THIRD SECTION
CASE OF BELLI AND ARQUIER-MARTINEZ v. SWITZERLAND
(Application no. 65550/13)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
11 December 2018
 
 
FINAL
 
11/03/2019
 
 
This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Belli and Arquier-Martinez v. Switzerland,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Vincent A. De Gaetano, President,
 Branko Lubarda,
 Helen Keller,
 Dmitry Dedov,
 Pere Pastor Vilanova,
 Georgios A. Serghides,
 Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 13 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 65550/13) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Swiss nationals, Ms Annick Marcelle Belli and Ms Christiane Arquier-Martinez (“the applicants”), on 14 October 2013. 2. The applicants were represented by Mr H.-P. Sambuc, a lawyer practising in Vessy. The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann. 3. The applicants alleged, in particular, that the requirement of a private address in Switzerland in order to qualify for social insurance benefits was discriminatory. 4. On 22 November 2013 the Government were given notice of the application. 5. On 31 January 2017 the former Section President decided, pursuant to Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit observations in writing on the admissibility and the merits of the application. 6. Further observations were received from the applicants on 6 March 2017 and from the Government on 10 March 2017. THE FACTS
THE CIRCUMSTANCES OF THE CASE
7. The applicants were born in 1962 and 1939 respectively and live in Armaçao dos Buzios (Brazil). The second applicant is the first applicant’s mother and guardian. 8. The first applicant has been deaf since birth, speaks her mother tongue with great difficulty and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life. She was granted an extraordinary invalidity insurance pension (“enhanced pension for congenitally disabled persons”) as from 1 September 1980, and a disability allowance as of 1 September 1997. From January 2009 to March 2010 (15 months) the Cantonal Social Insurance Office of the Canton of Geneva granted the first applicant allowances to a total of CHF 39,900 (approximately 35,400 euros at current rates). 9. The legal provisions applicable in this sphere state that beneficiaries of the extraordinary pension and the disability allowance, which are non-contributory benefits, must have a private address and their habitual residence in Switzerland (see paragraphs 21 and 25 below). 10. During review proceedings brought in July 2009, the Geneva Canton Disability Insurance Office obtained information, in particular, from the second applicant and from Michel Belli, the first applicant’s divorced parents. 11. In fact, the second applicant had decided to settle in Brazil with her new husband, a French national – with whom the applicants submit they have been living since 1982 – in order to purchase and run a hotel. The first applicant, who had been placed under the second applicant’s parental authority in summer 2009, had been living with her in Brazil for several years, visiting her father in Switzerland for about three weeks every three months. 12. By decision of 3 December 2010, the Disability Insurance Office for Insured Persons Resident Abroad (OAIE) rescinded the first applicant’s entitlement to the extraordinary invalidity pension and the disability allowance with effect from 1 April 2010. 13. On 5 October 2012 the Federal Administrative Court dismissed the applicants’ appeal against that decision. In short, the court held that the first applicant was no longer entitled to the benefits in question because she did not have a private address or her habitual residence in Switzerland. 14. Exercising their right to lodge a public-law appeal, the applicants invited the Federal Court to set aside the judgment of the Federal Administrative Court and the decision of 3 December 2010, and to order the OAIE to pay “uninterruptedly” to the first applicant, in respect of costs and expenses, the extraordinary invalidity pension and the disability allowance with 5% annual interest. The applicants submitted that the withdrawal of the benefits on the grounds that they were non-exportable amounted to a disproportionate and therefore unjustified interference with their private and family life, as well as their private home as protected by Article 8 of the Convention. If the withdrawal were upheld, the first applicant would be forced to return to Switzerland in order to receive the benefits which were necessary for her quality of life, which meant that either she would have to live separately from her mother or the latter would be obliged, in order to avert such separation, to return to Switzerland to live with her daughter, which would entail separation from her current husband. The right to respect for the home would also be affected, since the insured person would be forced to move to Switzerland. The applicants took the view that the said infringement was also discriminatory within the meaning of Article 14 of the Convention, read in conjunction with Article 8, because the benefits had been withdrawn for reasons linked to the nature of the insured person’s disability: she had been born with a health impairment and had therefore not been able to contribute to the disability insurance scheme before the disability had occurred. 15. By judgment of 15 April 2013, notified on 26 April 2013, the Federal Court dismissed the appeal lodged by the two applicants. In short, the Federal Court found that the withdrawal of the right to an extraordinary invalidity pension and a disability allowance on account of the lack of a private address and residence in Switzerland did not fall within the ambit of Article 8 of the Convention. In that connection, the court emphasised that the benefits in question had not pursued the aim of protecting family life or intervening in personal or family relations. “4.1 ... Art. 8 para. 1 ECHR also protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference (see ECtHR judgment Moreno v. Spain, 16 November 2004, ECHR Reports 2004-X p. 307 § 53).
4.2 According to the constant case-law of the ECtHR, Art. 8 ECHR does not give rise to direct entitlement to social insurance benefits. The Court has indeed acknowledged that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may, in certain circumstances, be positive obligations inherent in effective respect for private or family life (see, among other authorities, Botta, § 33). However, it has held that Art. 8 ECHR does not impose on the Contracting States any obligation to provide specific financial assistance or to guarantee a specific standard of living (see Petrovic v. Austria, 27 March 1998, Reports 1998-II p. 579 § 26 et seq., and the inadmissibility decision in Pancenko v. Latvia, 28 October 1999). That provision places no restriction on the Contracting States’ freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme (see Stec and Others v. the United Kingdom, 12 April 2006, ECHR Reports 2006-VI p. 159, § 53). The ECtHR has thus considered that a refusal to grant a parental leave allowance cannot amount to a failure to respect family life, since Article 8 of the Convention does not impose any positive obligation on States to provide the financial assistance in question (see Petrovic, § 26). Consequently, given that Art. 8 ECHR does not give rise to entitlement to a specific standard of living or to a positive obligation to provide a social insurance benefit, the withdrawal of the benefits in question owing to the insured person’s departure from Switzerland does not amount to an interference with private or family life. Nor does this measure impinge on the necessary respect for the home within the meaning of Art. 8 (1) ECHR and the European Court’s case-law, which the appellants have interpreted broadly, as it does not involve any practical infringement of the area in which their private and family life develops. Furthermore, it is plain that the appellants were not impeded by the Swiss authorities in their choice of way of life and the development of their family relations in Switzerland or abroad; in particular, they were not prevented from maintaining family and social relations in this country, from settling in it or leaving it as they wished. It should be pointed out here that in all cases where the European Court has considered a denial of specific social insurance benefits in the light of the rights secured under the ECHR, it has relied on Protocol No. 1 of 20 March 1952 to the ECHR, as, for example, in Moskal v. Poland, 15 September 2009, §§ 93 et seq., cited by the appellants (see also Stec and Others, § 53, and Koua Poirrez v France, 30 September 2003, ECHR Reports 2003-X p. 45 §§ 43 et seq.). Since Switzerland has not ratified that protocol, it is not bound by the Court’s case-law concerning the non-discriminatory granting of social security benefits based on Article1 of the protocol.
4.3 Contrary to the appellants’ subsequent submissions, the withdrawal of the social insurance benefits in question does not, from a thematic perspective, fall within the scope of Art. 8 ECHR, which would enable them to pray in aid Art. 14 ECHR. That provision, which complements the other substantive provisions of the ECHR, can apply in the absence of an infringement of those provisions, provided that the facts of the case fall within the ambit of one or more of them (see, among many other authorities, Konstantin Markin v Russia, 22 March 2012, § 129 ...). Generally speaking, the insurance invalidity benefit provided for in Swiss law is a social insurance benefit designed to offset the loss of earnings sustained by an insured person on account of the effects of a health impairment on his or her ability to work, or to compensate for an inability to perform everyday actions as a result of a health problem. The extraordinary invalidity pension pursues the same aim for individuals who have been disabled since birth (or have become disabled without having acquired entitlement to an ordinary pension). As regards the invalidity allowance, it is awarded on the basis of a long-term need for assistance by others or for the personal supervision of the insured person concerned in performing ordinary everyday actions on account of a health impairment. Those social insurance benefits are paid regardless of the beneficiaries’ lifestyle, that is, irrespective of whether they live alone, with family or in an institution (with certain exceptions irrelevant to the present case: see, for example, section 42 (5) LAI and section 35bis (3) RAI). From that angle, the benefits are, precisely, intended to enable adult beneficiaries to lead as autonomous a life as possible, without having to depend on help and assistance from members of their families. They are not designed to promote family life or to intervene in personal or family relationships. Contrary to the examples cited by the appellants, and according to a legal opinion to which they refer (Matthias Kradolfer, op. cit., p. 73), to wit a parental leave allowance (see Petrovic, § 27) and an ‘assistance pension’ paid to the parents of a disabled child (see Moskal v Poland § 93), the Swiss extraordinary invalidity pension and disability allowance are not aimed at enabling one of the parents to remain at home in order to look after their (adult) child. Accordingly, the withdrawal of those benefits on account of the non-fulfilment of the criterion of ordinary residence in Switzerland laid down in domestic law does not fall within the scope of Article 8 ECHR.”
16. In declaring Article 8 of the Convention inapplicable in the instant case the Federal Court saw no need to assess the existence of discrimination within the meaning of Article 14 of the Convention. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
 A. Non-contributory benefits in Swiss law
1. Preliminary remarks
17. It should be pointed out at the outset that Switzerland has not concluded any international agreement with Brazil concerning disability benefits. 18. One of the main differences between ordinary pensions and, as in the instant case, extraordinary pensions and the disability allowance, is that the latter are granted on the condition of having a private address and ordinary residence in Switzerland. It follows that ordinary invalidity pensions, as contributory benefits, can be exported to a foreign country (under the exportation principle) and extraordinary invalidity pensions and the disability allowance cannot. The Report published by the Federal Commission of Experts for the introduction of disability insurance on 30 November 1956 explained that extraordinary pensions, as non-contributory benefits, were not paid abroad because they were primarily funded from public monies, to which persons residing outside Switzerland do not contribute. 19. Section 17 (2) of the Federal Law on Social Insurance (general section) (LPGA) of 6 October 2000 provides that:
“any long-term benefit granted pursuant to a decision which has become final shall, ex officio or on request, be increased or reduced accordingly, or else withdrawn, where the conditions for its grant have significantly changed.”
2. Functional disability allowance (Hilflosenentschädigung)
20. Pursuant to section 9 of the LPGA, a person suffering from functional disability is anyone who, on account of a health impairment, needs permanent assistance from another person or personal supervision in order to perform ordinary everyday actions. 21. Section 42 (1) of the Federal Law on Disability Insurance of 19 June 1959 (LAI) provides:
“insured persons suffering from functional disability ... who have their private address and ordinary residence ... in Switzerland are entitled to a functional disability allowance.”
22. Under section 77 (2) LAI, the functional disability allowance is funded exclusively by the Confederation. It is a non-contributory benefit. 23. Entitlement to a functional disability allowance does not depend on whether or not the person concerned is in receipt of an invalidity insurance benefit. The allowance is a cash benefit assessed according to the person’s needs in terms of assistance and supervision, irrespective of actual costs and actual recourse to the services of third persons. 3. Extraordinary disability insurance pension (“pension increased in respect of persons disabled from birth”)
24. Prior to 1 January 2008, a date which is decisive in the present case, persons with disabilities were eligible for an ordinary invalidity insurance pension if, at the onset of their invalidity, they had been contributing for at least one year. Persons who had not yet been subject to compulsory contributions for a full year were entitled to an extraordinary invalidity insurance pension. 25. Section 39 LAI mentions that the entitlement of Swiss nationals to extraordinary pensions is governed by the provisions of the 20 December 1946 Federal Law on pension insurance and survivors (LAVS). Section 42 LAVS provides:
 “1 Swiss nationals having their private home and ordinary residence ... in Switzerland are entitled to an extraordinary pension if they have the same number of years’ insurance as other persons in the same age bracket but are not entitled to an ordinary pension because they have not been subject to compulsory payment of contributions for at least one year. ... .
2 Any insured person who is granted a pension must personally satisfy the requirement of a private home and ordinary residence in Switzerland.” ... 26. As regards the “ordinary residence” requirement, section 13 (2 ) LPGA provides that
“a person is deemed to have his or her ordinary residence at the place where he or she resides or has resided for a period of time, regardless of the length of that period of time.”
27. Section 13 (1) LPGA refers to the Swiss Civil Code of 10 December 1907, the relevant provisions of which provide:
Article 23 CC : Private home (domicile) (Definition)
“1 A person’s private home is the place where he or she resides with the intention of settling there; residence in a training institution or accommodation in an educational institution, a nursing or old people’s home, a hospital or a detention centre does not per se constitute a private home.
2 No one may have several private homes simultaneously. ...”
Article 26 CC: Private home of adults under general guardianship orders
“The private home of adults under general guardianship orders is the headquarters of the adult protection agency.”
B. Non-contributory benefits in international social security law
28. Article 9 of the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, which came into force in respect of Switzerland on 18 September 1998, enshrines the right to social security. Nevertheless, in its General Comment No. 19 of 4 February 2008 (E/C.12/GC/19), the Committee on Economic, Social and Cultural Rights notes the following as regards the international implementation of the obligations deriving from the right secured (italics added):
“56. States parties should ensure that the right to social security is given due attention in international agreements and, to that end, should consider the development of further legal instruments. The Committee notes the importance of establishing reciprocal bilateral and multilateral international agreements or other instruments for coordinating or harmonizing contributory social security schemes for migrant workers. ...”
29. Article 32 (1) of ILO Convention No. 128 of 29 June 1967 concerning Disability, Old-Age and Survivors’ Benefits, which came into force in respect of Switzerland on 13 September 1978, permits the suspension of
“a benefit to which a person protected would otherwise be entitled  ... (a) as long as the person concerned is absent from the territory of the Member, except, under prescribed conditions, in the case of a contributory benefit. ... .” [italics added]
30. Pursuant to Article 11 of the European Convention on Social Security of 14 December 1972, designed as an instrument coordinating the Council of Europe social security schemes (Council of Europe Treaty Series (CETS) no. 078, not ratified by the Swiss Confederation, the following are excluded from the scope of that convention (italics added):
“(a) special non-contributory benefits granted to invalids who are unable to earn a living; (b) special non-contributory benefits granted to persons not entitled to normal benefits; ... .”
C. Non-contributory benefits under comparative law
31. Comparison of legislation in thirty-four member States of the Council of Europe (Albania, Armenia, Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Cyprus, Croatia, Estonia, France, Germany, Greece, Hungary, Ireland, Iceland, Italy, Liechtenstein, Lithuania, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Poland, Portugal, Romania, the Russian Federation, San Marino, Serbia, Slovenia, Spain, Sweden, Turkey, Ukraine and the United Kingdom) and three non-member States (Canada, Hong Kong and the United States) led to the following conclusions. (1) The general rule in seventeen of the States compared is that contributory pensions are exportable, but that permanent residence is a precondition for entitlement to non-contributory benefits (Albania, Armenia, Austria, Belgium, Canada, the United States, France, Germany, Hong Kong, Ireland, Italy, Lithuania, Poland, Portugal, San Marino, Turkey and Ukraine). Some of those States, however, lay down special rules on the exportability of non‑contributory benefits. In Austria and Germany, people with severe disabilities may apply for a “severely disabled pass” (Schwerbehindertenausweis) stating their degree of disability and facilitating the receipt of benefits. Foreign residents can also obtain this pass if there is a “sufficient link” with the State of origin. Italy allows beneficiaries of some benefits to retain them abroad, albeit only for six months or for serious medical reasons. Poland also permits the exportation of specific benefits in the event of a temporary absence from the country. Belgium and Ireland allow for derogations from the general rule of non-exportability, particularly in cases of extreme necessity. In Portugal, exportation is exceptionally possible where the disabled person is accompanying a close relative working abroad in the Portuguese national interest. (2) The general rule in eighteen of the States compared is that disability benefits are non-exportable, be they contributory or not (Bosnia-Herzegovina, Bulgaria, Cyprus, Estonia, Greece, Hungary, Iceland, Liechtenstein, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Monaco, the Netherlands, Romania, the Russian Federation, Serbia, Slovenia, Sweden and the United Kingdom). (3) Two States fall into neither of those categories inasmuch as the exportability of a benefit is decided on a case-by-case basis, regardless of whether the benefit is contributory or not (Croatia and Spain). (4) Benefits may, however, be exportable if the State in question has concluded a bilateral international agreement on that subject. (5) Furthermore, EU Member States must comply with the relevant provisions of EU law set out below as regards the exportation of benefits within the European Union. D. Non-contributory benefits in European Union law
32. Social security benefits are coordinated within the European Union. Such coordination is governed by the principle of the exportability of social welfare benefits between EU countries. However, European law does not address the matter of the exportability of benefits to third States, and the legislative powers in this field and competence to conclude international agreements with third States remain at the national level. 33. The original texts on social security coordination in the European Union (such as Regulation No. 1408/71/EEC of 14 June 1971) make no mention of special non-contributory cash benefits. Decisions were thus taken against a number of States which had refused to pay benefits to persons not residing in their territory. It was not until the enactment of Regulation No. 1247/92/EC that the category of special non-contributory cash benefits was created, specifying, within the ambit of Regulation No. 1408/71/EEC of 14 June 1971, that those benefits would not be exportable. 34. The Court of Justice of the European Union subsequently developed case-law concerning the conditions under which a benefit qualified as a special non-contributory cash benefit. Those conditions have now been codified in Regulation No. 883/2004/EC of 29 April 2004 (Article 70 paragraph 2):
“2. For the purposes of this Chapter, ‘special non-contributory cash benefits’ means those which:
(a) are intended to provide either:
(i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned;
or
(ii) solely specific protection for the disabled, closely linked to the said person’s social environment in the Member State concerned,
and
(b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone,
and
(c) are listed in Annex X.”
35. The Regulation also states that disability benefits are subject to it, pursuant to Article 3 § 1 (c):
Article 3
“Matters covered
1. This Regulation shall apply to all legislation concerning the following branches of social security:
(c) invalidity benefits; ...”
36. Article 70 (4) of the Regulation sets out the principle that special non-contributory cash benefits are not exportable:
“4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.”
37. Member States of the European Union must list the benefits which they grant and which satisfy the conditions governing special non-contributory benefits set out in Annex X to Regulation No. 883/2004/EC of 29 April 2004 in order to obtain any derogation to the exportability of benefits. 38. However, the Court of Justice of the European Union does not verify whether the benefits listed in Annex X correspond to special non-contributory cash benefits. It transpires from its case-law that:
(i)  if the benefit is considered as a sickness cash benefit, it must be granted irrespective of the Member State in which the recipient is resident (see CJEU, 5 May 2011, European Commission v. Federal Republic of Germany, C-206/10, para. 30); however,
(ii)  the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the Member State concerned, for example if it is based on the minimum wage or the standard of living in that State (see CJEU, 5 May 2011, Ralph James Bartlett and Others v. Secretary of State for Work and Pensions, C-537/09, para. 38). 39. The Court of Justice has also restricted the possibility of invoking the residence condition against an EU citizen in respect of a special non-contributory cash benefit in cases involving freedom of movement. In a case concerning a man who was in receipt of benefits in the Netherlands until he moved to Belgium, when they were no longer paid even though he continued to work in the Netherlands, where he had also retained all his economic and social ties, the Court considered that the implementation of the conditions set out in the European regulation should not impinge on the rights deriving from the freedom of movement of workers beyond what was required to attain the legitimate object pursued by national law (see CJCE, Grand Chamber, 11 September 2007, H. v. Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen, C-287/05, para. 56). E. Applicability of Regulation No. 883/2004/EC to Switzerland
40. Regulation No. 883/2004/EC of 29 April 2004 has been applicable to Switzerland in its relations with the Member States of the European Union since 1 April 2012, in the framework of the Agreement on freedom of movement of persons between Switzerland and the European Union. The following Swiss benefits are listed in Annex X to the Regulation:
“1. Supplementary benefits (Federal Supplementary Benefits Act of 6 October 2006) and similar benefits provided for under cantonal legislation. 2. Pensions in the case of hardship under invalidity insurance (Article 28 sub-paragraph 1a of the Federal Invalidity Insurance Act of 19 June 1959, as amended on 7 October 1994). 3. Non-contributory mixed benefits in the event of unemployment, as provided for under cantonal legislation. 4. Non-contributory extraordinary invalidity pensions for disabled persons (Article 39 of the Federal Invalidity Insurance Act of 19 June 1959) who have not been subject, before their incapacity for work, to the Swiss legislation on the basis of an activity as an employed or self-employed person.”
41. In it judgment ATF 141 V 530 of 11 September 2015, the Federal Court pointed out that extraordinary invalidity pensions satisfied all the criteria to be considered as special benefits within the meaning of Article 70 § 2 of Regulation No. 883/2004. “7.3.3 In order to justify its position vis-à-vis the European institutions, the Swiss Confederation first of all observed that in order to be eligible for an ordinary disability insurance pension, insured persons had to have paid contributions for at least three years at the time when they became unfit for work. Persons who have been disabled since birth or childhood cannot fulfil that condition, given that they were unable to work before the age               at which they would have begun to pay contributions. That is why such persons were entitled to a special pension corresponding to the amount of the minimum ordinary invalidity pension. That pension was granted to persons over the age of eighteen living in Switzerland (see proposal of 28 June 2010 cited above, pp. 8 and 9). According to the explanations provided by the Swiss Confederation, it was justifiable to include the extraordinary invalidity insurance pension in the list of special non-contributory cash benefits, because it fulfilled all the criteria for being considered as a special non-contributory benefit within the meaning of Article 4 para. 2bis of Regulation No. 1408/71 and the relevant CJEC case-law. It was first and foremost a mixed benefit: on the one hand it had specific social-security features in that the persons concerned had a clearly defined right to that benefit and it covered the invalidity risk; on the other hand it was also linked to social assistance in that it was not based on periods of work or contribution and was not aimed at mitigating a situation of need by providing a minimum living wage to a socially underprivileged group (young persons with disabilities). The extraordinary pension was also a special benefit, since it was an alternative allowance aimed at persons who did not fulfil the insurance conditions to obtain an ordinary invalidity pension; it was closely linked to the socio-economic situation in Switzerland, since it corresponded to the minimum pension in that State. Finally, the extraordinary pension was non-contributory, as it was not funded from contributions but exclusively by the Confederation (see proposal of 28 June 2010 cited above, p. 8).”
42. The Federal Court also confirmed that disability allowances (section 42 (1) LAI) constitute special non-contributory cash benefits (ATF 142 V 2, 17 December 2015). F. United Nations Convention on the Rights of Persons with Disabilities
43. The relevant provisions of the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, ratified by Switzerland on 15 April 2014, read as follows:
Article 2 (3) (definitions)
“‘Discrimination on the basis of disability’” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation ... Article 3: General principles
The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities. Article 5: Equality and non-discrimination
1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. ... Article 19: Living independently and being included in the community
 States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. Article 28: Adequate standard of living and social protection
  1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. 2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:
...
b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes;
...
e) To ensure equal access by persons with disabilities to retirement benefits and programmes.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH aRTICLE 8 OF THE CONVENTION
44. The applicants complained of a violation of Article 14 taken in conjunction with Article 8 of the Convention, on the grounds that the requirement of a private home (domicile) in Switzerland was directly linked to the nature of the first applicant’s disability. They submitted that the decisive criterion for the first applicant to be eligible for the benefits in issue, that is to say having a private home in Switzerland, depended, in a discriminatory manner, on the type of disability – congenital – suffered by the applicant, since disabled persons who had been able to pay contributions were able to export their pensions. Those two provisions provided:
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 8
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. Admissibility
45. The Government invited the Court to declare inadmissible the complaint under Article 14 read in conjunction with Article 8, as their main submission, as being incompatible ratione materiae with the Convention pursuant to Article 35 § 3 (a) of the Convention, and in the alternative, as being manifestly ill-founded. 46. The applicants considered the complaint admissible. 47. The Court holds that the Government’s argument that Article 8 is not applicable to the present case, which would render the complaint under Article 14 inadmissible ratione materiae, goes to the merits of the case. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It should therefore be declared admissible. B. Merits
1. Applicability of Article 14 read in conjunction with Article 8 of the Convention
(a)  The parties’ submissions
(i)  The Government
48. According to the Government, Article 8 of the Convention does not give rise to direct entitlement to social insurance benefits outside Switzerland. 49. The Government acknowledged that the Court had not ruled out the possibility of certain social benefits falling within the scope of Article 8 of the Convention. The Government cited, in particular Petrovic v. Austria (27 March 1998, §§ 26 et seq., Reports of Judgments and Decisions 1998‑II), concerning a parental leave allowance, and Moskal v. Poland (no. 10373/05, § 93, 15 September 2009), concerning an early retirement pension for the parents of a disabled child, and submitted that the benefits at issue in the present case were not designed to enable one of the parents to remain at home to look after children or to promote family life: they were intended to allow adult beneficiaries to lead an autonomous, independent life. 50. Referring to Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 53, ECHR 2006‑VI, the Government emphasised that the Convention did not restrict the Contracting States’ freedom to decide whether or not to put in place a given social security scheme. Furthermore, even if such a scheme existed, the Government submitted that the right to a social benefit was a pecuniary right for the purposes of Article 1 of Protocol No. 1 to the Convention, which was not binding on Switzerland since it had not ratified it. 51. The Government further emphasised that the recruitment of a home-care nurse was not impossible given the current incomes of the second applicant and her husband, who had, moreover, defrayed the cost of medical provision thus far, having regard to the cost of living in Brazil. 52. The Government took the view that since the facts of the case did not fall within the scope of any Convention provision, Article 14 of the Convention was also applicable to the present case. (ii)  The applicants
53. The applicants submitted that Article 8 of the Convention was applicable to the present case because the measures taken by the State were jeopardising the first applicant’s life and health, both applicants’ autonomy and private life, and also their overall family unity. 54. The applicants denied invoking any right to live abroad; the second applicant, whom the first applicant needed because her father was unable to look after her, had followed her husband to Brazil out of financial necessity, in order to manage a hotel, which they were now attempting, without much success, to sell before returning to Switzerland. 55. The applicants alleged in particular that they were facing serious difficulties in organising their daily private lives, given that the first applicant could no longer benefit from the help of a trained assistant and that healthcare had to be provided by the second applicant – an elderly woman – whose ability to manage her hotel was being restricted. The applicants, referring to Glor v. Switzerland, no. 13444/04, § 54, ECHR 2009, also argued that a decision with mainly pecuniary consequences stemming from a disability fell within the ambit of Article 8 of the Convention. 56. The applicants, citing the judgments delivers in Petrovic v. Austria, cited above, §§ 27-29, and Moskal v. Poland, cited above, § 93, also submitted that family life was relevant because of the relationship of dependency between the first applicant, who had no capacity of discernment, and the second applicant, who held parental authority. The applicants added that the affective relationship between the first applicant and her stepfather was real and should be protected. (b)  The Court’s assessment
57. As regards protection against discrimination, it should be remembered that Article 14 only complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not presuppose a breach of those provisions. It is necessary and sufficient that the facts at issue fall within the ambit of at least one of the provisions of the Convention or its Protocols (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts)). 58. The Court also reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount (see Yuri Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Moreover, the Convention does not confer on an individual a right to enjoy any given standard of living (see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005). 59. As regards the “family life” aspect of Article 8, the Court observes from the outset that that concept does not include only social, moral or cultural relations; it also comprises interests of a material kind (see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004). 60. As regards the “private life” aspect of Article 8, the Court has already had occasion to observe that it is a broad term which is not susceptible to exhaustive definition. It can sometimes cover the physical and social integrity of the person (see Glor v. Switzerland, no. 13444/04, § 52, ECHR 2009; Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; and Otgon v. the Republic of Moldova, no. 22743/07, 25 October 2016). 61. The “private life” concept also covers the right to personal development and to establish and develop relationships with other human beings and the outside world (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑I). Finally, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011). 62. In a recent case against Switzerland, the Court considered Article 8 applicable under its “private” aspect, in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the method of calculating the degree of disability used in the case placed individuals wishing to work part-time at a disadvantage compared with those in full-time paid work and those who did not work at all, the Court could not rule out that this method of calculating disability would limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare (see Di Trizio v. Switzerland, no. 7186/09, § 64, 2 February 2016). 63. As regards the present case, the Court acknowledges that Article 8 or the Convention clearly cannot be interpreted as imposing a positive obligation on States to continue to pay social benefits regardless of ordinary residence. On the other hand, the Court also reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, among many other authorities, Kimlya and Others v. Russia, nos. 76836/01 and 32782/03, § 86, ECHR 2009, and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In other words, therefore, regard must be had to the specific features of the individual case, particularly the social and family situations in which the applicants find themselves. 64. The applicants relied on respect for their private life, family unity and their autonomy. They argued that the first applicant needed the support of the second applicant, who is living in Brazil with her husband for professional reasons. Furthermore, the first applicant has been under the parental authority of the second applicant since 2009. 65. The Court reiterates from the outset that although both applicants are adults, the first one has been deaf since birth, has difficulty speaking her mother tongue and has no capacity of discernment on account of a severe disability which has required comprehensive therapeutic provision throughout her life (see paragraph 8 above). The requisite care is, precisely, provided by the second applicant, who is not only her mother but also her guardian (see paragraph 7 above). Accordingly, the Court considers that in this situation involves “additional factors of dependence, other than normal emotional ties”, which exceptionally bring into play the guarantees that derive from the “family life” aspect of Article 8 between adults (see, mutatis mutandis, Emonet and Others v. Switzerland, no. 39051/03, § 80, 13 December 2007, and Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000). 66. The Court considers that the refusal to pay the pension abroad was liable to affect the organisation of the applicants’ family life (see, to that effect, Di Trizio, cited above, § 62). Indeed, they face a situation which requires taking difficult decisions, all of which are likely to impact on their family life: either they decide to enjoy their family life in Brazil, where the second applicant is married, with the consequence of losing entitlement to the benefits ; or they decide to retain their entitlement to the pension ; in the latter hypothesis, the second applicant must choose between separation from her daughter, over whom she holds parental authority but who must of necessity live in Switzerland in order to receive the benefits, and separation from her husband, who cannot, for professional reasons, be expected to leave Brazil. 67. Having regard to the foregoing considerations, the applicants’ complaint falls within the ambit of Article 8. It follows that Article 14 of the Convention, read in conjunction with Article 8, is applicable in the present case.
2.

Outcome for Article 14: no_violation