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.