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You are here: BAILII >> Databases >> European Court of Human Rights >> SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50) - 14518/89 [1995] ECHR 2 (31 January 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/2.html Cite as: [1995] ECHR 2, (1996) 21 EHRR 404, 21 EHRR 404

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In the case of Schuler-Zgraggen v. Switzerland (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of

Court A (2), as a Chamber composed of the following judges:

Mr R. Bernhardt, President,

Mr F. Gölcüklü,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr I. Foighel,

Mr A.N. Loizou,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr H. Petzold, Acting Registrar,

Having deliberated in private on 25 May and

25 October 1994 and 25 January 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 17/1992/362/436. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to

the Court since its creation and on the list of the

corresponding originating applications to the Commission.

2. Rules A apply to all cases referred to the Court before

the entry into force of Protocol No. 9 (P9) and thereafter

only to cases concerning States not bound by that Protocol

(P9). They correspond to the Rules that came into force on

1 January 1983, as amended several times subsequently.

_______________

PROCEDURE AND FACTS

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") and by the

Government of the Swiss Confederation ("the Government") on

25 May and 5 August 1992, within the three-month period laid

down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47)

of the Convention. It originated in an application

(no. 14518/89) against the Swiss Confederation lodged with the

Commission under Article 25 (art. 25) by a Swiss national,

Mrs Margrit Schuler-Zgraggen, on 29 December 1988.

2. In a judgment of 24 June 1993 ("the principal judgment")

the Court found that there had been a breach of Article 14 of

the Convention taken together with Article 6 para. 1

(art. 14+6-1), as the assumption that women gave up work when

they gave birth to a child had been the sole basis for the

reasoning in a judgment of the Federal Insurance Court and had

introduced a difference of treatment on the ground of sex

only, a difference that lacked any reasonable and objective

justification (Series A no. 263, pp. 20-22 and 24,

paras. 61-67 and point 5 of the operative provisions).

The Court ruled that its judgment constituted in itself

sufficient just satisfaction in respect of the alleged

non-pecuniary damage and that the respondent State was to pay

the applicant, within three months, 7,500 Swiss francs (CHF)

in respect of costs and expenses (ibid., pp. 22-24, paras. 69

and 76 and points 6-7 of the operative provisions).

3. As the question of the application of Article 50

(art. 50) was not ready for decision as regards the pecuniary

damage, it was reserved in the principal judgment. The Court

invited the Government and the applicant to submit their

written observations within six months and, in particular, to

notify the Court of any agreement they might reach (ibid.,

pp. 23 and 24, para. 74 and point 8 of the operative

provisions).

4. On 7 April 1994 the Agent of the Government informed the

President that in a judgment of 24 March 1994 the Federal

Insurance Court had concluded the rehearing proceedings

commenced under section 139a of the Federal Judicature Act.

Its own judgment of 21 June 1988 had been set aside, together

with the decision of the Canton of Uri Appeals Board for Old

Age, Survivors' and Invalidity Insurance of 8 May 1987 and the

decision of the Invalidity Insurance Board of the Canton of

Uri of 21 March 1986; and the applicant had been granted a

full invalidity pension with effect from 1 May 1986.

5. On 27 April 1994 counsel for the applicant advised the

Registrar that his client did not consider that the

proceedings in Switzerland were terminated and that she had

submitted to the Department of Finance a claim for

compensation in the amount of CHF 40,933.64 based on section 3

of the Act on the liability of the Confederation.

6. On 25 May 1994 the Secretariat of the Commission informed

the Registrar that the Delegate wished to leave the question

of Article 50 (art. 50) to the Court's discretion.

7. On 14 September 1994 the applicant's representative sent

the Registrar a copy of the Federal Council's decision of

12 June 1994 whereby the compensation claim was refused; he

asked the Court to consider the possibility of ruling on his

client's claims as an agreement with the Government seemed

unlikely.

8. On the President's instructions, the Registrar consulted

the Agent of the Government and the Delegate of the

Commission. On 12 October 1994 the Agent said he had nothing

to add to the Federal Council's decision of 12 June 1994. On

the following day the Delegate made it known that he was

leaving the matter to the Court's discretion.

9. On 25 October 1994 the Court decided that in the

circumstances of the case it was unnecessary to hold a

hearing.

AS TO THE LAW

10. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and

if the internal law of the said Party allows only partial

reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured

party."

A. Submissions by the participants in the proceedings

11. Mrs Schuler-Zgraggen maintained that the question of

compensation for pecuniary damage had not been finally settled

by the Federal Insurance Court's judgment of 24 March 1994 in

which her continuing right to a full invalidity pension was

retrospectively recognised (see paragraph 4 above).

She sought interest on that pension in the amount of

CHF 40,933.64. She arrived at that figure by applying a rate

of 5% over the period from 1 May 1986, when payment of the

pension was stopped by decision of the Invalidity Insurance

Board of the Canton of Uri, to 20 April 1994, when the arrears

of pension (CHF 218,512) were paid by the Compensation Office

of the Swiss Machine and Metal Industry.

12. Referring to their decision of 12 June 1994 (see

paragraph 7 above), the Government considered the applicant's

claim to be wholly unjustified.

Without requesting the Court to stay its decision, they

pointed out that the Federal Insurance Court had ruled that it

had no jurisdiction to entertain such an application, stating

that it should be made to the Canton of Uri or the Swiss

Confederation in special proceedings putting the State's

liability in issue.

They contended that Mrs Schuler-Zgraggen's claim had to

be appraised on the basis of domestic law alone, namely the

Federal Act on the liability of the Confederation, members of

its authorities and its officials. Article 50 (art. 50) would

only be relevant if the Federal Insurance Court had given

judgment against the applicant in an administrative-law action

founded on the Act in question.

Moreover, the Government could not, in the instant case,

discern any link between the payment or non-payment of

interest and the claim for just satisfaction. By reopening

the proceedings and setting aside its judgment of 21 June 1988

(Series A no. 263, pp. 12-13, para. 29), the Federal Insurance

Court had made full reparation for the consequences of the

breach of the Convention found by the Court, a breach that had

been due to discrimination on the ground of sex in the taking

and assessing of the evidence that had formed the basis for

appraising the situation, not to the withdrawal of the

invalidity pension. If, after considering

Mrs Schuler-Zgraggen's application for a rehearing, the

Federal Insurance Court had held that the applicant had no

right to such a pension, the breach would still have had to be

regarded as having been remedied.

The Government pointed out, lastly, that the applicant

had been treated in the same way as all others entitled to a

pension who were awarded social-insurance benefits in a court

decision, as interest was not normally paid on a retrospective

pension payment.

13. The Delegate of the Commission left the matter to the

Court's discretion.

B. Decision of the Court

14. The Court takes note of the rehearing proceedings under

section 139a of the Federal Judicature Act which, following

its principal judgment, took place in the Federal Insurance

Court and culminated in the applicant's being awarded a full

invalidity pension with effect from 1 May 1986. It fully

appreciates the importance of that court's judgment of

24 March 1994 for the execution of judgments delivered at

Strasbourg; the Federal Insurance Court thereby showed its

commitment to the Convention and the Court's case-law (see,

mutatis mutandis, the Barberà, Messegué and Jabardo v. Spain

judgment of 13 June 1994, Series A no. 285-C, p. 56,

para. 15).

15. The only issue remaining to be determined is that of the

interest claimed by Mrs Schuler-Zgraggen on the invalidity

pension received in respect of the period between 1 May 1986

and 20 April 1994.

The Court reiterates that "just satisfaction" is to be

afforded "if necessary" and that it is not bound in the matter

by any national legal rule (see the Sunday Times v. the United

Kingdom judgment of 6 November 1980, Series A no. 38, p. 9,

para. 15), in this instance the Federal Insurance Court's

case-law on the awarding of interest. It consequently

considers that it is not for the European Court to pass

judgment on the merits in Swiss law of the Federal Insurance

Court's decision in which the claim in issue was disallowed.

It suffices for it to note that at the end of fresh

proceedings following the Strasbourg judgment, the Federal

Insurance Court recognised that the applicant was entitled to

a full pension and gave retrospective effect to that

recognition. In so doing, it intended to make reparation for

the damage resulting from the breach of the Convention.

However, it did not take into account the passing of time -

about eight years. It therefore appears justified under the

Convention to award some interest for the period in question.

The Court does not, however, agree with the summary and

imprecise method of calculation proposed by

Mrs Schuler-Zgraggen, and in particular with the rate of 5%.

Making its assessment on an equitable basis in accordance

with Article 50 (art. 50), it awards the applicant CHF 25,000

for the remaining pecuniary damage.

FOR THESE REASONS, THE COURT

1. Holds by seven votes to two that the respondent State is

to pay the applicant, within three months, 25,000

(twenty-five thousand) Swiss francs in respect of

pecuniary damage;

2. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and notified in writing on

31 January 1995 pursuant to Rule 55 para. 2, second

sub-paragraph, of Rules of Court A.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the joint

dissenting opinion of Mr Bernhardt and Mr Wildhaber is annexed

to this judgment.

Initialled: R. B.

Initialled: H. P.

JOINT DISSENTING OPINION OF JUDGES BERNHARDT AND WILDHABER

We have voted against the decision to award interest

since we are convinced that the pension finally granted and

paid for the applicant's benefit constitutes sufficient

compensation and that no additional payment of interest is

required.