TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Et la clause de souveraineté est appliquée au cas par cas, en fonction, selon le bon vouloir des autorités, sans que cela soit prévisible pour notamment les organisations de défense des personnes.
AP1 (Applicant): de passer la parole à Mme Ecoffey.
Dean Spielmann (JudgeP): Merci, Madame Povlakić.
Dean Spielmann (JudgeP): Je donne la parole à Madame Ecoffey, s'il vous plaît.
AP2 (Applicant): Alors, très brièvement, je souhaiterais compléter 2...
AP2 (Applicant): donner 2 informations par rapport à ce qui a été dit par rapport au progrès qu'il y a eu lieu dans les conditions d'accueil en Italie.
AP2 (Applicant): Premièrement, dire que ces progrès sont largement insuffisants par rapport au nombre de demandeurs d'asile qui sont arrivés sur les côtes italiennes ces dernières années.
AP2 (Applicant): On parle de milliers de places d'hébergement contre des dizaines... plusieurs dizaines de milliers
AP2 (Applicant): de personnes arrivées en Italie.
AP2 (Applicant): Il y a donc disproportions manifestes entre les efforts qui sont faits et le nombre de personnes qui a besoin d'hébergement.
AP2 (Applicant): Et puis, la 2e chose, c'est que toutes les structures temporaires dont on nous a fait part ne sont pas mises à disposition des personnes renvoyées du Blin.
AP2 (Applicant): Donc, pour la famille Tarakel, en cas de renvoi, elle n'aurait pas accès à ces places qui sont réservées aux personnes qui arrivent en Italie.
Dean Spielmann (JudgeP): Alors nous en arrivons au terme de l'audience.
Dean Spielmann (JudgeP): La décision ou l'arrêt sera rendu ultérieurement.
Robert Spano (JudgeP): Je déclare ouverte l'audience sur la recevabilité et le fonds de l'affaire B contre Suisse.
Robert Spano (JudgeP): Je salue tous les participants à cette audience devant la Cour européenne des droits de l'homme, laquelle se tient en présence des partis, mais en l'absence de public en raison de la crise sanitaire.
Robert Spano (JudgeP): Je tiens, ni à moi, à signaler que cette audience sera enregistrée dans son intégralité et diffusée sur la toile afin d'assurer son caractère public.
Robert Spano (JudgeP): Le webcast sera disponible sur le site Internet de la Cour aujourd'hui à partir de 14h30.
Robert Spano (JudgeP): L'affaire a été introduite devant la Cour le 18 novembre 2012 par un ressortissant suisse, M. B,
Robert Spano (JudgeP): en vertu de l'article 34 de la Convention.
Robert Spano (JudgeP): Elle a été attribuée à la troisième section de la Cour, conformément à l'article 52, paragraphe 1, du règlement de la Cour.
Robert Spano (JudgeP): Dans son arrêt rendu le 20 octobre 2020, la Chambre de la troisième section a constaté à l'unanimité la violation de l'article 14 combinée avec l'article 8 de la Convention.
Robert Spano (JudgeP): Le 19 janvier 2021, le gouvernement a demandé le renvoi de l'affaire devant la Grande Chambre, conformément à l'article 43 de la Convention, et cette demande a été acceptée par le Collège de la Grande Chambre le 8 mars 2021.
Robert Spano (JudgeP): Le gouvernement est représenté par son agent, M. Alain Chablais,
Robert Spano (JudgeP): chef de l'Unité Protection internationale des droits de l'homme au sein de l'Office fédéral de la justice, assisté de Mme Claudina Mascetta, Valérie Ruffieu, Dominique Steiger Leuba, Sophie Heegaard-Schroeter et de M. Robert Baumann, conseil.
Robert Spano (JudgeP): Le requérant est représenté par M. Jürg Oskar Luginbühl, avocat,
Robert Spano (JudgeP): assisté de M. Fanny de Weck, conseil.
Robert Spano (JudgeP): Le requérant est aussi présent.
Robert Spano (JudgeP): Je salue les comparés au nom de la Cour.
Robert Spano (JudgeP): A y consulter l'agent de gouvernement et le représentant du requérant, j'ai fixé ainsi l'ordre des paroles.
Robert Spano (JudgeP): Nous attendrons successivement M. Luginbühl et M. de Weck
Robert Spano (JudgeP): pour le requérant, puis M. Chablais pour le gouvernement.
Robert Spano (JudgeP): La parole est à vous, M. Luginbühl, s'il vous plaît.
AP2 (Applicant): President, Honorable Judges, it's of course a great honor to speak to you in the case B versus Switzerland.
AP2 (Applicant): Attorney Fanny De Weck and I are representing the applicant Mr. B, I call him Mr. B in this
AP2 (Applicant): speech today.
AP2 (Applicant): I will begin with the facts and the important points of the Chamber's judgment.
AP2 (Applicant): Attorney De Weck will then comment on the government's submissions of the 30th of April 2021.
AP2 (Applicant): To the facts and to the previous judgments, eight months ago in its Chamber judgment of the 20th October 2020, this court anonymously held that there had been a violation of Article 14 taken together with Article 8 of the European Convention on Human Rights since the applicant had been discriminated based on his gender.
AP2 (Applicant): This is a very clear decision, far clearer than in the comparable case of Titricio decided in February 2016, where the Chamber ruled against Switzerland by four votes to three.
AP2 (Applicant): However, the Swiss government's request for referral to the Grand Chamber in the case Titricio then was rejected at that time.
AP2 (Applicant): The facts of this case are clear cut.
AP2 (Applicant): The applicant's wife died in an accident while hiking in the mountains in Appenzell, part of Switzerland, in 1994.
AP2 (Applicant): The applicant was then 41 years old, an insurance salesman and a former textile technician.
AP2 (Applicant): He had to give up his job in order to raise his two young daughters, who were then one year and four years old.
AP2 (Applicant): The applicant, Mr. B., who is present with his daughter today, initially received a widower's
AP2 (Applicant): pension which enabled him to care for the two daughters.
AP2 (Applicant): In December 2010, when his younger daughter turned 18, his pension was discontinued.
AP2 (Applicant): Mr. B. was 57 years old at the time.
AP2 (Applicant): If he had been a woman, he would have continued to receive the widower's pension until he would have reached pension age.
AP2 (Applicant): It's as simple as that.
AP2 (Applicant): At the age of 57, Mr. B. was no longer able to gain a foothold in the labor market.
AP2 (Applicant): On the one hand, because of his age and the digitalization of his two professions, on the other hand, because of his absence from the labor market while caring for his young children for 16 years.
AP2 (Applicant): There is no coming back after such a long time.
AP2 (Applicant): In addition, Mr. B. still had to care for both daughters.
AP2 (Applicant): We all know that parental care and support does not cease just because children turn 18 years old, particularly if they are semi-orphans and are still completing their first education, as was the case for the applicant's daughters.
AP2 (Applicant): In fact, the gender discriminatory denial of a widower's pension meant that Mr. B. and
AP2 (Applicant): his daughters had to live in poverty, let's say as it was, in poverty, and claim social assistance for years.
AP2 (Applicant): Mr. B. was also prevented from caring and helping his daughters as he is actually obliged
AP2 (Applicant): to under Swiss civil law up until the end of the daughter's first education.
AP2 (Applicant): In addition, the family was prevented from family activities like holidays and other important family events.
AP2 (Applicant): Mr. B. hence faced the exact same problems a widow would have faced after having cared
AP2 (Applicant): for her children for years, but contrary to a woman, he was not protected from these problems at all.
AP2 (Applicant): In fact, he was punished for not having organized his and his family's life according to the presumption, to the wrong presumption of the Swiss legislation on survivor's insurance, which is that men take care of their family financially.
AP2 (Applicant): That's what they say since decades, while women take care of the house and the children.
AP2 (Applicant): The present case strikes though at the very core of family life, which is protected by Article 8 of the Convention, and the discrimination of the applicant based on his gender is obvious.
AP2 (Applicant): Against this background, the Swiss Federal Supreme Court made it clear in its judgment of the 4th May 2012 that the relevant Articles 23 and 24 of the Federal Law on Old Age and Survivor's Insurance concerning the widow's pension violated the principle of gender equality laid down in the Swiss Constitution.
AP2 (Applicant): The Swiss judges indicated that the law and with it the unequal treatment of Mr. B compared
AP2 (Applicant): to a widow is unconstitutional, is unconstitutional in Switzerland itself.
AP2 (Applicant): Nonetheless, the Swiss court did not correct this legislative error because it has no jurisdiction on federal legislation.
AP2 (Applicant): According to Article 190 of the Swiss Constitution, even if a violation of the Swiss Constitution by a federal law is established, the highest Swiss court has not the power to remedy that violation.
AP2 (Applicant): However, according to the Federal Court's constant case law, the European Convention on Human Rights is directly applicable law in Switzerland.
AP2 (Applicant): Against this background, the Swiss Supreme Court should have assessed the violation of Article 14 in conjunction with Article 8 of the Convention as alleged by the applicant in the domestic proceedings.
AP2 (Applicant): It failed to do so without clearly reasoning why.
AP2 (Applicant): We don't know that.
AP2 (Applicant): This was, in our eyes, wrong.
AP2 (Applicant): The Federal Court should have assessed this case from the perspective of Article 8 of the Convention and should have stated that the European Convention has been violated, the Federal Court itself.
AP2 (Applicant): The Chamber of this Court, in its judgment of last year, left no doubt that the applicant's complaint falls within the scope of Article 8 of the Convention.
AP2 (Applicant): As it is stated in the Swiss Federal Court's judgment, the inequality in the Swiss survivor's pension is based on the wrong presumption that men are the breadwinners and women are taken care of by them, in particular when they have children.
AP2 (Applicant): The Chamber hence considered that the benefit in question clearly had a family character since it had a real and concrete impact on the organization of the applicant's family life.
AP2 (Applicant): In view of the parental duties he had fulfilled for 16 years, Mr. B., he was no longer able
AP2 (Applicant): to find employment in his previous profession.
AP2 (Applicant): The present case therefore fell within the ambit of Article 8 of the Convention.
AP2 (Applicant): I will now hand over to my colleague, Fanny de Weck.
Robert Spano (JudgeP): Mrs. Weck, you have the floor please.
AP1 (Applicant): President, Honorable Judges, the Swiss government raises three arguments why Article 8 of the Convention would not apply in this case.
AP1 (Applicant): First, it argues that the case of the applicant should be dealt with under the additional protocol to the Convention, which Switzerland has not ratified.
AP1 (Applicant): Second, it asserts that there needs to be a close link to family life for Article 8 to apply in conjunction with Article 14.
AP1 (Applicant): Third, it claims that the gender discrimination in this case is justified.
AP1 (Applicant): On the first argument, the additional protocol to the Convention is an additional protocol.
AP1 (Applicant): It is neither limiting nor restricting the Convention rights as the government suggests.
AP1 (Applicant): Also, and the Court is crystal clear on this, Article 1 of Protocol No. 1 is not alex specialis
AP1 (Applicant): to Article 8 of the Convention.
AP1 (Applicant): But in one case has the Court stated that if Article 1 of Protocol No. 1 applies, this
AP1 (Applicant): excludes the relevance of Article 8 taken together with Article 14.
AP1 (Applicant): On the contrary, the Court has made very clear in the Grand Chamber judgment, Serif Eygit versus Turkey, for example, that also in the context of survivor's pension and discrimination, not only Article 1 of Protocol No. 1 is applicable, but also Article 8 of the Convention.
AP1 (Applicant): The government's referral to that judgment in its submission in order to argue that Article 8 is not relevant in our case is therefore simply wrong and misleading.
AP1 (Applicant): The same is true for the reference to all cases concerning the unavailability of social security benefits for widows in the United Kingdom.
AP1 (Applicant): In fact, the Court declared the case Sorden versus the United Kingdom on that matter admissible under Article 1, Protocol No. 1 and Article 8 of the Convention.
AP1 (Applicant): Also, in cases like Willis versus the United Kingdom, the Court simply did not consider it necessary to assess the complaint under Article 8 after it had found a violation of Protocol No. 1.
AP1 (Applicant): But never has the Court stated that Article 8 is not applicable in such cases.
AP1 (Applicant): In fact, the Court has just recently confirmed that both provisions apply with regard to alleged discriminatory treatment in the granting of survivor's pension in the case Aldeguer Thomas versus Spain decided in June 2016.
AP1 (Applicant): This case concerned the inability of a surviving partner of a same-sex relationship to receive a survivor's pension and was dealt with by this Court under Article 14 in conjunction with Article 1, Protocol 1 and Article 8.
AP1 (Applicant): The Court further explicitly dealt with the Swiss government's argument in Riese versus Switzerland decided on the 12th of January of this year.
AP1 (Applicant): The case concerned the discriminatory treatment of an applicant who had to pay military service exemption tax in Switzerland even though he was unfit for service.
AP1 (Applicant): By referring to its constant case law also in non-Swiss cases, the Court recalled that it had never considered Article 1 or Protocol No. 1 to be leg specialis in relation to Article
AP1 (Applicant): 8.
AP1 (Applicant): On the contrary, as it summarized, its case law indicated that it never intended to exclude from the scope of Article 8 cases in which the consequences of the measure in question would be primarily pecuniary.
AP1 (Applicant): Like Di Trizio, this very recent judgment has not been taken to the Grand Chamber either.
AP1 (Applicant): It entered into force this April.
AP1 (Applicant): And of course, the Court's case law does not mean that Article 1 of Additional Protocol has no independent meaning as the government suggests.
AP1 (Applicant): The Court's rich and vast case law shows that there are plenty of cases regarding property rights and the field of social security and taxes that have nothing to do with Article 8 and for which Switzerland cannot be held accountable for.
AP1 (Applicant): Please, to convince yourself, take a quick look at the Court's guide on Article 1 of Protocol No. 1 published in April 2021.
AP1 (Applicant): The government suggests that once a matter may be relevant under an Additional Protocol, this cannot be dealt with under Convention Rights.
AP1 (Applicant): This argument is not only wrong, as has been shown, but also dangerous.
AP1 (Applicant): In fact, the case of the death penalty cited by the government is a good example for this.
AP1 (Applicant): Today, according to the Court's case law, the death penalty is generally prohibited under the right to life and the prohibition of torture and inhuman treatment in Articles 2 and 3 of the Convention, even though there are Additional Protocols No. 6 and 13 to
AP1 (Applicant): the Convention abolishing the death penalty under all circumstances.
AP1 (Applicant): See for example Al-Sadun and Mufti v. UK or 8.L v. Russia.
AP1 (Applicant): And here also, these Additional Protocols are not signed and ratified by all Member States of the Council of Europe.
AP1 (Applicant): Also, we would highlight the reason why Switzerland originally did not ratify Protocol No. 1 when
AP1 (Applicant): it ratified the European Convention in 1974.
AP1 (Applicant): It was not Article 1 of Protocol No. 1, it was because of Article 3 of that Protocol
AP1 (Applicant): that guarantees the right to free elections.
AP1 (Applicant): Switzerland was afraid this provision could be a problem since up until 1990, women in Switzerland were still not allowed to vote in all cantons.
AP1 (Applicant): It was only at a much later stage that Switzerland did not want to ratify Protocol No. 1 for
AP1 (Applicant): the reasons the government is naming today.
AP1 (Applicant): However it is rather ironic that today, because of an old gender discrimination in Switzerland, another gender discrimination still prevails.
AP1 (Applicant): Let us be clear, with its first argument, the government aims to employ the Additional Protocol to limit the rights of the Convention, namely those in Article 8.
AP1 (Applicant): In fact, both provisions, Article 8 and Article 1 of the Additional Protocol have their established positions in the landscape of the Court's case law.
AP1 (Applicant): It cannot be the purpose of the present case to abolish this carefully crafted landscape in such a way that Protocol rights take away Convention rights.
AP1 (Applicant): I would like to turn to the second argument.
AP1 (Applicant): The Swiss government requests a close link, un lien étroit, between the granting of a pension on the one hand and the enjoyment of family life on the other hand for Article 8 to apply in conjunction with Article 14.
AP1 (Applicant): First and this must be stated clearly, there is no basis in the Court's case law for this requirement.
AP1 (Applicant): It is the Court's constant case law that the application of Article 14 does not presuppose the violation of one of the Convention rights, but that it is sufficient for the facts of the case to fall within the ambit of one of the Articles or, as the Court also states, the general scope of any Convention Article.
AP1 (Applicant): It is further constant case law that as regards the family life aspect of Article 8, this notion does not only include social, moral or cultural relations, but also comprises interests of a material kind.
AP1 (Applicant): And this is not old case law or only Swiss case law, as the government suggests in its last submission.
AP1 (Applicant): It is constant case law and has been repeated by the Grand Chamber way after the case Merger et Grasse versus France in many judgments, for instance the Grand Chamber judgment Serife Yigit versus Turkey mentioned before.
AP1 (Applicant): In addition, the Court has made clear in several judgments that the aspect of private life in Article 8 is broad and does generally encompass stable couples with or without children, as well as aspects of the physical and social identity and autonomy of an individual concerned.
AP1 (Applicant): In the case Aldeguerre-Tomas versus Spain, for example, that has been mentioned before, the Court held in 2016 that the applicant's relationship with his late partner fell within the notion of family life and private life.
AP1 (Applicant): Since the Spanish legislator expressively provided for a right to a survivor's pension for unmarried heterosexual couples, which went beyond its obligation under Article 8, Spain could not, according to the Court in the application of that right, take a discriminatory measure within the meaning of Article 14.
AP1 (Applicant): Therefore as well, the case fell within the ambit of Article 8 in conjunction with Article 14.
AP1 (Applicant): The Court did not find a violation on the merits in this case.
AP1 (Applicant): However, regarding the applicability of Article 8 in conjunction with Article 14, we do not see any difference to the present case today.
AP1 (Applicant): In fact, since the applicant in our case has been treated unequally with regard to his family duties based on his gender, he is also affected in his personal identity and autonomy so that Article 8 of the Convention is also engaged to the aspect of private life.
AP1 (Applicant): In any event, and this is important, even if we were to assume that a closed link to Article 8 was required for Article 14 to apply, in this case this closed link, or lien étroit, as the government suggests, is given.
AP1 (Applicant): What does a closed link mean?
AP1 (Applicant): According to Judge Helen Keller in her dissenting opinion in Di Trizio, this link should result from the aim of the allowance in question insofar as it is designed to facilitate family life or to contribute to it.
AP1 (Applicant): As we know, the Swiss Federal Court stated that the applicant's discrimination is based on Articles 23 and 24 of the Federal Law on Survivors' Insurance.
AP1 (Applicant): The aim of these provisions, you can see it from the provisions themselves and all Swiss legal reports cited in the Chamber judgment, is clear.
AP1 (Applicant): It is to protect married couples in case one partner dies, and particularly when they have children.
AP1 (Applicant): And as the Swiss Federal Court has stated itself, it is based on the understanding that the husband is generally responsible for the maintenance of the wife.
AP1 (Applicant): He is therefore considered by law to be the breadwinner, while the wife is considered the one to be provided for by her husband, especially in case of children.
AP1 (Applicant): See Consideration 3.5 of the Federal Court's judgment of 4 May 2012, where this is stated.
AP1 (Applicant): As you can see from this, the pension's aim is to protect women who are caring for the household and children, and it does offer less protection for men like the applicant in this.
AP1 (Applicant): It is hence clearly designed to facilitate family life or contribute to it, as required by the Swiss Government and Judge Keller.
AP1 (Applicant): In fact, the link of the pension in question to the applicant's family life and his family organization could not be closer.
AP1 (Applicant): And the Government has not explained what other aim or reason of the law there could be then to protect families in the sense of Article 8.
AP1 (Applicant): Let us remember, the survivor's pension is not social welfare designed for particularly poor people, unemployed, refugees, persons with disabilities, or older people like an old-age pension.
AP1 (Applicant): No, it is aimed at protecting families who have lost a partner and a parent.
AP1 (Applicant): Without the existence of such a family, there is no survivor's pension, and in fact, for men without children, there is no such pension at all.
AP1 (Applicant): So the pension's precondition is the existence of a family.
AP1 (Applicant): Therefore, it is more than clear that a close link to family life, as requested by the Government, is given in this case.
AP1 (Applicant): And as the Chamber has also made clear, the applicant and his daughters have been affected by this legislation individually and concretely.
AP1 (Applicant): And this is important.
AP1 (Applicant): The law did not just have an impact on them from the moment when their youngest daughter turned 18 years old.
AP1 (Applicant): No, the law in fact penalised the applicant for having cared full-time for his children when they were minor, since, exactly like for a woman, it was impossible for him to find a job after 16 years of absence from the job market and at the age of 57.
AP1 (Applicant): So Mr B was in fact directly punished for doing what the Swiss legislature expects from women but does not expect from men, which is caring for the household and children.
AP1 (Applicant): Finally, we would like to highlight that, based on the Court's case law, also Judge Keller held that Article 8 applies in this case.
AP1 (Applicant): Therefore, contrary to Di Trizio, she voted with the majority and wrote a concurring, not a dissenting opinion.
AP1 (Applicant): Again, this illustrates that not to apply Article 8 in this case simply contradicts the Court's constant and well-thought case law.
AP1 (Applicant): I will now turn to the Government's argument on the merits of this case.
AP1 (Applicant): Regarding the question whether the unequal treatment of Mr B pursued a legitimate aim, we do recognise that it might be justified to privilege certain individuals in order to address the fact that they are disadvantaged in other respects.