Facts
The appellant, an insured person born in 1969, represented by a lawyer, claimed benefits under the disability insurance scheme. The IV office of the canton of Zug denied entitlement to benefits by decisions of 31 May 2001 and 6 September 2010 and finally by decision of 29 May 2015. The Administrative Court of the canton of Zug dismissed the appeal lodged against it by decision of 18 February 2016. The Federal Supreme Court partially upheld the appeal by judgment 8C_262/2016 of 22 September 2016 and remitted the matter for the obtaining of a judicial supplementary expert opinion and for a new decision.
The Administrative Court then obtained the psychiatric supplementary expert opinion of 11 February 2019 and gave the parties an opportunity to comment. In its statement of 26 June 2019 the appellant disputed the suitability of the expert opinion as a basis for decision and expressly requested the holding of a public hearing, alternatively the obtaining of a supplementary expert opinion. In support, it argued that the expert was to be questioned at the hearing and that the public should learn how the IV office had surveilled her.
The Administrative Court dismissed the appeal by decision of 26 September 2019 without a public hearing. It reasoned that the request was primarily aimed at taking evidence and contradicted the public interest in the speedy conclusion of proceedings; moreover, the request was forfeited.
By appeal in public law matters, the appellant requested that the decision of the lower court be set aside and the matter be remitted for proceedings conducted in conformity with the law. The respondent and the cantonal court requested dismissal. The Federal Social Insurance Office waived a response.
The subject matter of the dispute was whether the cantonal court violated Art. 6 para. 1 ECHR by failing to hold a public hearing despite an express request.
Considerations
The appeal in public law matters is admissible under Art. 82 ff. FSCA; complaints may be raised of violations of law under Art. 95 f. FSCA. In procedural terms, the appellant complains of a violation of Art. 6 para. 1 ECHR due to the refused public hearing.
Under Art. 6 para. 1 ECHR, everyone is entitled to a public hearing before an independent court where civil rights and obligations are at issue. Here, the matter concerns benefit entitlements under the disability insurance scheme, which are considered civil rights. Where a party makes a clear and unambiguous request, the cantonal court must in principle hold a public hearing; a request made during the ordinary exchange of written submissions is timely.
A requested public hearing may be dispensed with only if the request is chicanous, abusive or dilatory, if the appeal is manifestly unfounded or inadmissible, if the subject matter is highly technical (for instance purely arithmetical questions), or if the court, on the basis of the file, intends to grant the request of the requesting party. The assessment of medical expert opinions generally does not fall under the technical exceptions.
The Federal Supreme Court notes that in its statement of 26 June 2019 the appellant expressly requested a public hearing. Admittedly, part of the reasoning was directed at questioning the expert and thus at taking evidence, for which the principle of publicity grants no entitlement. However, the appellant also argued that the public should learn of the surveillance measures. A request aimed exclusively at taking evidence therefore did not exist, which is why the request should have been…