European Court of Human Rights Chamber Judgment: Glor -v- Switzerland
Judgment was given on May 12th 2009 (application no 13444/04) following a hearing by seven judges: Nina Vaji (Croatia), president, Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland) and George Nicolaou (Cyprus), with André Wampach, deputy section registrar.
Judgment
The court held unanimously that there had been a violation of Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private and family life), of the European Convention on Human Rights as regards the obligation for the applicant to pay a tax to be exempted from military service on medical grounds, despite having been willing to perform his service.
Under Article 41 (just satisfaction) of the Convention, the court awarded the applicant €3,650 for costs and expenses. (The judgment is available only in French.)
Background
The applicant, Sven Glor, is a national of the Swiss Confederation who was born in 1978 and lives in Dällikon (canton of Zurich).
He is a lorry driver.
On 14 March 1997 he was declared unfit for military service as he was suffering from diabetes (diabetes mellitus type 1).
He was subsequently discharged from the Civil Protection Service in 1999.
On August 9th, 2001, the applicant received an order to pay the military-service exemption tax (€477), which he challenged.
On September 20th, 2001, the Federal Tax Administration recommended that additional examinations be carried out to ascertain whether the applicant was at least 40 per cent disabled, the threshold for a “major disability” as defined in the Federal Court’s case law and for non-liability to the exemption tax.
On July 15th, 2003, the authorities in charge of the exemption tax found on the basis of two expert reports – by a university hospital and an army doctor – that the applicant could not be exempted from the tax as his degree of disability was lower than 40 per cent.
On March 9th, 2004, the Federal Court dismissed an appeal by the applicant, who again alleged that he had been subjected to discriminatory treatment by being required to pay the exemption tax, and that he had been prevented from performing his military service despite having always stated his willingness to do so.
The Federal Court noted that, although the applicant’s type of diabetes could not prevent him from carrying on a normal professional activity, the particular demands of military service meant that he had to be declared unfit for that purpose.
It held that the authorities had simply applied the provisions in force as appropriate, with the aim of ensuring equality between those who performed their military service and those who were exempted.
Relying on Article 14 taken in conjunction with Article 8, the applicant complained to the European Court of Human Rights that he had been discriminated against in that he had been prevented against his will from performing his military service, while being obliged to pay the exemption tax as his disability was not considered a major one by the authorities.
Decision
The court considered Article 14 in conjunction with Article 8.
The court observed that the notion of private life within the meaning of Article 8 included a person’s physical integrity and that a state tax based on unfitness to serve in the armed forces for medical reasons indisputably fell within the ambit of that Article.
The court considered that the Swiss authorities had treated persons in similar situations differently in two respects: firstly, the applicant was liable to the exemption tax, unlike persons with more severe disabilities, and secondly, he was unable to perform alternative civilian service, which by Swiss law was reserved for conscientious objectors.
The first difference in treatment, according to the Swiss Government, was designed to restore equality between those who performed their military service and those who were exempted, as the tax was a substitute for the efforts of those who performed their service.
The court was not satisfied that it was in the interests of the community to require the applicant to pay an exemption tax to substitute for the efforts of military service, which he had been prevented from performing on medical grounds, a factual situation outside his control.
The court also pointed out that the deterrent role of the tax was only slight, seeing that the Swiss armed forces had a sufficient number of people available who were fit for military service, and noted that the financial revenues from it were probably not insignificant.
It further observed that a tax of this kind did not exist in most other countries.
From the applicants point of view, the sum of €477 he was required to pay in respect of the tax in question could not be described as insignificant, particularly as his income was modest and the tax was levied annually throughout the period of compulsory service, amounting to at least eight years.
With regard to the assessment of the applicant’s degree of disability, the court considered that the Swiss authorities had not taken sufficient account of his personal circumstances.
They had relied on the case law of the Federal Court and on a precedent that scarcely bore comparison – the case of an amputee – in finding that the applicant was less than 40 per cent disabled.
The court further noted that the legislation did not provide for any exemption from the tax in question for those who were below the 40 per cent disability threshold and who had only a modest income.
The court suggested that people in the applicant’s case might be offered the possibility of alternative forms of service in the armed forces that entailed less physical effort and were compatible with the constraints of a partial disability – in his case, insulin injections four times a day – or of civilian service, without that option being reserved for conscientious objectors alone.
The court concluded that there had been a violation of Article 14 taken in conjunction with Article 8, finding that the applicant had been the victim of discriminatory treatment as there had been no reasonable justification for the distinction made by the Swiss authorities between, in particular, persons who were unfit for service and not liable to the tax in question and those who were unfit for service but were nevertheless obliged to pay the tax.
The courts judgments are on its internet site (http://www.echr.coe.int).
Commenting on the decision, Prof Gerard Quinn, head of the Centre for Disability Law and Policy, NUIG, said: “This decision is the first step in bringing the UN convention on the rights of persons with disabilities closer to Europe.
“Even without ratification by Ireland the Convention is already indirectly relevant to us as a result of this decision and others that will surely follow.
“It is widely expected that the EU (separate from the member states) will also ratify the Convention later this year.
“When this happens it will become a significant driver of EU policy and will inform fresh legislative proposals. In short, one way or another, the Convention is already relevant in domestic Irish debates about the future shape of disability law and policy.”