Information Note on the Court’s case-law 224
December 2018
Belli and Arquier-Martinez v. Switzerland - 65550/13
Judgment 11.12.2018 [Section III]
Article 14
Discrimination
Discontinuation of non-contributory disability benefits owing to residence abroad: no violation
Facts – The applicants are Swiss nationals. The second applicant is the mother and guardian of the first applicant, an adult who has had a disability since birth. While they lived in Switzerland, the first applicant received benefits based on her disability (a special invalidity benefit and a disability allowance). After they moved to Brazil her entitlement to the benefits was discontinued. Under the terms of the relevant legislation the payment of non-contributory benefits is subject to a requirement of habitual residence in Switzerland.
Law – Article 14 in conjunction with Article 8: The applicants complained of discrimination compared with persons who became disabled only after contributing for a time to the invalidity-insurance scheme, as the latter continued to receive their benefits if they moved abroad.
(a) Applicability – The first applicant had been deaf since birth and had difficulty expressing herself in her native language. She was incapable of discernment because of a severe disability for which she had always required full-time care, provided by the second applicant, her mother and guardian. Their situation therefore entailed “further elements of dependency, involving more than the normal emotional ties”, with the result that the guarantees under the “family life” aspect of Article 8 were applicable, exceptionally, to a relationship between adults. Furthermore, the refusal to pay the benefits abroad had been liable to affect the organisation of the applicants’ family life. Consequently, their complaint came within the ambit of Article 8 of the Convention.
(b) Merits – The applicants complained of discrimination based on the fact that the first applicant had lost her entitlement to non-contributory benefits, the payment of which was linked to residence in Switzerland. In their view, they had been treated unequally compared with persons who had been able to contribute to the scheme and who received benefits even if they lived abroad. The discrimination complained of was therefore linked to the nature of the first applicant’s disability, coupled with the type of benefits in question (contributory or non-contributory). The Court accepted that the second applicant could also claim victim status, at least indirectly or by association, in so far as, in addition to the care which she provided, she had instituted the domestic proceedings in her capacity as guardian to her daughter, who was incapable of discernment.
The two types of benefit in issue corresponded to two different sets of circumstances: the ordinary invalidity benefit was aimed at persons who had contributed to the invalidity-insurance scheme, while the disability allowance and the special invalidity benefit were intended for persons who had not contributed. In the Court’s view, the first applicant’s situation was sufficiently similar, albeit not identical, to that of a person whose disability had developed later in life and who received a benefit that was payable abroad. Hence, the contributory or non-contributory nature of the benefits in question could not at this stage decisively rule out finding that the situations were relevantly similar, but should be taken into account in assessing the justification for the difference in treatment.
As to whether the difference in treatment was justified, the Court observed at the outset that, in the instant case, the financial and emotional difficulties alleged by the applicants if they were to return to Switzerland or remain in Brazil without the benefits had resulted from the second applicant’s decision, taken freely, to leave Switzerland notwithstanding the clear and accessible legislation to the effect that the benefits in question were not payable abroad. The applicants could therefore have expected the benefits to be discontinued. Likewise, they could not claim that a return to Switzerland would present insurmountable difficulties for them. As Swiss nationals, it was open to them to move back to Switzerland, where they had lived for most of their lives and where the first applicant continued to visit her father regularly.
Furthermore, the stance taken by the Swiss legislature was consistent with the approach adopted by the member States of the Council of Europe and the European Union. The benefits in question were designed to ensure that disabled persons who did not satisfy the conditions for obtaining an ordinary benefit could secure sufficient means to live in Switzerland thanks to the solidarity of others. In the Court’s view, it was not contrary to the Convention to make that solidarity contingent upon the willingness and trust of others and, accordingly, to make it subject to certain conditions such as a requirement of habitual residence in Switzerland. It was reasonable for a State awarding non-contributory benefits to choose not to pay them to persons resident abroad, especially if the cost of living in the other country was considerably lower than in the State concerned.
Accordingly, the first applicant’s interest in obtaining the payments in question under the same conditions as the recipients of contributory benefits should yield in the present case to the public interest of the respondent State in guaranteeing the principle of solidarity in social-insurance schemes.
In view of the wide margin of appreciation in economic and social matters and the respect due in principle to the legislature’s policy choice, the reasons given to justify the difference in treatment did not appear unreasonable.
Conclusion: no violation (six votes to one).
(See also Di Trizio v. Switzerland, 7186/09, 2 February 2016, Information Note 193)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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