SECOND SECTION

Application no. 7318/09 C.M. against Switzerland lodged on 26 January 2009

STATEMENT OF FACTS

The appl icant, C.M. , is a Swiss national, who was born in 1945 and lives in Zug.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 29 May 2001 the Zürich Social Insurance Court ordered the ASGA pension fund (hereafter: pension fund) to pay the applicant a pension retroactively from 11 June 1993. The judgment became final.

On 29 August 2003 the pension fund informed the applicant about the payment of arrears. The applicant initiated proceeding in the Zürich Social Insurance Court on 22 December 2003, claiming further payments and a recalculation of interest. After an out-of-court settlement on 1 April 2004 the applicant withdrew the proceedings.

On 14 September 2007 the applicant again lodged a claim with the Zürich Social Insurance Court against the pension fund for further payment and 5 % interest as from 11 June 1998. He alleged that his pension had been unlawfully reduced by the defendant. He further asked for a reduction of a “waiting period of 720 days”.

In its response the pension fund referred to the settlement of 1 April 2004 and asked for dismissal of the claim.

In a judgment of 12 March 2008 the Zürich Social Insurance Court dismissed the applicant ’ s claim, finding that the settlement covered the claim in these proceedings and therefore had become res iudicata by the withdrawal of the proceedings in April 2004.

The applicant appealed against the judgment in a letter of 19 April 2008. He complained that he had received the defendant ’ s response of 19 October 2007 only on 10 March 2008. As the judgment had already been pronounced on 12 March 2008 he had not been granted any possibility to reply. He further argued that he had been deceived in April 2004 when he agreed to the settlement, as he had not been aware at that time of the judgment of the Federal Supreme Co urt for Insurance Matters of 24 November 2003, whereas the pension fund must have been fully aware of that judgment. Therefore, he claimed it was the pension fund ’ s intention to deceive him.

In a judgment of 8 August 2008 the Federal Supreme Court dismissed the applicant ’ s appeal. It pointed out that it was bound by the factual findings of the first instance court. It qualified the claims of the applicant with regard to the alleged deceit as a new submission on appeal, which was inadmissible.

It further held that although the claim for further pension payments was not res iudicata , the applicant could not challenge the out-of-court settlement on the ground of deceit any longer. The Federal Supreme Court held that he could have known about the judgment of 24 November 2003 beforehand. It had already been published on the internet and in several law journals at the time of the settlement. The court did not respond to the applicant ’ s complaint about not being able to comment on the defendant ’ s submissions.

B. Relevant domestic law

The relevant provisions of the domestic law as applicable at the time of the instant proceedings read as follows:

Federal Supreme Court Act – Bundesgerichtsgesetz – of 17 June 2005 (in force as of 1 January 2007)

Article 99

1. New facts or evidence may be submitted only to the extent that the judgment of the lower court gave cause for such submissions.

2. New claims are inadmissible.

Article 102

Exchange of written submissions

1. Insofar as necessary, the Federal Supreme Court serves the appeal on the previous court and on all parties involved in the proceedings and on relevant authorities for observations and sets a time limit for submissions.

2. The lower court transmits the records of the case in the same period.

3. In general, there is no subsequent exchange of written submissions.

Article 121

Violation of procedural rules

The revision of a judgment of the Federal Supreme Court may be requested if:

a. rules concerning the composition of the court or concerning bias have been violated;

b. the court granted more or something else than what was asked for, without being authorised by law to do so, or less than the defendant had acknowledged;

c. a claim has remained without judgment;

d. the court inadvertently has not taken into account relevant facts contained in the record.

Law on the Social Security Court of the Canton Zurich – Gesetz über das Sozialversicherungsgericht – of 7 March 1993

Section 19

1. The other party shall have the opportunity to submit written comments. The evidence referred to shall be specified and to the extent possible submitted at the same time.

2. If the complaint is inadmissible or manifestly ill-founded the court may decide immediately without prior hearing of the other party.

3. A further exchange of written submissions may be ordered, or if the circumstances warrant it, an oral hearing can be scheduled.

4. The parties will be requested to complete their submissions if they were incomplete or unclear.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the proceedings before the first instance court were unfair as his right to reply to the written submissions of the defendant was violated. On appeal his right to fair proceedings was violated as an exchange of written submissions has not taken place before the Federal Supreme Court. He alleges that the proceedings before the Federal Supreme Court are not predictable and amount to secret proceedings. He further alleges that the out-of-court settlement was drafted in an unclear manner on purpose.

Invoking Article 13 of the Convention the applicant finally complains that he had no effective domestic remedy at hand to complain about the aforementioned violation of Ar ticle 6 § 1 of the Convention.

QUESTION TO THE GOVERNMENT

Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards his right to comment on the submissions of the defendant?