Refusal of a survivor's pension from the mandatory accident insurance in the case of intentional homicide

Facts

[R.], born in 1953, married in 1974 and had 5 children. In 1989, the family settled in Valais. The marital relationship deteriorated, with physical and psychological violence exercised by the husband against the wife. On March 15, 1993, while the husband was threatening his wife with a revolver, she seized the weapon and shot him dead. Convicted of a crime of passion, [R.] was found guilty of having acted in a putative state of necessity. The Valais Cantonal Compensation Fund and the Zurich insurance company denied her the right to a survivor's pension from the mandatory accident insurance, on the grounds that she had intentionally caused the insured's death.

Considerations

Art. 38 para. 1 AIA provides that if a survivor has intentionally caused the death of the insured, they are not entitled to cash benefits. This provision is in line with the logic of the mandatory accident insurance system, which does not cover intentionally caused damage. Although [R.] acted in a putative state of necessity, the criminal judge recognized that she had acted intentionally, with awareness and volition. Therefore, Zurich was justified in denying her the right to a survivor's pension, in accordance with Art. 38 para. 1 AIA.

Contrary to Art. 18 para. 1 OASIA, which leaves a certain margin of discretion…