Facts
The present case concerns the question of how to handle the disability pension of an insured person who is in pre-trial detention or serving a prison sentence. Until December 1987, the case law was that in such cases the disability pension had to be revised and revoked, as the insured person was to be considered as not gainfully employed and not disabled in their usual area of responsibility, which consists of serving the sentence.
In a judgment of December 18, 1987 (BGE 113 V 273), however, the Federal Insurance Court reviewed this case law and decided that incarceration or any other form of deprivation of liberty ordered by a criminal authority does not lead to a revision of the pension entitlement, but only to a suspension of the pension. Furthermore, in such cases the supplementary pensions for the spouse and children must continue to be paid.
Considerations
In this judgment, the Federal Court confirms the new case law of the Federal Insurance Court. It states that the fact that an insured person is in prison is not a reason to revise their pension under Art. 41 IVG. On the one hand, the state of health is obviously not changed by the deprivation of liberty, and on the other hand, it cannot be said that there is a real change in the legal status of the insured person. Rather, the convicted person is obliged to work during the execution of a prison or penitentiary sentence, which corresponds to their abilities and enables them to provide for their own maintenance after the end of the deprivation of liberty.
The Federal Court concludes from this that incarceration or any other form of deprivation of liberty ordered by a criminal authority does not constitute…