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"Due Process, Human Rights, And International Dispute Settlement: Schuler-Zgraggen v. Switzerland (1993)" by Briana West


Due Process, Human Rights and International Dispute Settlement: Schuler-Zgraggen v. Switzerland (1993)

by Briana West

Introduction To The Case

Margrit Schuler-Zgraggen (hereinafter "the Applicant"), a Swiss citizen born in 1948, was employed by an industrial company in Altdorf, Switzerland, in 1973. The applicant received a salary from the company, regularly paying contributions to the Swiss Federal Invalidity Insurance ("the FII"). Two years later, Ms. Schuler-Zgraggen was diagnosed with open lung tuberculosis. Unable to work, the applicant applied to the FII in 1976 in order to receive a pension. Later that same year, the Compensation Office of the Swiss Machine and Metal Industry ("the Office") granted her only half an invalidity pension. See Schuler-Zgraggen v. Switzerland (European Comm'n of Human Rights) (Report of the Commission) (Application No. 14518/89) Adopted 7 April 1992, Page 1, available at http://www.menschenrechte.ac.at/orig/92_4/Schuler-Zgraggen.pdf.

In 1978, taking the applicant's illness into account, the Company dismissed her with effect from 1979. She filed a further application for a pension to the FII. On 25 March 1980, the Office awarded the applicant a full invalidity pension retroactive from 1 May 1978, concluding she was mentally and physically unfit to remain employed. See 4 YEARBOOK OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 201 (Vol. 36, 1993). After reviewing her circumstances in 1981 and 1982, the FII authorities confirmed the pension which was reviewed after she gave birth to a son on May 4, 1984. A medication examination was ordered for the applicant by the FII Commission of the Canton of Uri in 1985, which was to be performed by the FII Medical Observation Centre ("the Centre"). The Centre prepared a report on January 14, 1986, concluding the applicant was unfit for employment.

On March 21, 1986, the FII Board terminated her pension. The FII Commission then reasoned the applicant was a maternal character taking on new responsibilities as a parent and, therefore, had the ability to take care of her household and child. See Schuler-Zgraggen v. Switzerland (European Comm'n of Human Rights) (Report of the Commission) (Application No. 14518/89) Adopted 7 April 1992, Page 5, available at http://www.menschenrechte.ac.at/orig/92_4/Schuler-Zgraggen.pdf.

On May 26, 1986, the applicant went to the FII Board's headquarters to inspect her medical file, but she was barred from viewing it. She appealed to the FII Appeals Board demanding to see her file, but her appeal which was rejected. In 1987, appealing to review her medical documents a second time, the FII Appeals Board dismissed her appeal for a pension, as well as her appeal to view her medical file. Later that same year, the applicant wrote to the FII Appeals Board and requested her medical file be made available to her in order to begin legal proceedings. The FII Appeals Board rejected her appeal. The applicant then lodged an administrative law appeal with the Federal Insurance Court against the decision of the FII Appeals Board. She sought leave to inspect the whole of her medical file. The Federal Insurance Court upheld the applicant's appeal against the FII Appeals Board. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. (1993), para. 21.

Although her first appeal was upheld, Ms. Schuler-Zgraggen brought a second appeal in June 1988 to the Federal Insurance Court, arguing that she was entitled to a half-pension due to financial difficulties. The Federal Insurance Court remitted the case to the FII Commission requesting a decision whether this condition had been satisfied. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. (1993), para. 28. In the Federal Insurance Court's Rules of Procedure, Rule 14 para. 2, the parties do not have a right to demand a hearing in appeal proceedings and only the presiding judge may order a hearing to be held. The applicant applied to the European Commission on Human Rights (hereafter ECmHR) in 1988 complaining her right to a fair trial under the European Convention on Human Rights ("the Convention") Article 6 para. 1 had been violated due to the fact no hearing was given in the Federal Insurance Court.

The Commission decided in the negative. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. (1993), para. 29. The case was then referred to the European Court of Human Rights (ECHR) by the ECmHR and the Government of the Swiss Confederation in 1992. See id. at para. 1.

Relevant Legal Materials

The relevant part of the European Convention on Human Rights ("the Convention") provides:

"6. (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a . . . public hearing . . . ." Convention for the Protection of Human Rights and Fundamental Freedoms. As amended by Protocols Nos. 11 and 14. June 2010. Available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf.

Summary Of Arguments

Applicant

The applicant claimed to be the victim of breaches of Article 6 para. 1 of the Convention with respect to a public hearing in the Federal Insurance Court which disabled said court from forming its own opinion of her outside of the information detailed in her medical files. She claimed she had acquired the status of 'victim' as a result of said breach. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. (1993), para. 43-49.

Respondent

In its memorial, the respondent requested the court to hold that the applicant did not have a victim status to bring a claim under Article 6 para. 1 of the Convention and, therefore, no breach had been made with respect to the right to an adversarial hearing. The respondent submitted the applicant did not exhaust domestic remedies because she failed to apply to the Federal Insurance Court for the proceedings to be public. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. (1993), para. 54.

There were also other arguments. Firstly, the respondent claimed that social-security disputes made in oral presentations specified technical points are difficult to adduce. Secondly, the number of judgments per year would decrease if public hearings were allowed in such technical matters; lengthy proceedings would jeopardize the access to the Supreme Court. See id. at 57-58.

Summary Of The Judgment

On June 24, 1993, the court delivered an 8-1 judgment that the Federal Insurance Court was not in violation of Article 6(1) of the Convention. See 4 YEARBOOK OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS, supra. The court reasoned that the public character of hearings constituted a fundamental principle found in Article 6 para. 1. The provision does not prevent one from waiving his or her right, but a waiver to such a right must be "made in an unequivocal manner and must not run counter to any important public interest." See id. The Federal Insurance Court's Rules provide a hearing only "on an application by one of the parties or of [the presiding judge's] own motion." Court proceedings in the Federal Insurance Court do not generally take place with a public hearing and, therefore, the applicant should have applied for one. It is possible she unequivocally waived her right at that point. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. (1993), Para. 58.

The court held that a public hearing was not necessary in the matter because the issue of public interest was not involved. The court continued to explain that the dispute was a highly technical one; it was better dealt with only in writing and not in oral argument proceedings. In addition, the court held, given the medical nature of the case, the applicant probably would not have wanted the public present to listen to the details contained in her medical documents. Concluding its judgment, the court decided that systematically holding hearings might pose as an obstacle to "the particular diligence required in social-security cases," resulting in a lack of compliance with the reasonable time requirement provided for in Article 6 para. 1 of the Convention.

Evaluation And Commentary

In an opinion dissenting in part, Judge Walsh argued that there was in fact a breach of Article 6 para. 1 of the Convention regarding the absence of an oral hearing in the Federal Insurance Court proceedings. The Rules of Procedure of the Federal Insurance Court provide that an oral hearing may take place either by way of application of a party or a motion by the presiding Judge. The Convention not only provides, but requires an oral hearing unless the parties waive their right.

I agree with Judge Walsh in his opinion regarding the fact that the applicant was never made aware of the possibility to secure such an agreement between the parties. An individual cannot undertake the intellectual and legal practice in order to represent themselves alone before the court; they lack the legal educational background. I also agree with his view that the majority of the court was wrong in assuming the applicant "unequivocally waived her right" because she did not request a public hearing. Judge Walsh believes Article 6 of the Convention does not imply a burden on an applicant to request an oral hearing. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. 1993, Para. 2 dissenting opinion. This is surely an argument in favor of the applicant.

Regarding the technicality of the dispute, Judge Walsh is of the opinion that the majority of the court was undoubtedly wrong in finding that oral arguments given on highly technical matters would only burden the court and prevent individuals from exhausting their remedies at the supreme court level. See Schuler-Zgraggen v. Switzerland, No. 14518/89, Eur. Ct. H.R. 1993, Para. 2 dissenting opinion. In fact, he questioned whether the dispute was even a technical matter at all. See id.

In my opinion, the merits regarding the issue of pensions is a technical matter, but the issue of whether or not an individual has a right to a public hearing is not such a matter. Instead, it is a matter of a civil right. Judge Walsh did not acknowledge the technical difficulty argument as a ground for denying a public hearing, specifically when the applicant did not agree to waive such a right. To push aside an individual's civil rights in order to maintain an administrative order within the legal system is absurd, in my opinion.

It is true that the court, as of January 2012, has 151,600 pending applications. See THE EUROPEAN COURT OF HUMAN RIGHTS IN FACTS AND FIGURES 2011, European Court of Human Rights, January 2012, at 5. Yet even taking that fact into consideration, I still do not think it is right for such a prestigious court to so blithely rule against an individual for which its very basis of jurisdiction, the Convention, was designed to protect.

Briana West received her LL.B. from the University of Edinburgh School of Law in Scotland in 2009. While a student in the UK, she placed in the top 10 out of 100 oralists at the Telders International Law Moot Court Competition at the International Court of Justice. As a student at the University of Geneva in Switzerland where she earned her LL.M. in International Dispute Settlement, she also participated in a moot arbitration at the International Chamber of Commerce in Paris, France. She is particularly interested in fields of International Law, specifically public, criminal, and arbitration.

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This page contains a single entry from the blog posted on February 17, 2013 3:48 PM.

The previous post in this blog was "A Foray Into The Appellate World" by Anne Jelliff.

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