The decision of the ECHR of October 20, 2020 in the case " B. v. Switzerland (B. v. Switzerland)" (aplication No. 78630/12).
In 2012, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Switzerland.
In the case, an aplication was successfully considered against the termination of payment of a pension after the child reaches the age of majority to the surviving parent of the child who has full parental rights, since this parent is a man. The case involved a violation of the requirements of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
After the death of his wife, the applicant quit his job to raise their two children, and he was paid a pension "in connection with the loss of a spouse" on the basis of the Federal Law on Retirement Age and Insurance of Surviving Relatives. According to this law, the payment of the applicant's pension stopped when his youngest daughter reached the age of majority in 2010. The applicant appealed against this ground for the termination of his pension payment as discriminatory, arguing that the law did not contain a similar restriction if the surviving parent was a woman. In 2012, the Swiss Federal Court rejected the applicant's complaint, finding that, although the difference in treatment did not comply with the principle of equality, article 14 of the Convention was not applicable to the applicant's case either in connection with the right to use property, since Switzerland had not ratified Protocol No. 1 to the Convention, nor in conjunction with article 8 of the Convention.
Regarding compliance with article 14 of the Convention. Applicability of article 14 of the Convention. In general, a spouse's bereavement pension is designed so that the surviving spouse does not have to work and so that he or she can have time to take care of their children. In this regard, the pension in question is connected with the" family", since it has a real impact on the organization of their family life by the surviving spouse.
In the present case, the pension due to the loss of a spouse had very important consequences for the applicant: constantly working until the death of his spouse, after that he devoted his time completely to caring for children, unable to pursue his career for more than 16 years, after which the applicant reached an age when it was very difficult to return to the labor market (57 years at the time of termination of payment of the pension, and 59 years at the date of rejection of the applicant's last complaint).
In such circumstances, the Court held that the spouse's loss pension affected the way in which the applicant organized and structured his family life.
Article 14 of the Convention, considered in conjunction with article 8 of the Convention, is applicable to the case.
The substance of the complaint. The applicant was in a similar position, compared to any woman, with regard to the right to receive a pension in connection with the loss of a spouse. However, the Swiss authorities refused him this payment on the grounds that the applicant was a man (apparently, none of any other provisions of Swiss law was assessed as unfulfilled).
The Swiss authorities explained that the pension in connection with the loss of a spouse was based on the presumption that the husband financially supported his wife, especially when they had children. Although the European Court was ready to accept that the mentioned presumption was an "objective" justification, it did not consider such an excuse "justified". The European Court has previously noted that only very good reasons could make it consider a difference in attitude based solely on the gender of the persons concerned to be in accordance with the Convention. This rule was applied regardless of whether the alleged discrimination affected women or, as in this case, men.
Indeed, it could not be excluded that the establishment of a pension in connection with the loss of a spouse for women, without a corresponding pension for men who lost their wife, could be justified by the role and status of a woman in society at the time of the adoption of the relevant law in 1948. However, references to traditions, general assumptions or prevailing social relations in a particular country today are not enough to justify a discrepancy in the treatment of people because of their gender.
As regards the present case, the Court was unable to establish how the termination of the payment of the applicant's pension would have affected him to a lesser extent than a woman in a similar situation. In particular, it is difficult to understand why the applicant would presumably have faced less difficulties in returning to work at the age of 57 than a woman, given that the applicant had not had a paid job for 16 years.
Consequently, there were no "extremely compelling circumstances" justifying the difference in the treatment of people in the present case. The European Court stressed that this conclusion should not be interpreted as a call for the abolition or reduction of the amount of the corresponding pension for women in order to eliminate the revealed inequality in relation to different recipients of the pension.
The case involved a violation of the requirements of article 14 of the Convention, considered in conjunction with article 8 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 5,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected, since it is possible to obtain consideration of this issue by the Swiss state authorities.