European Court of Human Rights (Grand Chamber): While deciding a matter concerning discriminatory treatment towards a widower taking care full-time of children, by terminating his survivor's pension when youngest child had reached adulthood, the Grand Chamber of the Court, with 12 votes to 5 votes, held that the applicant's rights under Arts. 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, have indeed been violated when Swiss authorities terminated the payment of his widower's pension. It was held that the Swiss Government did not show very strong reasons or “particularly weighty and convincing reasons” justifying the difference in treatment on grounds of sex complained of by the applicant and accordingly found that the unequal treatment to which the applicant was subjected to, cannot be said to have been reasonably and objectively justified.
Facts of the Case: The case originated in an application against the Swiss Confederation lodged under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’) by a Swiss national, Max Beeler. The applicant is a father of two children, who lost his wife in an accident in 1994 and decided to leave his job at the insurance company to devote himself full time to take care of his daughters. The applicant was granted a widower's pension at a monthly rate of approximately 920 Swiss francs (CHF), together with supplementary benefits. His daughters were granted orphans’ pensions amounting to CHF 459 per month, and later received education allowances up to the age of 25.
In 2010, having noted that the applicant's younger daughter was about to reach the age of majority, the Compensation Office (Ausgleichskasse) of the Canton of Appenzell, Outer Rhodes, terminated the payment of the applicant's widower's pension.
Legal Trajectory: The applicant lodged an objection, relying on the principle of gender equality enshrined in the Swiss Constitution. The objection was rejected on the ground that that the Swiss legal system did not provide for a review of constitutionality.
The applicant subsequently appealed to the Cantonal Court, arguing that there were no grounds for treating him less favourably than a widow with children above the age of 18, who remained eligible for a widow's pension. The Cantonal Court dismissed the appeal noting that the conditions for entitlement to a pension that were applicable to widows and widowers respectively under Sections 23 and 24 of the Federal Law on old-age and survivors’ insurance were different, a situation that on the face of it was incompatible with the requirements of the Swiss Constitution. The Cantonal Court pointed out that during the tenth revision of the old-age and survivors’ insurance (“OASI”) system in 1997 the legislature had been aware of the difference in treatment between widowers and widows but had taken the view that since there were still relatively few house- husbands, they could be expected to return to employment once their child-raising duties ended. The Cantonal Court held that only the legislature could change that situation, and that at all events the courts could not refuse to apply the clear letter of the law.
Alleging violation of his rights under the ECHR Convention, the applicant reached the Federal Supreme Court, but his application was dismissed. The Supreme Court stated that distinctions on grounds of sex could only be justified where the biological or functional differences between men and women rendered equal treatment quite simply impossible. It further noted that Switzerland had not ratified Protocol No. 1 to the Convention and was therefore not bound by that instrument. As regards the complaint under Art. 14 in conjunction with Art. 8 of the Convention, the Federal Supreme Court found that it could not be inferred from the case-law of the European Court that Art. 8 of the Convention required States to provide specific social security benefits.
The applicant submitted that that as a widower who had been bringing his children up alone since his wife's death, he had suffered discrimination as compared to widows looking after their children alone, given that he had lost his entitlement to a widower's pension when his younger daughter had reached the age of majority, while the corresponding pension remained payable to widows with children of the same age.
The Swiss government on the other hand, contended that the differential treatment towards the applicant was not based on gender stereotyping but on social reality. It was further argued that widow's pension, which had been introduced in 1948 was based on the assumption that, the husband provided for his wife's maintenance, particularly where she had children. Although the Swiss government had made several subsequent attempts to reform the widows’ and widowers’ pension system with a view to gradual harmonisation, but their plans had not come to fruition.
The Court's Assessment, Findings and Decision: The Majority comprising of Judges Robert Spano, Síofra O’Leary, Marko Bošnjak, Yonko Grozev, Pere Pastor Vilanova, Jovan Ilievski, Péter Paczolay, Arnfinn Bårdsen, Saadet Yüksel, Anja Seibert-Fohr, Ioannis Ktistakis, Andreas Zünd, and Søren Prebensen (Deputy Grand Chamber Registrar), perused the matter at hand.
• The Majority reiterated that Art. 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and the Protocols thereto.
• Relying on several of its precedents, the Court observed that differences based exclusively on sex require “very weighty reasons”, “particularly serious reasons” or, as it is sometimes said, “particularly weighty and convincing reasons” by way of justification and that the States cannot impose traditions deriving from the idea that the man plays a predominant role and the woman a secondary role in the family.
• It was further noted that while the Convention places no restrictions on the Contracting States’ freedom to decide whether or not to have in place any form of social security scheme, thus, if a State does decide to create benefits or pension schemes, then it must do so in a manner which is compatible with Art. 14 of the Convention.
• The Court referred to Konstantin Markin v. Russia, (GC, no. 30078/06, ECHR 2012), wherein it was stated that “Article 14 of the Convention is pertinent if “the subject matter of the disadvantage (…) constitutes one of the modalities of the exercise of a right guaranteed …”, or if the contested measures are “linked to the exercise of a right guaranteed ...”
• The Court noted that the applicant was in “an analogous situation in terms of his subsistence needs, the applicant was not treated in the same way as a woman/widow. He was therefore subjected to unequal treatment on account of the termination of his widower's pension”.
• Determining whether the differential treatment towards the applicant was reasonably justified, the Court observed that the present case concerns the field of social welfare, which constitutes a complex system in which a balance must be preserved, and that accordingly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. It was further noted that advancement of gender equality remains a major goal in the member States of the European Council. However, the Court reaffirmed that references to traditions, general assumptions or prevailing social attitudes are insufficient justification for a difference in treatment on grounds of sex, whether in favour of women or men. “It follows that the Government cannot rely on the presumption that the husband supports the wife financially (the “male breadwinner” concept) in order to justify a difference in treatment that puts widowers at a disadvantage in relation to widows”. The Court pointed out that the attempted reforms as highligted by the Swiss government, clearly show that the old “factual inequalities” between men and women have become less marked in Swiss society. Accordingly, the considerations and assumptions on which the rules governing survivors’ pensions had been based over the previous decades are no longer capable of justifying differences on grounds of sex.
• The Court pointed out that applicant was 57 years old when the pension was stopped and had not been in gainful employment for over sixteen years and there is no reason to believe that the applicant, at that age and following a lengthy absence from the labour market, would have had less difficulty in returning to employment than a woman in a similar situation, or that the termination of the pension would have had less impact on him than on a widow in comparable circumstances.
• Furthermore, the Court held that the applicant sustained non-pecuniary damage owing to the authorities’ refusal to grant him a widower's pension. Thus, making an assessment on an equitable basis as required by Art. 41 of the Convention, the Court found it appropriate to award the applicant the sum of EUR 5,000. The Court also awarded the applicant a total sum of EUR 16,500 in respect of costs and expenses.
• In a joint dissent Jon Fridrik Kjølbro, Gabriele Kucsko-Stadlmayer, Pauliine Koskelo, Stéphanie Mourou-Vikström and Peeter Roosma, JJ., observed that the majority making a significant expansion vis-a-vis the applicability of Art. 8 when invoked together with Art. 14 in the field of social welfare benefits, is concerning and dubious in principle. It was observed that the expansive approach means that the ensuing legal implications and novel uncertainties will from now on affect the entire Convention system throughout all the jurisdictions within its geographical sphere.
• The dissenting Judges further observed that the judgment defines the ambit of the right to respect for family life in a problematic way. The “subject matter of the disadvantage” suffered by the applicant was not an inability to receive a survivor's pension when his children were still minors, but the inability to receive a survivor's pension once his children had reached adulthood. The applicant had been the beneficiary of a survivor's pension. His entitlement to that pension was conditional on his position as the surviving parent of minor children. Neither the receipt of the pension nor its amount was tied to the applicant becoming a full-time career of those children. He would have received the survivor's pension regardless of the manner in which the care of the children was organised.
• The Judges further pointed out that the applicant knew from the very beginning that the duration of the pension was limited in time and would not continue beyond the point at which both his children had reached the age of majority.
• The majority has held that there is no “family life” within the meaning of Art. 8 between parents and adult children unless, additional elements of dependence exist. “Although the present case concerns a difference in treatment based on sex, which is one of the protected grounds expressly enumerated in Art. 14, it is worth noting the broader repercussions that may follow from the manner in which the reach of that provision is construed”.
• It was pointed out that the judgment addresses the question of the “ambit” of Art. 8 in conjunction with Art. 14; whereas the question of whether and how measures in the field of social welfare benefits might engage the application of Art. 8 taken alone i.e., the “scope”, remains outside the subject matter of this case.
• It was noted that the majority placed their focus on the constraints under which the applicant took his decisions to leave his job and to remain without employment throughout the period until his children became adults, and the ensuing difficulties he faced. Implicitly, such an approach suggests that the individual is entitled to rely on the collective of contributors to the welfare system. “While that may be a respectable ideological position to take, we would not agree that an international judicial body such as the Court may legitimately impose such an ideological approach on the domestic, democratically based institutions whose task it is to set up, maintain and finance the systems of social protection”.
• The dissenting Judges cautioned that matters of social welfare policies are at the heart of political and democratic processes at the domestic level; thus, it is obvious that the basic battlefields and corrective mechanisms in such matters must remain at the domestic levels of political democracy. “Such functions cannot be shifted to the courts. In particular, an international human rights court cannot legitimately place itself at the forefront of disputes relating to social welfare entitlements or turn itself into a final arbiter in the complex matters of income distribution and social rights”.
[Beeler v. Switzerland, Application no. 78630/12, decided on 11-10-2022]
*Sucheta Sarkar, Editorial Assistant has prepared this brief.