of A rticle 8 ( see Pretty v . the Uni ted Kingdom , n o. 2346/02, § 61, E CH R 2002 ‑ III, and Haas v . Switzerland , n o. 31322/07, § 51, E CH R 2011).

62 . In a recent case against Switzerland , the Court considered A rticle 8 applicable under its “private” aspect , i n so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the method of calcul ating the degree of disability used in the case placed individuals wishing to work part-time at a disadvantage compared with those in full-time paid work and those who d id not work at all, the Court c ould not rule out that this method of calculating disability w ould limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare ( see Di Trizio v . Switzerland , n o. 7186/09 , § 64, 2 February 2016 ).

63 . As regards the present case, the Court acknowledges that Article 8 or the Convention clearly cannot be interpreted as imposing a positive obligation on States to continue to pay social benefits regardless of ordinary residence. On the other hand, the Court also reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Kimlya and Others v. Russia , nos. 76836/01 and 32782/03, § 86, ECHR 2009, and Artico v. Italy , 13 May 1980, § 33, Series A no. 37). In other words, therefore, regard must be had to the specific feature s of the individual case , particularly the social and family situations in which the applicants find themselves .

64 . The applicants relied on respect for their privat e life , family unity and their autonomy . They argued that the first applicant needed the support of the second applicant , who i s living in Brazil with her husband for professional reasons . Furthermore , the first applicant has been under the parental authority of the second applicant since 2009.

66 . The Court considers that the refusal to pay the pension abroad was liable to affect the organisation of the applicants ’ family life ( see, to that effect , Di Trizio , cited above , § 62). Indeed, they face a situation which requires taking difficult decisions, all of which are likely to impact on their family life: either they decide to enjoy their family life in Brazil, where the second applicant is married, with the consequence of losing entitlement to the benefits ; or they decide to retain their entitlement to the pension ; in the latter hypothesis, the second applicant must choose between separation from her daughter, over whom she holds parental authority but who must of necessity live in Switzerland in order to receive the benefits , and separation from her husband, who cannot, for professional reasons , be expected to leave Brazil .

67 . Having regard to the foregoing considerations, the applicants ’ complaint falls within the ambit of A rticle 8. I t follows that A rticle 14 of the Convention, read in co njunction with A rticle 8, is applicable in the present case .

2. Whether there has been a violation of A rticle 14 read in co njunction with A rticle 8

(a) The parties ’ submissions

(i) The applicants

68 . Citing the judgment delivered in the case of Glor , the applicants alleged a violation of A rticle 14 of the Convention in relation to Article 8 : they argue that the infringement of their privat e and family lif e is discriminatory as compared with other disabled persons because the benefits in issue would not have been withdrawn if the first applicant , disabled from birth, had become disabled as the result of an accident sustained as an adult , a fter having contributed to the social in surance fund s, such that in the latter cas e the applicants would not have been forced to remain in Switzerland on the basis of a “fiscal” criterion . In other words, the question was whether or not the disabled person in question had contributed to the funding of the social benefits . Persons unfortunate enough to have been born with a disability were obliged to retain their habitual residence in Switzerland .

69 . The applicants submitted that the ordinary pension was an in surance benefit , whereas the extraordinary pension granted to person s disabled from birth or to persons having become disabled before their 23 rd birthday was considered as a form of social aid funded exclusive ly by the Swiss Confederation rather than from insured person s ’ contributions . They noted that it had been a political decision based on pure ly financial considerations which had led the Swiss legislature to determine that only the ordinary pension would be exportable, in the face of opposition from organisations defending the rights of persons with disabiliti es. In particular , at the time of the 5 th revision of the LAI, whereas an initial draft had inclu ded the possibility of export ing the extraordinary pension , the final draft had dropped all mention of it .

70 . The applicants also alleged that the organisations protecting persons with disabiliti es had constantly emphasised that authorisation to export extraordinary pensions would relieve the financial burden on the public authoritie s. In view of the low level and high costs of treatment in Switzerland , beneficiaries of the pension usually had to have recourse to supplementary benefits financed by the ( Federal and / or C antonal ) authorities . They added that authorising such exportation would help alleviate public finances .

71 . According to the first applicant , referring in particular to Covenant I ( see paragraph 28 above ), the European consensus was that special attention should be paid to disabled persons as a vulnerable category in order to promote their integration . They added that the recent social and legal progress in the Council of Europe, in the Court ’ s case-law and in the internationa l texts towards enhanced protection of the dignity and autonomy of persons with disabiliti es, of their right to maintain control over their own lives and of their right to live in the community rather than in an institution, was beyond dispute .

72 . The applicants considered that t h e Swiss system , in principle and per se , created a discriminatory situation to the detriment of the freedom of movement , autonomy and the family lif e of persons disabled and powerless since birth, and, by extension, of their families , where they must leave Switzerland for family , economic and/ or administrative reasons . That amounted to a disproportion at e interference with their family lif e, because a separation, an emotional abandonment would be required to enable the disabled person to retain the same quality of life, whereas that would not have been the situation if payment of the pensions had continue d , as in the case of a person who had become disabled as a result of an accident.

73 . The applicants submitted that the decision, which had been based on financial reasons, not to allow exporta tion of the extraordinary pension created a difference of treatment devoid of any objective and reasonable justification for the purposes of A rticle 14 of the Convention, between persons disabled from birth and persons having become disabled after their 23 rd birthday .

74 . The applicant s also alleged that their family ties and their social milieu were in Brazil and not in Switzerland . They further stated that the withdrawal of the pension and allo wance was having a serious effect on their everyday lives . In the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing for the first applicant . They explained that the cash benefits received by the first applicant had covered the costs of recruiting a homecare nurse a nd that without such income it was no longer possible to recruit such a nurse .

75 . Moreover , the applicants affirmed that they had had enormous difficulties in finding a buyer for their hotel in Brazil . They argued that until the second applicant and her husband found someone to take over the hotel, they would find it very risky and difficult to leave Brazil . They further complained that a forced departure would have extremely serious, nay grievous effects on both applicants in psychological terms . Furthermore, the first applicant would lose her independence and autonomy, being no longer able to live in a normal environment .

76 . Having regard to the foregoing considerations, the applicants considered that there had been a violation of A rticle 14 read in co njunction with A rticle 8 of the Convention.

( ii ) Th e Government

77 . As regards A rticle 14 of the Convention read in conjunction with A rticle 8, the Government , noting the universal consensus on the necessity of protecting disabled persons against any form of discrimination, nevertheless considered , relying on the judgments delivered in the cases of Glor , cited above , and Montoya v . France ( n o. 62170/10 , 23 January 2014), that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme . However, should the Court decide the opposite, namely that the first applicant ’ s situation was comparable to that of a person having contributed to the insurance scheme, and even assume that the two types of pension (contributory/non-contributory) were not sufficiently different to justify different types of regulations, the Government considered that the different conditions applicable to the two types of pension were justified on grounds inherent in insurance law.

78 . As regards the objective justification of the unequal treatment, the Government considered that the aim of the distinction was to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. Th e preservation of that solidarity mechanism depended on the will and the trust of other people, which required it to be subject to certain limits . Thus the Government considered that the impugned legislation had pursued a legitimate aim , that is, the country ’ s economic well-being. They explained that the social security system was an extremely complex State construction which compr ised a balanced and coordinated set of measures to protect the population against the vicissitudes of lif e . That system operated at considerable cost, which was defrayed by people living in Switzerland. A ny change to the rules on the exportation of extraordinary pensions and disability allo wances would upset the financial balance of disability insurance .

79 . Th e Government further emphasised that the Swiss social insurance system was based on the “ in surance principle ” and broadly underpinned by the equivalence between the payment of contributions and the right to benefits . Consequently, the Swiss social insurance system could not be expected to provide benefits outside its territory to persons who had not – albeit for reasons beyond their control – direct ly contributed to the funding of those benefits .

80 . Th e Government p ointed out that the extraordinary pension constituted an alternative allo wance for persons who did not meet the in surance conditions for entitlement to an ordinary invalidity pension , which meant that it was an instrument for broadening welfare protection . Without such an instrument, persons who had been disabled since birth or since childhood and who therefore did not satisfy the contribution condition would be dependent on social assistance .

81 . Th e Government also explained that not only were the conditions for entitlement to benefits different in the case of extraordinary pensions , but the benefits were also different . The a mo u nt of ordinary invalidity pension s granted depended , inter alia , on the insured person ’ s annual income . On the other hand, extraordinary invalidity pension s were, with some reservations , equal to the minimum amount of the corresponding full ordinary pensions, and they did not depend on any loss of earnings or average annual income , but corresponde d to a lump sum, that is to say the minim um pension . Similarly , the amount of the disability allo wance also did not depend on any loss of income.

82 . Th e Government a dded that the contribut ory or non- contribut ory nature of the pensions was also reflected in the funding of the benefits. Ordinary pensions were funded from social and public contributions . Conversely , extraordinary pensions and the disability allo wance were financed exclusive ly by the Confederation .

83 . As regards reasonable justification f or the unequal treatment , the Government submitted that Switzerland had a broad margin of appreciation in economic and social matters . They considered that Switzerland had not overstepped that margin , and had, on the contrary , complied with the internationally recognised principles in the sphere of coordination of social security schemes , to the effect that non- contribut ory benefits were not exported . The Government took the view that there was a consensus in the European countrie s that non- contribut ory benefits were not exportable and were therefore paid on the condition of residence in the paying country .

84 . In that connection, the Government noted that in the framework of the system for coordinating social security schemes implemented in the European Union and in relations between the EU and Switzerland (Regulation [EU] no. 883/2004, concerning the Agreement between the Swiss Confederation and the European Community and its Member States on the movement of persons [ALCP]), extraordinary invalidity pension s for disabled persons who had not been subject, before their unfitness of work, to Swiss legislation on the basis of an activity as an employed or self-employed person constituted “special non-contributory cash benefits” (Article 70 § 2 of the Regulation) (see paragraph 41 above). Furthermore, extraordinary disability-insurance pensions had been included on the list of that type of benefit (Annex X to Regulation no. 883/224/EC). C onsequent ly , they were granted exclusive ly in the Member State ( Switzerland ) in which the person in question lived and in accordance with its legislation ( A rticle 70 § 2 of the Regulation ). Th e Government r ecalled, in that regard , that in judgment ATF 141 V 530 of 11 September 2015 the Federal had confirmed that extraordinary invalidity pension s m et a ll the requisite criteria to qualify as special benefits within the meaning of A rticle 70 § 2 of Regulation n o. 883/2004.

85 . In the light of the foregoing considerations, the Government submitted that the Swiss legislation making the grant of non-contributory benefits subject to having a private home and ordinary residence in Switzerland was not unreasonable, to the extent that it corresponded to current legislation in the other European countries and to the principles in force in international social security law, including the territoriality principle. I t followed that the arrangements for paying the benefits in question, as recognised and accept by the S tat e s P arties to the ALCP in the light of the specific features of special non- contribut ory cash benefits , could not be deemed contrary to the Convention. Th e Government stated that the same reasoning also applied to the disability allo wance (Article 42 ( 1 ) LAI), as the S tat e s P arties to the ALCP had recognised the close link with Switzerland on account of the non-contributory nature of that benefit ( see ATF 142 V 2 , point 6 , and paragraph 42 above ).

86 . The Government also submitted that the obligation on Switzerland to adopt social poli cy measures in order to comply with the internationa l instruments to which it was a Party was of a territorial nature . In other words, Switzerland could not be expected to ensure that social welfare benefits which were funded exclusively from taxation were also paid abroad . The added that the benefits in issue were closely linked to the socio-economic context of Switzerland because they corresponded to the minimum pension payable in that country. Consequently , it was reasonable to restrict them to the Swiss territory .

87 . Balancing the competing interests, the Government argued that the first applicant still had the possibility of returning to Switzerland to benefit from the benefits in question. The loss of the benefits had been the consequence of the applicants ’ departure from Switzerland, whereas the legal situation had been clearly that the first applicant would lose her entitlement to an extraordinary invalidity pension and a disability allowance. Th e Government a dded that Brazil had ratified the I nternational Covenant on Economic , Social and Cultural Rights and was therefore required to respect the rights set out therein.

88 . Having regard to the foregoing considerations, the Government considered that there had been no violation of A rticle 14 read in co njunction with A rticle 8 of the Convention.

(b) The Court ’ s assessment

(i) The applicable principles

89 . The Court r eiterated that A rticle 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that th is distinction is discriminatory ( see, for example , National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v . the Uni ted Kingdom , 23 October 1997, § 88, Re ports 1997-VII, and Zarb Adami v . Malta , n o. 17209/02 , § 71, E CH R 2006 ‑ VIII).

90 . According to the Court ’ s case-law , a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim of the impugned measure, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example , Zarb Adami , cited above , § 72 ; Stec and Others , § 51 ; Petrovic , cited above , § 30 ; and Lithgow and Others v . the Uni ted Kingdom , 8 July 1986, Series A n o. 102, § 177).

91 . In other words , the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v . the Uni ted Kingdom , 28 May 1985, § 82, Series A n . 94). Indeed , A rticle 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention ( see, among other aut ho r iti es, G.M.B. and K.M. v . Switzerland (d e c.), n o. 36797/97 , 27 September 2001, and Zarb Adami , cited above , § 73).

92 . The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment . The scope of this margin will vary according to the circumstances, the subject matter and the background ( see Fretté v . France , n o. 36515/97 , § 40, E CH R 2002 ‑ I ; Stec and Others , cited above , § 52 ; Rasmussen v . Denmark , 28 November 1984, § 40, Series A n o. 87 ; and Inze v . Austria , 28 October 1987, § 41, Series A n o. 126).

93 . Furthermore , since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in the respondent State and in Contracting States in general and respond, for example, to any emerging consensus as to the standards to be achieved. One of the relevant factors in determining the scope of the margin of appreciation left to the authorities may be the existence or non-existence of common ground between the laws of the Contracting States the Convention ( see Glor, cited above , § 75, and Sitaropoulos and Giakoumopoulos v . Greece [GC], n o. 42202/07, § 66, E CH R 2012).

94 . A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy . Because of their direct knowledge of the society and its needs, the national authorities were better placed than the international judge to appreciate what was in the public interest in economic or social matters , and the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Carson and Others v. the Uni ted Kingdom [GC], n o. 42184/05, § 61, E CH R 2010, and Stec and Others , cited above , § 52).

(ii) Application of the principles in the instant case

(α) The existence of grounds for discrimination covered by A rticle 14

95 . The applicants , having moved to Brazil , are complaining of discrimination on account of the withdrawal of the first applic ant ’ s right to social benefits of a non-contribut ory nature, pay ment of which is , by definition linked to permanent residence in Switzerland . They are being treated differently from persons who contribu ted to the social security system - for ex ample because they only became disabled after having worked for a number of years – and who are entitled to the benefits even if they live abroad .

96 . A rticle 14 lists the precise constitu ent elements of a “ situation ”, such as race, national or social origin and birth . However, the list set out in this provision is indicative, and not limitative, in nature, as witness the expression “any ground such as” (“ notamment ” in the French version) (see Engel and Others v. the Netherlands , 8 June 1976, § 72; Carson and Others , cited above, § 70; and Biao v. Denmark [GC], no. 38590/10, § 89, 24 May 2016), as well as the expression in the list “any other status” (“ toute autre situation ” in the French version). The expression “ any other status ” has generally been regarded as a broad interpretation ( see Carson and Others , cited above , § 70, and Biao , cited above , § 89) which is not limited to different treatment based on characteristics which are personal in the sense that they are innate or inherent ( see Clift v . the Uni ted Kingdom , n o. 7205/07, §§ 56-58, 13 July 2010, and Biao , cited above , § 89).

98 . Having regard to the foregoing considerations, the Court considers that the two applicants can rely on grounds of discrimination covered by A rticle 14. In the present case, the discrimination relates to the nature of the first applicant ’ s disability , in conjunction with the (contributory or non-contributory) type of the impugned benefits, and is accordingly covered by A rticle 14.

 I n relevantly similar situations

99 . The Court r eiterates that a difference in treatment may raise an issue from the point of view of the prohibition of discrimination as provided for in Article 14 of the Convention only if the persons subjected to different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context ( see Fábián v. Hungary [GC], n o. 78117/13, § 121, 5 September 2017). It notes that the elements which characterise different situations, and determine their comparability, must be assessed in the light of the subject-matter and purpose of the measure which makes the distinction in question (ibid . ).

100 . As regards the field concerned , the Court observe s that the case concerns the exportability of a invalidity pension . It raises therefore, on the one hand, issues of a general nature in the economic and social spher e , in which the State has a broad margin of discretion; on the other hand, it involves an allegation of discrimination against a severely disabled person, and therefore a particularly vulnerable group of persons who have suffered , and are still suffering, major inequalities .

101 . In connection with the purpose of the measure , the applicants consider that they have been discrimin ated against as compared to disable persons who, in particular following an accident or illness, are entitled to export their invalidity pension s. The Government submitted that the situation of a beneficiary of an ordinary invalidity pension differed from that of the first applicant in that only in the former case had the person in question contributed to the Swiss social insurance scheme . The Court considers that the aim of thes e two types of pension is to guarantee disability income in two different types of situation : in the case of the ordinary invalidity pension for persons having contributed to the invalidity insurance system , and in the case of the disability allowance and the extraordinary invalidity in surance pension f or persons who have not contributed to the invalidity insurance system . The Court takes the view that as regards the comparability of these two situations, the mere fact that the applicants have not contributed to the system is not decisive. On the other hand, that fact will be taken into account in the reasons given for the unequal treatment , which will be examined below ( see paragraphs 104-114).

102 . The Court accordingly considers that although the situation of the first applicant, who has been disabled since birth and is the beneficiary of an extraordinary invalidity insurance pension and a disability allowance (which are not exportable) is not identical to that of a person benefiting from an (exportable) ordinary invalidity insurance pension, but is sufficiently comparable to the latter situation. The Court holds that she sustained unequal treatment . I t remains to be seen whether the Government can advan ce any objective and reasonable justification for that state of affairs .

γ) The existence of a justification for the unequal treatment

103 . The Government submitted that the fact that a person had or had not contributed to the invalidity insurance scheme was valid justification for differentiated treatment under Article 14. The Court agrees, and considers that contributi ng or not contributing to the scheme constitutes an objective justification f or the unequal treatment , even though the differentiation is in fact based on the first applicant ’ s disability , in other words a condition over which she has no control .

104 . As regards the reasonableness of the justification for the unequal treatment , the Court emphasises from the outset that the applicants did not complain of discrimination as compared to non-disabled persons , but rather that they felt discrimin ated against as compared with persons who, having contributed to the invalidity insurance scheme , have become disabled and can export their pensions abroad.

105 . The applicants allege d that their family ties and their social relations we re in Brazil and not in Switzerland , that the withdrawal of the pension and allo wance ha d severely affecte d their everyday lives and that in the absence of the requisite funds, they could no longer call on the services of an outside assistant capable of providing medical care for the first applicant . They also mention ed their enormous difficulties in finding a buyer for their hotel in Brazil, and alleged that a forced departure would have extremely serious effects on both applicants in psychological and emotional terms .

106 . The Court is not convinced that those allegations were duly relied upon before the domestic authorities . At all events, it reiterates that those disadvantages originated in the decision freely taken by the second applicant to leave Switzerland , despite the clear legislation providing for the non- exportability of the extraordinary invalidity insurance pension and the disability allo wance . The applicants o ught therefore to have expected th os e benefits to be withdrawn . They do not argue that the legal bases for withdrawing the benefits were unforeseeable or inaccessible .

107 . I t should also be remembered that the applicants , Swiss national , are perfectly entitled to r esettle in Switzerland . Moreover , i t transpires from the case file that the first applicant paid regular visits to her father in Switzerland . That being the case, it cannot be claimed that resettling in Switzerland , in which country they spent most of their lives, would p ose insuperable problems for the applicants. On the contrary , contact s between the first applicant and her father, who lives in Switzerland, would even be made easier .

108 . As regards the interests of the respondent S tat e , the Court does not regards it as incompatible with the Convention to link up the grant of the extraordinary invalidity in surance pension and the disability allo wance with the ordinary residence criterion , in particular inasmuch as A rticle 8 does not secure entitlement to a pension or a social benefit of a specified amount .

109 . T hat is, in fact, confirmed by a comparison of the solutions used in other Council of Europe member States . The Court r eiterates that it may examine the situation in other member States in respect of the issues at stake in a given case in order to assess whether there exists a “European consensus” or at least a certain trend among the member States ( see , mutatis mutandis , Naït ‑ Liman v . Switzerland [GC] , n o. 51357/07, § 175, E CH R 2018; Bayatyan v . Armenia [GC], no. 23459/03, § 122, E CH R 2011 ; and Hämäläinen v . Finland [GC], n o. 37359/09, §§ 72-75, E CH R 2014).

110 . In that regard , the Court considers that the following conclusions may be drawn from the analysis of comparative law and of European Union law : first of all , i t would appear that the distinction between contribut ory and non- contribut ory benefits is indeed confirmed in the Council of Europe member States ( see paragraph 31 above ) and represents the general rule in European law ( see paragraphs 32-39 above ). There is, therefore, nothing unusual or arbitrary about it . Secondly , the class ification as “non- contribut ory benefits” of the two benefits in issue in the present case, to wit, an extraordinary invalidity pension and a disability allo wance , is in conformity with the practice of Council of Europe member States and with EU law. Thirdly, it cannot be overlooked that the fact of making entitlement to non-contributory benefits subject to a condition of residence in the paying country is the general rule in almost all the member countries of the Council of Europe and in all three Council of Europe non-member States compared (see paragraph 31 above). That solution was also adopted by the European Union i n Regulation 883/2004/ E C of 29 April 2004 ( see paragraph 36 above ).

I t follows that the approach adopted in the instant case by the Swiss authorities tallies with the solutions used in the Council of Europe and the European Union .

111 . Having regard to the foregoing considerations , the first applicant ’ s interest in receiving the impugned benefits under the same conditions as persons having contributed to the system must yield to the public interest of the respondent S tat e , consisting in guaranteeing the principle of social insurance solidarity , which is particularly important in the case of a non- contribut ory benefit, even if the reason why the first applicant n ever contributed to the system was completely beyond her control or influence. In that regard , the Court considers particularly relevant the Government ’ s argument to the effect that a non-contributory benefit is supposed to guarantee that disabled persons who did not satisfy the conditions for obtaining an ordinary pension could benefit from the solidarity of others and have the requisite means of subsistence to live in Switzerland. However, it is not contrary to the Convention to hold that the preservation of that solidarity mechanism depends on the will and the trust of other people, which requires the grant of benefits to be subject to certain conditions, for example requiring beneficiaries to have their ordinary residence in Switzerland. I t is reasonable for a S tat e granting non-contribut ory benefits not to wish to pay them abroad, particularly if the cost of living in the foreign country in question is considerably lower.

112 . H aving regard to the broad margin of appreciation in the economic and social spheres and to th e principle that the Court respects, a priori , the State ’ s judgment as to what is in the general interest , the Court concludes that the justification for the unequal treatment put forward by the Government is not unreasonable .

113 . I t follows that there has been no violation of A rticle 14 read in co njunction with A rticle 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE

1. The parties ’ submissions

114 . The applicants also alleged a violation of Article 8 taken alone.

115 . As regards the existence of the interference , th e applicants submitt e d that they share d extremely strong family ties and that the lack of benefits would force the first applicant to return to Switzerland , far from her next-of-kin ; if the second applicant had to follow her, she would have to leave h er husband behind in Brazil .

116 . As regards the legitimate aim of the interference , the applicants s tated that the well-being of the domestic economy should be less important than the de privation of the personal autonomy of the first applicant , who would have to be provided for in an expensive institution should she de return to Switzerland alon e.

117 . F or the reasons cited under A rticle 14, they considered that the impugned measure had not been necessary in a democratic society .

118 . Th e Government invite d the Court to declare the complaint under Article 8 inadmissible, as principal submission, f or incompatibility ratione materiae with the Convention pursuant to A rticle 35 § 3 ( a) of the Convention, and in the alternative , as being manifest ly ill- founded .

119 . Th e Government submitted that Switzerland had in no way interfered with the decision of the second applicant and her husband, accompanied by the first applicant , to s ettle in Brazil in order to manage their hotel ; furthermore , the applicants were free to resettle in Switzerland in order to regain entitlement to the impugned benefits .

120 . Th e Government considered that the measure geared to maintaining the solidarity mechanism underpinning the system – which is well known in the system for coordinating social security schemes – of non-exportable non- contribut ory benefits funded from tax resources , protected the country ’ s economic well-being and the rights and freedoms of others .

121 . T h e Government further noted that it had not been established that departure from Brazil would be extremely unsafe ; in the event of a return to Switzerland , even though no country could be expected to protect people from all the vicissitudes of lif e, the first applicant would be surrounded by her father and her family , which ruled out automatic institution alisation and loss of autonomy .

2. The Court ’ s assessment

122 . Having regard to the applicability of A rticle 14 read in co njunction with A rticle 8 ( see paragraphs 57-67 above ), the Court has noted that the applicants ’ complaint falls within the ambit of A rticle 8. For essentially the same reasons , it considers that that provision is applicable to the present complaint .

123 . The Court considers that the refusal to pay the benefits abroad amounts to an interference with the applicants ’ rights as secured under A rticle 8 in so far as the impugned pensions are liable to have repercussions on the organisation of the two applicants ’ family life , as explained in the section on the applicability of A rticle 14 of the Convention ( see paragraphs 65-66 above ).

124 . On the other hand, it considers that the interference was prescribed by la w , in particular under the LPGA and the LAI ( see paragraphs 19-27 above ) and that it pursued a legitimate aim , that is to say social insurance solidarity , which is relevant to the protection of the rights of others and the economic well-being of the country within the meaning of A rticle 8 § 2 of the Convention. The Court also holds that the interference was necessary in a democratic society and was proportionate to the aims sought to be achieved. As regards this latter factor, the Court does n ot consider it unreasonable to make the pay ment of non-contribut ory benefits subject to ordinary residence in Switzerland .

125 . I t follows from the foregoing considerations that this complaint is manifest ly ill- founded and must be rejected pursuant to A rticle 35 §§ 3 ( a) and 4 of the Convention.

FOR THESE REASONS, THE COURT ,

Done in English, and notified in writing on 11 December 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Vincent A. De Gaetano Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are appended to the present judgment :

– joint concurring opinion of Judges Keller and Dedov ;

– dissenting opinion of Judge Serghides.

V.D.G. J.S.P.

JOINT CONCURRING OPINION OF JUDGES KELLER AND DEDOV

1. Even though we voted with the majority in favour of a finding of no violation of A rticle 14 of the Convention, we must respect f u lly express our disagreement as regards the application of A rticle 8 in the present case . Indeed , since the applicants ’ complaint was primarily of a pecuniary nature , we consider that it does not fall within the scope of A rticle 8 .

2. The present case concerns the refusal by the Swiss invalidity insurance fund to maintain the extraordinary invalidity pension and disability allowance ( Hilflosenentschädigung ) in respect of the first applic ant following her change of address and place of ordinary residence. The reason for this is that under Swiss law , beneficiaries of an extraordinary invalidity pension and disability allo wance must have their private address and ordinary residence in Switzerland . Before the Court, the applicants alleged a violation of Article 14 of the Convention read in conjunction with Article 8, on the grounds that the decisive criterion for the first applicant ’ s entitlement to the impugned benefits, that is so say ordinary residence in Switzerland, was the discriminatory one of the type of disability suffered by the applicant – having been disabled since birth – because persons who had become disabled and been able to contribute were entitled to the benefits even if they lived abroad.

3. We consider that the applicants ’ complaint concerning social security benefits is pure ly pecuniary in nature . In line with the joint dissenting opinion of Judges Keller, Spano and Kjølbro in Di Trizio v . Switzerland (n o. 7186/09), we consider that A rticle 8 is not applicable in the instant case . Only A rticle 1 of Protocol No. 1 to the Convention concerns pecuniary rights such as the right to a social welfare benefit . The Court has had recourse to A rticle 1 of Protocol No. 1 and no t to A rticle 8 of the Convention in most case concerning the granting of social security benefits ( see , fo r example , Moskal v. Poland , n o. 10373/05, §§ 93 et s eq. , 15 September 2009 ; Stec and Others v . the Uni ted Kingdom [GC], n os. 65731/01 and 65900/01, § 53, E CH R 2006 ‑ VI ; Koua Poirrez v . France , n o. 40892/98, §§ 43 et s eq. , E CH R 2003 ‑ X ; Kjartan Ásmundsson v . Iceland , n o. 60669/00, §§ 39 et s eq. , E CH R 2004 ‑ IX ; and Wieczorek v. Poland , n o. 18176/05, §§ 56 et s eq. , 8 December 2009). Switzerland has not ratified Protocol No. 1. Consequently , that case-law cannot be appli ed in the present case.

4. As in di Trizio ( cited above , § 62), in paragraph 66 of the present judgment the Court states that it “ considers that the refusal to pay the pension abroad was liable to affect the organisation of the applicants ’ family life ” . This i s not the first time the Court has assessed a social benefits under A rticle 8 of the Convention, as the majority mentioned in paragraphs 61 et s eq. o f the Di Trizio judgment ( with particular reference , as regards a parental leave allowance , to Petrovic v . Austria , 27 March 1998, § 27, Re port on Judgments and Decisions 1998 ‑ II, and Konstantin Markin v . Russia [GC], n o. 30078/06, § 130, E CH R 2012 ( extracts ) and , as regards a large- famil y allowance, to Dhahbi v . Italy , n o. 17120/09, § 41, 8 April 2014). However , as pointed out by the diss ent ing judges in di Trizio , the Court “ omit[s] to establish the relevant principles for determining the scope of application of Article 8 ” .

5. The Court ’ s reasoning in Di Trizio and in the present case impli es that A rticle 8 i s applicable in all cas es where a social security benefit impact s on the person ’ s family ( or private) life . The fact is that a social benefit is always lia ble to impact on the enjoyment or organisation of an individual ’ s family lif e. That reasoning also unjustifiably broadens the scope of A rticle 8 , potentially bring ing any social- security or labour-law issue within the ambit of that provision . That would be contrary to the Court ’ s established case-law to the effect that such issues must be assessed under A rticle 1 of Protocol No. 1 and not A rticle 8 of the Convention.

6. Furthermore , in the instant case, as in Di Trizio , the majority failed to check whether there was a close link between the social benefit in issue and the enjoyment of family lif e. In the cases which we cit e in paragraph 4 above , where the Court found that various benefits fell within the scope of A rticle 8 of the Convention, th e close link was based on the aim of the social benefits . In the present case , as stated by the Federal Court ( see paragraph 15 of the judgment ) and the Government ( see paragraph 49 of the judgment ), th e purpose of the extraordinary invalidity pension and the disability allo wance is not to facilit at e family lif e. As the Government and the Federal Court explained , “ they were designed to allow adult beneficiaries to lead an autonomous, independent life ” ( paragraph 49) and “ are paid regardless of the beneficiaries ’ lifestyle, that is, irrespective of whether they live alone, with family or in an institution ” ( paragraph 15). Consequently , we cannot subscribe to the Court ’ s position as set out in paragraph 66 to the effect that the refusal to pay the pension abroad was liable to affect the organisation of the applicants ’ family life .

7. The Court should not extend the scope of A rticle 8 of the Convention to the point of duplicating A rticle 1 of Protocol No. 1. If a country – such as Switzerland – has not ratified Protocol No. 1, i t should not be held responsible for violating that Protocol by dint of the – unjustified – application of other Convention articles . Th e principle that a S tate cannot be held responsible on the basi s of a Protocol which it has not ratified through the intermediary of another provision of the Convention is established in the case-law of the Court . As regards A rticle 2 of Protocol No. 4, fo r example , in the judgment in the case of Austin and Others v . the Uni ted Kingdom , the Grand Chamber pointed out that “ Article 5 should not, in principle, be interpreted in such a way as to incorporate the requirements of Protocol No. 4 in respect of States which have not ratified it, including the United Kingdom ” ( see Austin and Others v . the Uni ted Kingdom [GC], n o. 39692/09, 40713/09 and 41008/09, § 55, E CH R 2012). Previously , the Court had already used the sa me reasoning vis-à-vis Protocol No. 12, o r vis-à-vis A rticle 14 of the Convention , to reiterate that that provision does not set out any independent general ban on discrimination ( see Sahin v . Germany [GC], n o. 30943/96, § 85, E CH R 2003 ‑ VIII), or again vis-à-vis the guarantees of A rticle 1 of Protocol No. 7 , to find the inapplicability of A rticle 6 to expulsion procedures ( see Maaouia v . France [GC], n o. 39652/98, § 36, E CH R 2000-X).

8. Having regard to the foregoing considerations, we consider that the Court should have found that A rticle 8 was not applicable in the present case owing to the pecuniary nature of the complaint, or at least that it should have left the question of the applicability of A rticle 8 open . The Court should also have affirmed that pecuniary complaints should rather be considered under A rticle 1 of Protocol No. 1. Moreover, having regard to the fact that Switzerland has not ratified Protocol No. 1, the Court ought to have declared inadmissible the complaint under Article 8 for incompatibility ratione materiae with the Convention, pursuant to Article 35 § 3 (a) of the Convention.

DISSENTING OPINION OF JUDGE SERGHIDES

1. The present case presents a novel issue and deserves particular attention since it is the first time that the Court has had to deal with discrimination within different groups of people with disabilities.

2. I fully agree with the majority in finding Article 8 and, as a result, Article 14, applicable. The judgment sums up the dilemma faced by the two applicants in paragraph 66. They could either decide to stay in Brazil, where the second applicant is married and enjoys her family life with a French citizen, who runs a hotel; this choice would entail the loss of the pensions that the first applicant would receive in Switzerland. Or the applicants could decide to receive the pensions, and in this case, the second applicant would have to choose between staying in Brazil with her husband, which means living separately from her daughter, of whom she is the guardian, or following her to Switzerland, which would most likely mean splitting up with her husband, who, for professional reasons, cannot be expected to move to Switzerland.

3. The applicability of Article 8 and therefore of Article 14 having been established, I am unable to agree with the majority that there has been no violation of Article 14, taken in conjunction with Article 8 of the Convention. The decisive criterion that the first applicant must be ordinarily resident in Switzerland in order to obtain the disability benefits at issue depended, in the last analysis, on the discriminatory treatment of her congenital disability, and more specifically on the fact that she was born disabled and had never been able to contribute for the purposes of receiving a pension. Conversely, persons who were not born with a disability but became disabled later on in their lives and had been able to contribute at some point of time before their invalidity, even for at least one year (see paragraph 24 of the judgment), can receive the disability benefits even if they too are domiciled outside Switzerland, like the first applicant.

4. Article 14 of the Convention on the prohibition of discrimination specifically mentions “birth” as a discriminatory ground to be avoided in securing the enjoyment of the rights and freedoms set forth in the Convention. The discrimination made in the present case was based on just such a ground and had no objective and reasonable justification.

5. In addition, the domestic law was very strict, brooking no exceptions. It would have been more acceptable, for instance, to reduce the pensions in line with the living costs abroad (in this case in Brazil). Regarding the importance of taking into account the realities of every case, in Emonet v. Switzerland , no. 39051/03, 13 December 2007, the Court held as follows:

“86. In the light of the above, ‘ respect ’ for the applicants ’ family life required that biological and social reality be taken into account to avoid the blind, mechanical application of the provisions of the law to this very particular situation for which they were clearly not intended. Failure to take such considerations into account flew in the face of the wishes of the persons concerned, without actually benefiting anybody ... ”

6. With all due respect, the Swiss courts failed to assess the situation in the light of the Convention and failed to protect sufficiently the rights of the applicants. The Federal Tribunal did not even admit that Article 8 of the Convention was applicable. The domestic interpretation was very restrictive and, as a result, did not allow at all for balancing up the different competing interests, with the result that no relevant and sufficient reasons were given for the measure.

7. Indeed, the Convention protects “effective and practical” rights: in the present case, this means that the courts should have taken into account the social, medical and family realities of the case. Since, in the applicants ’ case, the courts did not take those realities into account, there had been a violation of Article 14. In fact, the courts applied the law in a “mechanical” manner. They did not try to accommodate the applicants ’ complex and exceptional situation.

8. It should be made clear that the prohibition of non-discrimination applies not only in relation to the Convention rights, but also in relation to their limitations and restrictions. As the Commission put it in Grandrath v. Germany , no. 2299/64, 12 December 1966, “if a restriction which is in itself permissible under paragraph 2 of one of the above Articles [i.e. Articles 8-11] is imposed in a discriminatory manner, there would be a violation of Article 14 in conjunction with the Article concerned.” In the present case, the limitation or restriction imposed under Article 8 of the Convention for the first applicant to be entitled to receive the disability benefits, that is, to be ordinarily resident in Switzerland, was imposed in a discriminatory manner.

9. The criterion for receiving these disability benefits, having regard to their nature and the reason why they are provided, should have been the state of health of the affected persons and their need for economic support from the State on account of their disability, and not whether they were born handicapped and had thus been unable to make contributions to the State at any point in their lives. Consequently, and with regard to their right to receive disability benefits, all persons with disability problems should have been placed in the same boat and not in two different boats, with the result of being treated separately and differently, according to criteria that are irrelevant to their disability.

10. The majority attached great importance to the fact that this distinction between contributory and non-contributory pensions also exists in the EU and in most of the legislations of the Council of Europe member States. However, this comparison-based argument of the majority should not be the only criterion for a State in exercising its margin of appreciation. As the Court held in Emonet and Others v. Switzerland , cited above, the States ’ margin of appreciation may vary according to the nature of the activities restricted and the aims pursued by the restrictions:

“68 ... The Court recognises that it is for the national authorities to make the initial assessment of necessity, though the final evaluation as to whether the reasons cited for the interference are ‘ relevant and sufficient ’ is one for this Court. A margin of appreciation is left to Contracting States in the context of this assessment, which varies according to the nature of the activities restricted and of the aims pursued by the restrictions ... ” [1] (emphasis added).

11. In other words, the fact that EU law provides for the same distinction, on which the judgment tries to find support, does not mean that this very distinction cannot be contrary to the Convention, and in particular to Article 14 read in conjunction with Article 8. What is important is that the Court has not so far assessed the compatibility of the distinction in question with the Convention provisions, especially Article 8, and the present case would have been an excellent opportunity for the Court to decide the issue, but the majority preferred to simply defer to the relevant EU rules in order to be satisfied that there was no breach of Article 14.

12. It follows from Emonet and Others , cited above, that besides the comparative approach , the nature of the measure as well as the aims of the restriction also have to be taken into consideration. As far as the nature of the measure is concerned, the present case entails a request for social benefits, based on Swiss law, in favour of a person who has suffered from a major disability from birth. Therefore, the application is relevant to the most vulnerable group of persons who have been victims, and continue to be victims, of stigmatisation, disadvantages and discrimination in society. Regarding the aim pursued by the distinction, the Government invokes solidarity within the insurance regime, but this is only a very general and abstract principle that cannot be overestimated in the present case. Bearing in mind this solidarity, which did not benefit anybody in the instance case, the authorities clearly tried to bind the first applicant to Switzerland, with a real risk of her being sent to a special care home since the second applicant might chose to enjoy her family life with her husband in Brazil and because the first applicant ’ s father cannot take care of her. Such a solution is of course diametrically opposed to the spirit and purposes of contemporary laws in the sphere of protecting persons with disabilities, geared to integrating such persons in society as far as possible.

13. As the Court rightly said in paragraph 97 of the judgment, the second applicant, that is to say the first applicant ’ s mother, can claim to be a victim, at least indirectly or by association. She is not only the mother but also the tutor of the first applicant. Hence, I consider that the second applicant is a victim within the scope of Article 34 of the Convention. This conclusion is supported by the Court ’ s findings in Guberina v. Croatia , no. 23682/13, §§ 76-79, 22 March 2016.

14 . By violating Article 14 of the Convention read in conjunction with the two applicants ’ right to respect for family life under Article 8, the national authorities did not effectively secure that right. Putting it slightly differently, in the present case the violation of the principle or rule of prohibition of discrimination led to the violation of the principle of effectiveness or effective protection of the applicants ’ right to respect for family life. In my view, the national authorities overstepped their margin of appreciation, since they completely deprived the applicants of the protection of their right to respect for family life, in a discriminatory manner that was not based on reasonable, just and objective criteria.

15. It is unfortunate that the Swiss courts ’ decisions have in fact confronted the second applicant, a caring mother who is dependent on the social benefits at stake, with a cruel and unjust choice between, on the one hand, abandoning her husband in Brazil and returning to Switzerland with her daughter, and on the other, sending her daughter back to Switzerland alone in order to benefit from the pensions but with the real risk of being taken into a special care home because no one else can take care of her.

16. To conclude, I have no doubt that, in the instant case, the general and abstract principle of solidarity within the insurance system is by far outweighed by the private interests of the applicants. It is my humble view that the applicants should not be “punished” for the circumstance that the first applicant was born with a disability, or even be discriminated against on precisely that ground, to the detriment of their shared family life.

17. Consequently, I consider that there has been a violation of Article 14 read in conjunction with Article 8.

[1] See also Dickson v. the United Kingdom , [GC], no. 44362/04, § 78, 4 December 2007.