CASE OF SCHULER-ZGRAGGEN v. SWITZERLAND (ARTICLE 50)
Pecuniary damage - financial award
C. Russo
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