CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 mai 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 14518/89                       by S.                       against Switzerland             The European Commission of Human Rights sitting in private on 30 May 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 29 December 1988 by S. against Switzerland and registered on 9 January 1989 under file No. 14518/89;           Having regard to:   -        the observations submitted by the respondent Government on 26 June 1990 and the observations in reply submitted by the applicant on 10 September 1990;   -        the submissions of the parties at the hearing on 30 May 1991;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant, a Swiss citizen born in 1948, is a communal employee and housewife residing at Schattdorf in Switzerland.   Before the Commission she is represented by Mr.   L. Minelli, a lawyer practising at Forch in Switzerland.       A.     Particular circumstances of the case   I.           In 1973 the applicant was employed by the D. industrial company in Altdorf in Switzerland.   From her salary she paid regular contributions to the Federal Invalidity Insurance (Invaliden- versicherung).           In spring 1975 the applicant was afflicted by open lung tuberculosis.   On 29 April 1976 she applied to the Invalidity Insurance for a pension as, due to her illness, she was unable to work.           The competent Compensation Office (Ausgleichskasse) of the Swiss Machine and Metal Industry (Schweizerische Maschinen- und Metallindustrie) decided on 24 September 1976 to grant the applicant half an invalidity pension for the period from 1 April to 31 October 1976.           On 28 September 1978 the D. company gave notice to the applicant on account of her illness, as from 1979 onwards.           The applicant filed a further application for a pension to the Invalidity Insurance.   Based on two expert opinions, the Compensation Office decided on 25 March 1980 to award the applicant a full invalidity pension retroactively as from 1 May 1978.   The Office assumed in particular that the applicant was somatically and mentally unfit for employment.           In 1981 and again in 1982 the Insurance reviewed the applicant's situation and, as a result, confirmed the pension.   II.           On 4 May 1984 the applicant gave birth to a son.           Subsequently, the applicant's invalidity pension was reviewed.   In 1985 the Compensation Office ordered the applicant's medical examination by the Medical Observation Centre (Medizinische Abklärungsstelle) of the Invalidity Insurance.           The Medical Observation Centre then requested Drs.   F. and B. to prepare two advisory reports (Konsilien) on the applicant's health, namely a pulmological report and a pschychiatric report, respectively.   Dr.   F. prepared his report on 10 December 1985, Dr.   B. on 24 December 1985.           The Medical Observation Centre prepared its report on 14 January 1986.   The report summarised the advisory reports of Dr.   F. and Dr.   B.   The advisory report of Dr.   B. was also attached to the report of the Medical Observation Centre.   In its report the Centre concluded that the applicant would not at all be able to work as an office employee; her ability to do household work amounted to about 60-70%.           On 21 March 1986 the Compensation Office terminated, as from 1 May 1986, the applicant's pension which by then amounted to 2,016 SFr per month.   The Office considered that, after the birth of her son, her family circumstances had changed substantially in that she now had new duties in respect of the child.   Her health was now also better.   The Compensation Office further considered that according to the expert opinion of the Medical Observation Centre the applicant was able to take care of her household and her child to the extent of 60-70%.           On 21 April 1986 the applicant appealed against this decision to the Appeal Board for Old Age, Survivors' and Invalidity Insurance (Rekurskommission für die Alters-, Hinterlassenen- und Invalidenversicherung) of the Canton of Uri, requesting payment of a full invalidity pension, subsidiarily of half a pension.   She stated inter alia that according to the Federal Invalidity Insurance Act (Bundesgesetz über die Invalidenversicherung) she was entitled to an invalidity pension if her invalidity amounted to at least 66 and 2/3%, which it did.           By letter of 26 May 1986 the applicant, who was at that time not represented by a lawyer, complained to the Invalidity Commission of Canton Uri that her request for consultation of the case-file, which the Appeal Board had transmitted to that Commission, had been refused.   She again requested the case-file and permission to consult photocopies of certain documents.           By letter of 28 July 1986 to the Commission the applicant again requested permission to consult the case-file, in particular with regard to "all medical reports, protocols and laboratory results from 1975-1986" ("alle Arztberichte, Protokolle, Laborauswertungen von 1975-1986").   She also requested photocopies of important documents.           On 8 May 1987 the Appeal Board dismissed the appeal.   At the outset, it found that the right to consult the case-file did not include the right to take documents away (Herausgabe) nor a right to receive photocopies.   It sufficed that the applicant had been granted the opportunity to consult her case-file at the Registry of the Appeal Board.   While the applicant had on numerous occasions been asked to do so, she had not used this opportunity.           In the Appeal Board's opinion it could not be discarded that the applicant, after the birth of her son, would have limited herself to her household even without becoming an invalid.   The Board further found, inter alia with reference to the expert opinion of the Medical Observation Centre, that as a housewife the applicant was not sufficiently disabled to obtain a pension.   The Appeal Board considered that increased working activity could be expected from the applicant, if she at all wanted to work under the prevailing family circumstances.   The refusal of a pension could help the applicant to resolve the neurotic fixation that she was unable to work.           On 11 August 1987 the applicant wrote to the Appeal Board stating that she needed all documents and expert opinions, in order to assess the chances of her litigation.   She referred inter alia to a perfusion scintigram, a lung function test, blood gas analyses and a plethsmograph.           By letter of 13 August 1987 the Appeal Board replied with reference to the various medical documents:   <Translation>   "these constituted the basis for the various medical reports. They are only contained in our case-file to the extent that you are permitted to consult them.   We are not therefore in a position to go beyond and allow you to consult further documents."   <German>   "diese (bildeten) Grundlagen für die jeweiligen Arztberichte ... Sie befinden sich nur im Rahmen des Ihnen gewährten Akteneinsichts- rechts bei unseren Akten.   Wir sind daher nicht in der Lage, darüber hinaus Ihnen weitere Unterlagen zur Einsichtnahme vorzulegen."   III.           Against the decision of the Uri Appeal Board the applicant filed on 20 August 1987 an administrative law appeal (Verwaltungs- gerichtsbeschwerde) with the Federal Insurance Court (Eidgenössisches Versicherungsgericht) in which she requested payment of a full pension or, subsidiarily, that the case should be sent back for renewed decision by the previous instance.   She also requested permission to consult the entire case-file (vollumfängliches Akteneinsichtsrecht).           On 20 October 1987 the Compensation Office filed its observations to the Federal Insurance Court in which it supported termination of the applicant's invalidity pension.   The Federal Social Insurance Office (Bundesamt für Sozialversicherung) filed its observations on 9 November 1987.   With reference to a report of its own medical service it proposed dismissal of the applicant's administrative law appeal.   This report referred inter alia to the expert opinion of the Medical Observation Centre.           By letter of 23 November 1987 the Federal Insurance Court informed the applicant that the entire case-file had been sent to the Uri Appeal Board which "in the next 14 days will hold all documents ready for consultation" ("in den nächsten 14 Tagen alle Akten zur Einsichtnahme bereit halten wird").   The applicant would thereafter have ten days time to supplement her administrative law appeal.           On 30 November 1987 the applicant consulted the case-file at the Uri Appeal Board where she photocopied certain documents.   On 1 December 1987 the case-file was sent back to the Federal Insurance Court.           By letter of 7 December 1987 Mr.   Sch., a lawyer, informed the Federal Insurance Court that he would henceforth represent the applicant.   Mr.   Sch. also asked the Court to transmit the case-file to him.   This the Court did on 11 December 1987.           On 11 January 1988 the applicant filed a supplement to her administrative law appeal with the Federal Insurance Court.   Therein the applicant noted in particular that the expert opinion of the Medical Observation Centre assumed, with reference to the report of Dr.   F., that her lung function was normal.   Yet Dr.   F.'s report was not in the case-file.   The applicant also complained of the arbitrary opinion of the Appeal Board according to which, even if she had not become an invalid, she would on account of the birth of her child limit herself to her household.           On 21 June 1988 the Federal Insurance Court partly upheld the applicant's administrative law appeal in that it determined that, as from 1 May 1986, the applicant's degree of invalidity amounted to 33,3%.   The Court found that, if the conditions of economic hardship were met, the applicant was entitled to half an invalidity pension. As the file contained no information in this respect, the Court sent the case back to the Compensation Office for a new decision based on the considerations of its decision.   The Court's decision was served on the applicant on 2 July 1988.           In its decision the Federal Insurance Court stated that in the present case its examination was not limited to the violation of Federal law and the transgression or the abuse of appreciation (Überschreiten oder Missbrauch des Ermessens).   Rather, it could also examine the appropriateness of the contested decision, and it was not bound by the facts found by the previous instance.   The Court was free, if necessary, to go beyond the application of the parties, either to their advantage or disadvantage.           With regard to the applicant's complaint that the Appeal Board had not handed over to her all the documents for consultation, the Court found that his complaint was now remedied in that the applicant had been able to express herself before the Court; that the latter freely examined the facts and the law; and that in the proceedings before the Court the applicant had been able to consult the documents.           With regard to the pension claim the Court first found, with reference to general life experience (allgemeine Lebenserfahrung) and predominant probability (überwiegende Wahrscheinlichkeit), that it could be assumed that the applicant, whose child was two years old, "would be active solely as a housewife and mother" ("nur als Hausfrau und Mutter tätig wäre").   Thus, it was unnecessary to examine the applicant's ability to work in her previous profession.   Rather, the Court examined if and to what extent the applicant was restricted in her activity as a housewife.   It considered it as sufficient to rely on the expert opinion of the Medical Observation Centre.   While the Court regarded it as a certain defect (gewisser Nachteil) that the pulmological report was not in the case-file, it considered that the internist's examination made it possible to answer the question whether since 1980 the applicant had undergone pulmonal changes. Additional medical examinations were hence unnecessary.   The Court noted that since 1980 the applicant had not been treated on account of tuberculosis and that in this respect she was fully able to work.   On the other hand, she had a neurosis which had meanwhile diminished.       B.       Domestic Law and Practice   I.           The Swiss invalidity insurance is governed by the Federal Invalidity Insurance Act of 1959, and by the Federal Old Age and Survivors' Insurance Act (Bundesgesetz über die Alters- und Hinterlas- senenversicherung) of 1946.   The invalidity insurance is compulsory for all persons residing in Switzerland; persons who are not compulsorily insured, for instance Swiss expatriates, have the possibility voluntarily to be insured (Sections 1 and 2 of the Federal Invalidity Insurance Act).           The invalidity insurance is operated by cantonal and professional associations, in particular the Cantonal Compensation Offices which are supervised by the Confederation.           The invalidity insurance is financed by contributions of the insured and the employer (each paying 1,2% of the insured persons's salary) as well as of the State which currently pays approximately 50% of the entire insurance costs.   The insured's contribution is deducted automatically from his salary.   Children, spouses and widows without employment are dispensed from contributions; for other persons without employment, the annual contributions vary between 36 and 1200 SFr (Section 3 of the Federal Invalidity Insurance Act; Section 3 of the Federal Old Age and Survivors' Insurance Act).   There is no upper limit to the contributions of the insured person and the employer.           According to Section 40 of the Federal Invalidity Insurance Act, a person is entitled (Anspruch) to an insurance benefit if his invalidity amounts to at least 40%.   In this case he is entitled to quarter of a pension.   In the case of invalidity of at least 50%, he is entitled to half a pension.   In the case of invalidity of at least 50%, he is entitled to half a pension, if the invalidity is at least 66 2/3%, a full pension.   Section 40 para. 2 states:   <Translation>   "For the calculation of the invalidity, the salaried income is considered which the insured person could have gained after the invalidity arose, and after conducting any rehabilitation measures, by means of an activity which could reasonably be expected from him, if the situation on the labour market is stable; this income is placed into relation with the salaried income which the person could have gained if he had not become an invalid."   <German>   "Für die Bemessung der Invalidität wird das Erwerbseinkommen, das der Versicherte nach Eintritt der Invalidität und nach Durchführung allfälliger Eingliederungsmassnahmen durch eine ihm zumutbare Tätigkeit bei ausgeglichener Arbeitsmarktlage erzielen könnte, in Beziehung gesetzt zum Erwerbseinkommen, das er erzielen könnte, wenn er nich invalid geworden wäre."           According to Section 36 of this Act taken together with Section 30 of the Federal Old Age and Survivors' Insurance Act, the pension is calculated on the basis of the average yearly income of the insured; this is determined by adding all the income in respect of which the insured has paid contributions, and dividing the sum through the number of years in which contributions were paid.   The maximum pension is limited to double the minimum pension.   Payment of contributions can be enforced.   The claims expire if they have not been made within five years (Sections 15 and 16 of the Federal Old Age and Survivors' Insurance Act).   II.           The Swiss Federal Court has derived from Article 4 of the Swiss Federal Constitution, which enshrines the principle of equality, the constitutional right in proceedings to consult the case-file. However, there is no right to take the case-file away or to prepare photocopies therefrom;   it suffices if the file can be consulted at the seat of the Office concerned and notes can be made (see ATF [Arrêts du Tribunal Fédéral Suisse] 108 Ia 7).   More recently the Federal Court has granted a right to have copies made if they do not cause too much work and too high costs for the authorities (see ATF 112 Ia 377).           With regard to the proceedings before the Appeal Board the Federal Invalidity Insurance Act envisages in Section 69 the possibility of an appeal against orders of Compensation Offices and refers in this respect to Sections 84-86 of the Federal Old Age and Survivors' Insurance Act.   Section 85 para. 1 of this Act states:   <Translation>   "The Cantons determine an Appeal Board which is independent of the administration.   An already existing Court authority can be determined as such.   Persons who have been involved in the preparation or supervision of the insurance may not belong to the Appeal Board or its Secretariat."   <German>   "Die Kantone bestimmen eine von der Verwaltung unabhängige kantonale Rekursbehörde.   Als solche kann eine bereits bestehende Gerichtsbehörde bezeichnet werden.   An der Durchführung der Versicherung oder an der Aufsicht über die Versicherung beteiligte Personen dürfen weder der Rekursbehörde noch ihrem Sekretariat angehören."           Para. 2 of Section 85 mentions various requirements of the appeal proceedings, inter alia that they must be simple, speedy and in principle free of charge, and that the Appeal Board determines the facts ex officio.   Section 85 para. 2(e) states in particular:   <Translation>   "If it is justified under the circumstances, the parties are to be invited to a hearing.   The deliberations of the Appeal Board take place without the presence of the parties."   <Original>   "Rechtfertigen es die Umstände, so sind die Parteien zu einer Verhandlung vorzuladen.   Die Beratung der Rekursbehörde hat in Abwesenheit der Parteien stattzufinden."           With regard to the administrative law proceedings before the Federal Court and the Federal Insurance Court, Section 112 of the Federal Judiciary Act (Organisationsgesetz) states that in certain cases concerning disciplinary punishments an oral hearing must be held.   Para. 2 of Section 111 continues: "In the case of appeals against other orders, the President of the deciding department may order a final hearing with parties' submissions" ("Im Falle von Beschwerden gegen andere Verfügungen kann der Präsident der urteilenden Abteilung eine Schlussverhandlung mit Parteivorträgen anordnen").           According to Article 14 of the Rules of Procedure (Reglement) of the Federal Insurance Court, the parties have no right to demand an oral hearing.   The President may order an oral hearing upon the request of a party or on his own accord.           In the proceedings before the Federal Insurance Court, the applicant can also complain of the inadequateness of the previous decision.   The Court is not bound by the determination of facts by the previous instance.   In its decision the Court is also not bound by the requests of the parties and may decide to their advantage or disadvantage (Section 132 of the Federal Judiciary Act).     COMPLAINTS   1.       The applicant complains under Article 6 para. 1 of the Convention that in the proceedings before the Swiss authorities she had insufficient access to the case-file.   She submits that while the opposing party could consult the documents at leisure in its own office, she only had the possibility of consulting the documents at the Uri Court Registry, and that the documents were not handed out to her and no copies were prepared for her.   The applicant, who points out that the Medical Observation Centre is not a truly independent body, also complains that, in the proceedings before the Federal Court, one particular document, namely a pulmological expert opinion of Dr.F., was never shown to her and that she could not comment thereupon before the Federal Insurance Court.   Thus, no evidence proceedings were conducted before this Court.   2.       The applicant further complains under Article 6 para. 1 of the Convention of the various proceedings and the ensuing decisions.   She claims that she was not heard either by the Appeal Board or by the Federal Insurance Court.   By assuming that she would be active solely as a mother the Court was also not deciding impartially.   The applicant submits in particular that for a layperson the Appeal Board does not appear to be a Court and that in the light of the Swiss interpretative declaration to Article 6 para. 1 for a layperson there does not appear to be a possibility of an appeal to the Federal Insurance Court.   In the light of the Adler case (Adler v.   Switzerland, Comm.   Report 15.3.85, D.R. 46 p. 36) the latter Court should on its own accord have granted an oral hearing.   3.       Under Article 14 taken together with Article 6 para. 1 of the Convention, the applicant alleges an unjustified discrimination on the ground of her sex in that the Federal Insurance Court assumed on the basis of "general life experience" that women with small children give up salaried work.   The applicant submits that, if she had been male, the Federal Insurance Court would not have assumed that she would no longer work after the birth of a child.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 29 December 1988 and registered on 9 January 1989.           On 2 April 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application with regard to the issues under Article 6 para. 1 of the Convention concerning access to the case-file.           The Government's observations were received by letter dated 26 June 1989 and the applicant's observations were dated 10 September 1990.           On 7 December 1990 the Commission decided to invite the parties to a hearing on the admissibility and merits of the applicant's complaints under Article 6 para. 1 of the Convention.           The hearing took place on 30 May 1991.   The respondent Government were represented by their Agent, Mr.   O. Jacot-Guillarmod, by Messrs.   R. Spira and A. Lustenberger, judges at the Federal Insurance Court, and by Mr.   F. Schürmann of the European Law and International Affairs Section of the Federal Office of Justice.   The applicant was represented by her lawyer, Mr.   L.A. Minelli.     THE LAW   1.       The applicant complains that in the proceedings before the Swiss authorities she had insufficient access to the case-file.   The applicant further complains that one particular document, the pulmological expert opinion of Dr.   F., was never shown to her and that she could not comment thereupon.   The applicant also complains that she did not have an oral hearing in these proceedings, and that the decision of the Federal Insurance Court disclosed its partiality.   The applicant relies on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as it is relevant:   "In the determination of his civil rights and obligations   ... , everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."           As to the applicability of this provision to the proceedings at issue, the applicant considers that the circumstances of the present case (see also above Relevant domestic law and practice) do not differ substantially from those of the Deumeland and Feldbrugge cases (Eur.   Court H.R., judgments of 29 May 1986, Series A nos. 99 and 100, respectively).   Thus, while the insurance is regulated by public law and compulsory, the applicant also refers to the personalised nature of the asserted right, the connection with the contract of employment, and the possibility of voluntary insurance.   The applicant submits that the insurance benefits were essential as a basis of existence for the applicant.           As regards the question of the access to the case-file the applicant points out that social security matters often involve complex facts.   The applicant should have been able to present the documents to specialists.   It would therefore have been essential for her to work with the case-file, or at least photocopies thereof, in the same manner as the opposing party which had the case-file in its office.   The applicant also submits that access to Dr.   F.'s report would have enabled her to submit it to her own medical expert for examination.   In fact, there were never public proceedings before the Federal Insurance Court in which it took evidence.   Yet it would have been important to gain a personal impression of the applicant.           The respondent Government submit that the present case involves a typical administrative procedure and does not concern the determination of the applicant's "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Reference is made to the general system of the invalidity insurance in Switzerland (see above Relevant domestic law and practice) and the case-law of the Court in the Feldbrugge and Deumeland cases (Eur. Court H.R., ibid.). In fact, given the double control available in such proceedings, it is unnecessary to apply Article 6 (Art. 6) of the Convention.           The Government emphasise that the invalidity insurance is compulsory and is not attached to the employment contract or to a person's fortune.   It depends on the degree of invalidity.   The insurance is governed by the principle of solidarity rather than of equivalence.   Thus, apart from a small part of the pension there is no mathematical correspondence between the amount of contribution made and the amount of pension received.   In the case of minors, the spouses of insured persons and of widows the pension will not depend on their contributions.   In the present case the insurance benefit was calculated on the basis of the applicant's inability to fulfil household duties rather than the inability to earn.   As a result, the insurance appertains exclusively to public law.   In fact, contrary to normal insurances which operate on the principle of capitalisation, the invalidity insurance is based on the principle of repartition, i.e. the contributions will finance the pension.           In respect of the issue of an oral hearing the Government point out that Section 85 para. 2 of the Federal Old Age and Survivors' Insurance Act envisages a hearing "if it is justified under the circumstances" (see above Relevant domestic law and practice). However, there are practically no hearings.   As a general rule, both the Appeal Board and the Federal Insurance Court will consider that the circumstances are not such as to warrant a hearing.   In fact, the applicability of Article 6 (Art. 6) of the Convention would considerably slow down the proceedings.           As regards the issue of access to the case-file, the Government consider that in any event the applicant can also not claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention. The Government recall that under the Swiss Federal Constitution (see above Relevant domestic law and practice) the parties must have access to all pertinent documents of the proceedings.   The Government   note that the applicant did not use the opportunity of consulting the case-file at the Court Registry.   Moreover, on 30 November 1987 the applicant in fact consulted the case-file at the Registry of the Uri Appeal Board and made photocopies thereof.   Subsequently, the applicant's lawyer received the entire case-file.   With reference to the Artico case (see Eur.   Court H.R., judgment of 13 May 1980, Series A no. 37, p. 16, para. 33) the Government contend that there was no breach of the principle of equality of arms if the applicant could effectively consult the case-file.           The Government further contend that access to a person's medical case-file is subjected to the limitations in the second sentence of Article 6 para. 1 (Art. 6-1) of the Convention.   Moreover, the expert opinion of the Medical Observation Centre, which the applicant could consult, constituted a virtually verbatim synthesis of the essential parts of other reports and was accessible to the applicant.   Only in exceptional cases are the individual elements leading to the synthesis attached thereto.   In fact, both the Appeal Board and the Federal Insurance Court only relied on the expert opinion of the Medical Observation Centre.   These authorities did not have Dr.   F.'s report at their disposal.   The actual assessment of the applicant's medical situation by the national authorities falls outside the scope of control of the Convention organs.           The Commission, having regard to the parties' submissions under Article 6 para. 1 (Art. 6-1) of the Convention, considers that these complaints raise complex issues of fact and law which can only be resolved by an examination of the merits.   This part of the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.   2.       The applicant further complains under Article 14 (Art. 14) taken together with Article 6 para. 1 (Art. 6-1) of the Convention of an alleged discrimination on the ground of sex.   She refers in particular to the Federal Insurance Court's statement that on the basis of "general life experience" women with small children will give up salaried work. The applicant submits that such an assumption by the Federal Insurance Court was not necessary in view of the conclusions of many scientific studies.   The Federal Court failed to take evidence on this issue.   a)       The Government submit that in this respect the applicant has not complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention in that she never raised this point before the Swiss authorities.           Under Article 26 (Art. 26) of the Convention the Commission may only deal with the matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case, the Commission notes, on the one hand, that the applicant is complaining of the formulation employed by the Federal Insurance Court in its decision of 21 June 1988.   Against this decision no further appeal was possible.   On the other hand, to the extent that the Appeal Board of the Canton of Uri had previously expressed a similar assumption in its decision of 8 May 1987, the Commission considers that the applicant complained thereof in her administrative law appeal statement of 11 January 1988, claiming in particular that the opinion of the Appeal Board was arbitrary.           The applicant's complaints cannot therefore be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.   b)       The Government contend that the assessment of evidence falls in principle to the national authorities who in the present case did not discriminate against the applicant on the ground of her sex. Rather, the criteria established by law to assess the inability to work do not apply to a housewife for which reason other criteria become relevant.           The Commission, having regard to the parties' submissions under Article 14 (Art. 14) of the Convention taken together with Article 6 para. 1 (Art. 6-1), considers that these complaints raise complex issues of fact and law which can only be resolved by an examination of the merits. This part of the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission, by a majority,             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Deputy Secretary to the Commission                President of the Commission                  (J. RAYMOND)                                 (C.A. NØRGAARD)