CEDH · CASELAW;REPORTS;ENG — 7 avril 1992

.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 } .s76CF415B { page-break-before:always; clear:both }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 14518/89                          Margrit SCHULER-ZGRAGGEN                                   against                                 SWITZERLAND                          REPORT OF THE COMMISSION                          (adopted on 7 April 1992)                              TABLE OF CONTENTS                                                                  PAGE   I.     INTRODUCTION       (paras. 1 - 18) ........................................     1         A.    The application            (paras. 2 - 4) ..................................       1         B.    The proceedings.            (paras. 5 - 13) .................................       1         C.    The present Report            (paras. 14 - 18) ................................       2     II.    ESTABLISHMENT OF THE FACTS       (paras. 19 - 58) .....................................       3         A.    The particular circumstances of the case            (paras. 19 - 47) ................................       3         B.    Relevant domestic law and practice            (paras. 48 - 58) ................................       7     III.   OPINION OF THE COMMISSION       (paras.   59 - 131) ....................................      10         A.    Complaints declared admissible            (para. 59) ......................................       10         B.    Points at issue            (para. 60) ......................................       10         C.    Applicability of Article 6 para. 1            of the Convention            (paras. 61 - 86) ................................       10              a.     Opinion of MM. Frowein, Busuttil, Schermers,                  Mrs. Thune, Sir Basil Hall, MM. Martinez,                  Rozakis and Mrs. Liddy                  (paras. 81 - 82) ..........................       13              b.     Opinion of MM. Nørgaard, Trechsel, Ermacora,                  Jörundsson, Danelius, Almeida Ribeiro and                  Pellonpää                  (paras. 83 - 86) ..........................       13         D.    Compliance with Article 6 para. 1            of the Convention            (paras. 87 - 116) ...............................       14              a.     Lack of an oral hearing                  (paras. 88 - 102) ..........................      14                    aa)   Opinion of MM. Nørgaard, Trechsel,                       Ermacora, Jörundsson, Danelius, Almeida                       Ribeiro and Pellonpää                       (para. 92) ...........................       14 14518/89                        - ii -                      bb)   Opinion of Mr. Schermers, Mrs. Thune and                       Mr. Martinez                       (paras. 93 - 101) ....................       15                    Conclusion                  (para. 102).   .............................       16              b.     Access to case-file                  (paras. 103 - 116) ........................       16                    aa)   Opinion of MM. Nørgaard, Trechsel,                       Ermacora, Jörundsson, Danelius, Almeida                       Ribeiro and Pellonpää                       (para. 109)   .........................       17                    bb)   Opinion of MM. Frowein, Schermers,                       Mrs. Thune, Sir Basil Hall, MM. Martinez                       and Rozakis                       (paras. 110 - 115) ...................       17                    Conclusion                  (para. 116) ...............................       18           E.    Compliance with Article 14 taken together with            Article 6 para. 1 of the Convention            (paras. 117 - 128) ..............................       18              a.     Opinion of MM. Nørgaard, Ermacora, Jörundsson,                  Danelius, Almeida Ribeiro and Pellonpää                  (para. 123) ...............................       19              b.     Opinion of MM. Busuttil, Martinez, Rozakis                  (paras. 124 - 127) ........................       19              Conclusion            (para. 128) .....................................       19           F.    Recapitulation            (paras. 129 - 131) ..............................       20     JOINT DISSENTING OPINION OF MR. J.A. FROWEIN AND SIR BASIL HALL   ........................................       21   DISSENTING OPINION OF MR. S. TRECHSEL ......................       23   DISSENTING OPINION OF MRS. J. LIDDY   .......................       24   DISSENTING OPINION OF MR. E. BUSUTTIL   .....................       25   DISSENTING OPINION OF MR. C.L. ROZAKIS .....................       26   DISSENTING OPINION OF MRS. G.H. THUNE   .....................       27     APPENDIX I        :     HISTORY OF THE PROCEEDINGS   ..........       28     APPENDIX II       :     DECISION ON THE ADMISSIBILITY ........       29 I.   INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.     The application   2.     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.   3.     The application is directed against Switzerland whose Government were represented by their Agent, Mr. O. Jacot-Guillarmod, Deputy Director of the Federal Office of Justice, and their Deputy Agent, Mr. Ph. Boillat, Head of the European law and International Affairs Section of the Federal Office of Justice.   4.     The application concerns the applicant's complaint under Article 6 para. 1 of the Convention that in social security proceedings she had no oral hearing and only insufficient access to the case-file; and under Article 14 of the Convention taken together with Article 6 para. 1 of discrimination on account of her sex in the determination of her claim.   B.     The proceedings   5.     The application was introduced on 29 December 1988 and registered on 9 January 1989.   6.     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.   7.     The Government's observations were received by letter dated 26 June 1989 and the applicant's observations were dated 10 September 1990.   8.     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.   9.     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. Minelli.   10.    Following the hearing the Commission declared the application admissible. 11.    The text of this decision was on 17 July 1991 communicated to the parties who were invited to submit any additional observations or further evidence which they wished to put before the Commission.   12.    The Government submitted additional observations on 30 September 1991, arguing that domestic remedies were not fully exhausted, but the Commission found no basis for applying Article 29 of the Convention.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.     The present report   14.    The present report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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   15.    The text of this Report was adopted on 7 April 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.                     II. ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   a.     Institution of invalidity insurance proceedings   19.    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).   20.    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.   21.    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.   22.    On 28 September 1978 the D. company gave notice to the applicant on account of her illness, as from 1979 onwards.   23.    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.   24.    In 1981 and again in 1982 the Insurance reviewed the applicant's situation and, as a result, confirmed the pension.   25.    On 4 May 1984 the applicant gave birth to a son.   26.    Subsequently, the applicant's invalidity pension was reviewed. In 1985 the Invalidity Insurance Commission (IV-Kommission) of the Canton of Uri ordered the applicant's medical examination by the Medical Observation Centre (Medizinische Abklärungsstelle) of the Invalidity Insurance.   27.    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 psychiatric report, respectively. Dr. F. prepared his report on 10 December 1985, Dr. B. prepared his on 24 December 1985.   28.    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%.   29.    On 21 March 1986 the Invalidity Insurance Commission terminated, as from 1 May 1986, the applicant's pension which by then amounted to 2,016 SFr per month.   The Commission 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 Commission 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%.     b.     Proceedings before the Appeal Board   30.    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 Invalidenver- sicherung) 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 (Bundes- gesetz über die Invalidenversicherung) she was entitled to an invalidity pension as her invalidity amounted to at least 66 2/3%.   31.    By letter of 26 May 1986 the applicant, who was at that time not represented by a lawyer, complained to the Invalidity Commission of the Canton of 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.   32.    By letter of 28 July 1986 to the Invalidity 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.   33.    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.   34.    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.   35.    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 to a perfusion scintigram, a lung function test, blood gas analyses and a plethsmograph.   36.    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       Akteneinsichtsrechts bei unseren Akten.   Wir sind daher nicht in       der Lage, darüber hinaus Ihnen weitere Unterlagen zur       Einsichtnahme vorzulegen."     c.     Proceedings before the Federal Insurance Court   37.    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).   38.    On 20 October 1987 the Invalidity Insurance Secretariat of 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.   39.    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.   40.    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.   41.    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.   42.    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 working in her household.   43.    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.   44.    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.   45.    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 her 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.   46.    With regard to the pension claim the Court stated:   <Translation>              "It must be considered, however, that many wives pursue            activities away from home until the birth of their first            child, though they suspend such activity as long as the            children require complete care and education.   The present            case, too, must proceed from this assumption of general            life experience - which must be duly considered for the            question of the applicable method of the determination of            invalidity ... The child, born on 4 May 1984, was barely            two years old at the critical time when the order was            contested on 21 March 1986 ... Thus, according to the            degree of evidence of predominant probability ..., it must            be assumed that the applicant, even without an impairment            in her health, would be active solely as a housewife and            mother..."   <German>         "Indessen ist zu beachten, dass viele Ehefrauen bis zur Geburt       des ersten Kindes einer ausserhäuslichen Tätigkeit nachgehen,       diese aber mindestens solange einstellen, als die Kinder der       vollständigen Pflege und Erziehung bedürfen.   Von dieser auf der       allgemeinen Lebenserfahrung - welche bei der Frage nach der       anwendbaren Methode der Invaliditätsbemessung gebührend zu       berücksichtigen ist ... - beruhenden Annahme ist auch im       vorliegenden Fall auszugehen.   Das am 4. Mai 1984 geborene Kind       war im massgeblichen Zeitpunkt der angefochtenen Verfügung am       21. März 1986 ... erst knapp zwei Jahre alt, weshalb nach dem       Beweisgrad der überwiegenden Wahrscheinlichkeit ... davon       auszugehen ist, dass die Beschwerdeführerin auch ohne       gesundheitliche Beeinträchtigung nur als Hausfrau und Mutter       tätig wäre..."   47.    The Federal Insurance Court thus considered it 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.   The applicant had a neurosis which had meanwhile diminished.     B.      Relevant Domestic Law and Practice   a.      Swiss social security legislation   48.    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).   49.    The invalidity insurance is operated by cantonal and professional associations and its operation is supervised by the Confederation (Sections 49-73 of the Federal Old Age and Survivors' Insurance Act; Sections 53-67 of the Federal Invalidity Insurance Act).   50.    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.   There is no upper limit to the contributions of the insured person and the employer.   Children, spouses and widows without employment are dispensed from contributions; for other persons without employment, the annual contributions vary between currently 39 and 1,200 SFr (Section 3 of the Federal Invalidity Insurance Act; Section 3 of the Federal Old Age and Survivors' Insurance Act).   51.    According to the version of Section 28 para. 1 of the Federal Insurance Act applicable at the relevant time, a person is entitled (droit; Anspruch) to a full pension if his invalidity amounted to at least two thirds.   In the case of invalidity of at least 50%, the person is entitled to half a pension.   In hardship cases, half a pension may be granted if the invalidity amounts to one third.   At present, Section 28 para. 1 additionally envisages a quarter of a pension if the invalidity amounts to 40%.   Section 28 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 nicht invalid geworden wäre."   52.    According to Section 36 et seq. of the Federal Invalidity Act taken together with Section 29 et seq. 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 by the number of years in which contributions were paid.   The maximum amount afforded in the case of a normal full pension is limited to twice 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).     b.     Law and practice as to procedure   53.    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).   54.    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."   55.    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."   56.    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 112 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").   57.    According to Article 14 para. 2 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.   58.    In the proceedings before the Federal Insurance Court, the applicant can also complain of the inadequacy 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).                     III.   OPINION OF THE COMMISSION     A.     Complaints declared admissible   59.    The following complaints were declared admissible:   -      that in the proceedings before the Swiss authorities the applicant did not have an oral hearing;   -      that in these proceedings the applicant had insufficient access to the case-file and could not consult one particular medical report;   -      that the Federal Insurance Court unjustifiably discriminated against her on the ground of her sex when it assumed in its decision of 21 June 1988 that after the birth of her child she would give up work.     B.     Points at issue   60.    Accordingly, the issues to be determined are:   -      whether Article 6 para. 1 (Art. 6-1) of the Convention applied to the proceedings at issue;   and, if so,   -      whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the lack of an oral hearing;   -      whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of access to the case-file;   -      whether there has been a violation of Article 14 taken together with Article 6 para. 1 (Art. 14+6-1) of the Convention in respect of discrimination on account of the applicant's sex.     C.     Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   61.    The first issue to be decided is whether Article 6 para. 1 (Art. 6-1) of the Convention applied to the proceedings at issue.   62.    Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as 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."   63.     The applicant submits that the circumstances of the present case 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, 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.   64.    The respondent Government contend 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 application of this provision would slow down proceedings.   65.    The Government emphasise that the invalidity insurance is compulsory and is not attached to the employment contract or to a person's fortune.   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.   66.    The Commission has first examined whether there was a dispute concerning a right, as required for the applicability of Article 6 para. 1 (Art. 6-1) of the Convention (see Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 29 et seq., paras. 79 et seq.;   Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, series A no. 43, p. 220 et seq., paras. 44 et seq.).   It considers that in the present case the Swiss courts were dealing with a genuine and serious dispute between the applicant and the social security authorities concerning her entitlement to an invalidity pension.   Thus, the case involved a dispute over a right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   67.    The next question to be resolved is whether the right at issue, which concerns the area of social security, was a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   68.    The Commission recalls the Convention organs' case-law according to which "the concept of 'civil rights and obligations' cannot be interpreted solely by reference to the domestic law of the respondent State" (see Eur. Court H.R., König judgment of 28 June 1978, Series A no. 27, p. 29 et seq., paras. 88 et seq.).   Moreover, Article 6 (Art. 6) covers not only "private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter has been acting as a private person, subject to private law ...   Accordingly, ... only the character of the right at issue is relevant" (see Eur. Court H.R., König judgment, ibid.,     p. 30, para. 90).   69.     In the Convention organs' case-law a number of criteria have been developed for deciding whether a given dispute about the entitlement to social security benefits can be regarded as a dispute about civil rights or obligations as protected by Article 6 para. 1 (Art. 6-1) of the Convention, in particular whether a right was a public law right or a private law right. Thus, the criteria for a public law right are: the public law character of the relevant domestic law;   the compulsory nature of the insurance;   and State assumption of responsibility for social protection. The criteria for a private law right are:   the personal and economic nature of the right;   the connection with the contract of employment;   and affinities of the insurance scheme with insurance governed by ordinary law (see Eur. Court H.R., Feldbrugge judgment,   ibid., p. 12 et seq., paras. 28 et seq.; Deumeland judgment, ibid., p. 22 et seq., paras. 62 et seq.).   70.    The Commission recalls that in the Feldbrugge and Deumeland judgments the Court concluded on the basis of t