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.
Full & Egal Universal Law Academy