Lexploria

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgments of the European Court of Human

Rights in the Schuler-Zgraggen case delivered on 24 June 1993 and

on 31 January 1995 and transmitted the same days to the Committee

of Ministers;

Recalling that the case originated in an application

(No. 14518/89) against Switzerland lodged with the European

Commission of Human Rights on 29 December 1988 under Article 25

(art. 25) of the Convention by Ms Margit Schuler-Zgraggen, a Swiss

national, and that the Commission declared admissible the

complaints, first, that her right to a fair hearing had been

infringed because she had had insufficient access to the file of

the Appeals Board and because the Federal Insurance Court had not

held an oral hearing; and, secondly, that the Federal Insurance

Court's assumption that she would have given up working even if she

had not had health problems amounted to discrimination on the

ground of sex;

Recalling that the case was brought before the Court by the

Commission on 25 May 1992 and by the Government of Switzerland on

5 August 1992;

Whereas in its judgment of 24 June 1993 the Court:

- held unanimously that Article 6, paragraph 1 (art. 6-1), of

the Convention, applied in the case;

- dismissed unanimously the government's preliminary

objections;

- held unanimously that it had no jurisdiction to entertain

the complaint concerning the independence of the medical experts;

- held by eight votes to one that there had been no breach of

Article 6, paragraph 1 (art. 6-1), of the Convention;

- held by eight votes to one that there had been a violation

of Article 14 taken together with Article 6, paragraph 1

(art. 14+6-1), of the Convention;

- held unanimously that this judgment in itself constituted

sufficient just satisfaction as to the alleged non-pecuniary

damage;

- held, as matters stood, by eight votes to one that the

respondent state was to pay the applicant, within three months,

7 500 Swiss francs in respect of costs and expenses;

- held by eight votes to one that the question of the

application of Article 50 (art. 50) was not ready for decision as

regards pecuniary damage;

Recalling that, following this judgment, the Swiss authorities

availed themselves for the first time of the new revision procedure

provided for in Article 139.a of the Federal Act on the

Organisation of the Judiciary (in force since 15 February 1992)

which allows for the re-opening of internal judicial proceedings

after a binding decision by the European Court of Human Rights or

the Committee of Ministers of the Council of Europe;

Whereas in the course of this revision procedure, the aim of

which is to ensure full reparation of the consequences flowing from

a judgment of the Court, in conformity with the spirit of

Article 50 (art. 50) of the Convention, the Federal Insurance Court

awarded the applicant by judgment of 24 March 1994, with

retroactive effect, a full invalidity pension, namely a sum of

218 512 Swiss francs, comprising the pension due from 1 May 1984 to

20 April 1994;

Whereas on the other hand, and in accordance with a constant

case-law, the Federal Insurance Court refused to grant interests on

the sum awarded;

Whereas, following this judgment, the applicant maintained

that the question of the reparation of the pecuniary damage she had

suffered had not been fully solved by the Federal Insurance Court's

judgment of 24 March 1994 and claimed, before the Court, the

corresponding interests;

Whereas in its judgment of 31 January 1995 the Court:

- held by seven votes to two that the respondent state was to

pay the applicant, within three months, 25 000 Swiss francs in

respect of pecuniary damage;

- dismissed unanimously the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of the

Convention;

Having invited the Government of Switzerland to inform it of

the measures which had been taken in consequence of the judgments

of 24 June 1993 and 31 January 1995, having regard to Switzerland's

obligation under Article 53 (art. 53) of the Convention to abide by

it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Switzerland gave the Committee

information about the measures taken in consequence of the

judgments, which information appears in the appendix to this

resolution;

Having satisfied itself that on 5 August 1993, within the

time-limit set, the Government of Switzerland paid the applicant

the sum provided for in the judgment of 24 June 1993 and that

on 27 April 1995, also within the time-limit set, it paid the sum

provided for in the judgment of 31 January 1995,

Declares, after having taken note of the information supplied

by the Government of Switzerland, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (95) 95

Information provided by the Government of Switzerland

during the examination of the Schuler-Zgraggen case

by the Committee of Ministers

Following the European Court of Human Rights' judgment on the

case of 24 June 1993, the Swiss Government formally served this

judgment on the applicant on 2 July 1993. Within a period of

ninety days from the date of notification, the applicant had the

possibility, in accordance with Articles 139.a and 141,

paragraph 1.c, of the Federal Act on the Organisation of the

Judiciary, as amended from 15 February 1992, of requesting the

revision of the Federal Insurance Court's judgment. On

21 June 1988, the applicant availed herself of this procedural

opportunity.

In the opinion of the Swiss Government, this revision

procedure should, in the spirit of the Article 50 (art. 50) of the

Convention, allow Switzerland to fully repair the consequences of

the violation of the Convention found by the Court. In fact, the

Federal Insurance Court awarded the applicant, retroactively, an

invalidity pension of 218 512 Swiss francs, for the period

1 May 1986 to 20 April 1994. However, in accordance with a

constant practice it did not award any interests on this sum.

The Swiss Government was of the view that the grant and

payment of this retroactive invalidity pension constituted full

reparation of the pecuniary damage under Article 50 (art. 50) of

the Convention. This the more so as when the Court decides itself

the question of pecuniary damages under Article 50 (art. 50) it

limits itself, in general, to awarding a lump sum, ex aeque et

bono, without distinguishing between the damage itself and the

interests.

However, before the Court, the applicant claimed interests on

the invalidity pension awarded by the Federal Insurance Court and

in its Article 50 (art. 50) judgment of 31 January 1995, the Court,

deciding on an equitable basis, awarded her 25 000 Swiss francs for

the "remaining pecuniary damage". It stressed, however, that it

"fully appreciates the importance of [the Federal Insurance

Court's] judgment of 24 March 1994 for the execution of judgments

delivered at Strasbourg" and observed that "the Federal Insurance

Court thereby showed its commitment to the Convention and the

Court's case-law" (paragraph 14 of the judgment).

The sum of 25 000 Swiss francs awarded by the Court was paid

to the applicant on 27 April 1995. The 7 500 Swiss francs awarded

for costs and expenses in the judgment of 24 June 1993 were paid on

5 August 1993.

As far as the more general consequences of the judgment are

concerned (on the level of legislation and of case-law), the Swiss

Government recalls that the violation found by the Court in its

judgment of 24 June 1993 only concerned the discriminatory

assessment of the evidence (Article 14 of the Convention, taken in

conjunction with Article 6, paragraph 1, of the Convention)

(art. 14+6-1). It therefore finds no reason to modify Swiss

legislation. The principle of the non-discriminatory assessment of

evidence is guaranteed by Article 4 of the Federal Constitution and

by the new provisions of the Civil Code regarding the general

consequences of marriage, which provisions entered into force

on 1 January 1988 (see in this connection the Federal Insurance

Court's judgment of 22 August 1991, published in the official

collection of the Federal Court's judgment, ATF 117 V 194ss).

Finally, the Swiss Government draws the Committee of

Minister's attention to the fact that the Federal Insurance Court

had already modified its case-law in the direction indicated by the

European Court even before the Commission's adoption of its report

on 7 April 1992 (see the above-cited judgment from the Federal

Insurance Court of 22 August 1991). The Government did, in fact,

bring this new case-law to the attention both of the Commission and

the Court in the context of the proceedings engaged before these

organs. This case-law has been confirmed since.

In the light of the above, the Government of Switzerland

considers that Switzerland has fulfilled its obligations under

Article 53 (art. 53) of the Convention.

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CASE OF SCHULER-ZGRAGGEN AGAINST SWITZERLAND

CASE OF SCHULER-ZGRAGGEN AGAINST SWITZERLAND

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