Facts
Parties: Appellant [A.] , represented by attorney Ramin Nasseri-Rad, against the InvIA office for insured persons abroad (IVSTA).
Facts: [A.] , born in 1958, has been receiving a disability pension since 2013. He applied for a child's pension for his stepdaughter [B.B.] . The IVSTA rejected the application as there was no household community. The Federal Administrative Court confirmed this decision. [A.] filed an appeal with the Federal Supreme Court.
Main issue: Violation of the right to be heard by omitting the preliminary decision procedure.
Considerations
The Federal Supreme Court first examines the procedural aspects, in particular the application for an oral hearing, which it rejects due to the written nature of the proceedings. It then addresses the substantive aspects and finds that the preliminary decision procedure pursuant to Art. 57a InvIA and Art. 73bis InvIO must be conducted. The omission of this procedure constitutes a serious violation of the right to be heard, which cannot generally be remedied.
The Federal Supreme Court emphasizes that the preliminary decision procedure not only meets the constitutional minimum requirement but goes beyond it by giving the insured the opportunity to comment on the planned application of the law. The lower court did recognize the violation of the right to be heard but did not draw any legal consequences from it. The Federal Supreme Court notes that the violation of the right to be heard is of a formal nature and, regardless of the chances of success of the appeal, leads to the setting aside of the contested decision.
The lower court argued that a referral of the matter back to the…