Resolution CM/ResDH(2011)161

Execution of the judgment of the European Court of Human Rights
Schlumpf against Switzerland

(Application No. 29002/06, judgment of 8 January 2009, final on 5 June 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of certain civil proceedings and the lack of a public hearing (violations of Article 6, paragraph 1); as well as disproportionate interference with the applicant’s right to private life (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Switzerland’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)161

Information about the measures to comply with the judgment in the case of
Schlumpf against Switzerland

Introductory case summary

The applicant, born in 1937, decided in 2002 to change sex and from then on lived her daily life as a woman.
On 30 November 2004 she underwent the sex-change operation despite her health insurer’s refusal to reimburse the attendant costs. Her action against the insurance company before the Swiss courts to recover the costs of the operation was unsuccessful. On 5 December 2005 it was ultimately dismissed by the Federal Insurance Court, finding it unnecessary to hear the medical experts as she had undertaken the operation before the expiry of the two-year observation period as required by its case-law.
The European Court considered that it was disproportionate not to accept expert opinions, especially as it was not in dispute that the applicant was ill. By refusing to allow the applicant to adduce such evidence on the basis of an abstract rule which had its origin in two of its own decisions in 1988, the Federal Insurance Court had substituted its view for that of the medical profession, whereas the Court had previously ruled that determination of the need for sex-change measures was not a matter for judicial assessment (violation of Article 6, paragraph 1).

The case also concerns the lack of a public hearing (violation of Article 6, paragraph 1). The Court found that a hearing should have taken place at least at one level of jurisdiction, since the applicant had not waived her right to a public hearing before the Federal Court. Nor had the question of her sex-change been of an exclusively legal or technical matter, in which case the domestic courts might have abstained from holding a hearing.

Furthermore, the case concerns disproportionate interference with the applicant’s right to private life (violation of Article 8).The Court considered that respect for her private life required account to be taken of the medical, biological and psychological facts, expressed unequivocally by the medical experts, to avoid a mechanical application of the two-year period. It concluded that, in view of the applicant’s particular situation as regards her age, the Swiss authorities failed to strike a fair balance between the interests of the insurance company and those of the applicant.

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
-	15000 EUR	8000 EUR	23000 EUR	
Paid on 17/06/2009	

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage.
The applicant’s sex-change was registered on 14/02/2005.
Following the Court’s judgment, the applicant lodged a revision request with the Federal Court. On 15 September 2010 it held a hearing in which it heard the applicant and delivered its judgment. The applicant’s revision request was granted, the judgment of 5 December 2005 was quashed and as a result, the applicant’s case was remitted to the insurance company for further examination. No further individual measure seems necessary in this case.

II.	General measures

1) Violation of Article 6§1 concerning lack of an oral hearing: Swiss law provided a legal basis for oral hearings (see Section 112 of the 1943 Federal Court Act, in force until 31 December 2006; and Section 9§2 of the Rules of the Federal Insurance Tribunal of 1999, as in force at the material time. Moreover, according to the case-law of the Federal Insurance Tribunal (judgment K. of 8/04/2004, I 573/03), it could only abstain from a hearing when a case involved legal or highly technical questions. Therefore the violation constituted an isolated incident resulting from the particular circumstances of the case.

2) Violations of Articles 6§1 and 8 concerning the disregard of expert opinions: The Swiss authorities considered that the violations constituted isolated incidents resulting from the particular circumstances of the case. In view of the direct effect of the Convention and the European Court’s case-law in Switzerland, publication and dissemination of the Court’s judgment to the relevant authorities should prevent similar violations. Thus, on 18 June 2009 the judgment was transmitted to the Federal Court, the Canton concerned (Aargau), and the Federal Office of Public Health as the supervisory authority for the Federal Act of 18 March 1994 on health insurance.
Furthermore, by its judgment of 15 September 2010 mentioned above, the Federal Court held that although the two-year observation period, set up by the national jurisprudence, should persist in general, an individual evaluation would be possible in specific cases and reimbursement of medical expenses would not automatically be refused solely because of the fact that the required two years had not yet passed. By so deciding, the Federal Court re-adjusted the domestic case-law in line with the Court’s judgment.

III.	Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.