Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27552/95

by Beáta MACHATOVÁ

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 March 1995 by

Beáta Machatová against the Slovak Republic and registered on

9 June 1995 under file No. 27552/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak national born in 1961. She is partly

disabled and resides in Bratislava.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. The particular circumstances of the case

The applicant raises three children on her own. During the

relevant period the applicant was unemployed. She was receiving a

partial disability pension. Under Slovak law then in force persons

receiving a partial disability pension had no right to education

allowance in respect of their children.

As her income was insufficient, the applicant requested, with

reference to then Section 174 of the Social Security Act (see "The

relevant domestic law" below) that the social security authorities

grant her an ex gratia payment of education allowance in respect of her

three children and a supplement to the education allowance in respect

of her youngest daughter who is disabled. On 9 July 1992 the Bratislava

Social Security Administration recommended that the applicant's claim

be granted.

On 28 December 1992 the Slovak Social Security Administration

rejected the applicant's request. It held that the applicant was

entitled to claim an allowance in respect of dependent children

pursuant to Law No. 382/1990 and that the father of the applicant's

youngest daughter was entitled to claim a family allowance in respect

of his daughter. The Slovak Social Security Administration found no

hardship in the applicant's case. The decision stated that no appeal

was available against it.

The applicant lodged an appeal with the Bratislava 5 District

Court (Obvodny súd). She claimed that her request for relief from

hardship should be granted and alleged, inter alia, a violation of

Articles 6 and 13 of the European Convention on Human Rights. On

28 February 1994 the District Court found that it lacked jurisdiction

to deal with the applicant's case and transferred it to the Bratislava

City Court (Mestsky súd).

On 2 November 1994 the Bratislava City Court discontinued the

proceedings in the applicant's case. It noted that the applicant's

claim concerned relief from hardship pursuant to Section 176 (formerly

Section 174) of the Social Security Act and recalled that pursuant to

Section 248 para. 2 (i) of the Code of Civil Procedure decisions on

such claims cannot be reviewed by general courts.

The applicant lodged a constitutional complaint. She challenged

the decision of the Slovak Social Security Administration of

28 December 1992 and complained, inter alia, that her rights under

Articles 6 para. 1 and 13 of the Convention had been violated.

On 27 January 1997 the Constitutional Court (Ústavny súd)

rejected the applicant's complaint. It recalled that Section 176 of the

Social Security Act provides for the possibility of granting allowances

under that Act, in cases of hardship, to persons who do not meet the

formal requirements for such allowances. The Constitutional Court

further recalled that the clause of hardship set out in Section 176 of

the Social Security Act did not grant an enforceable right to a

particular allowance which could be claimed before a court, and that

granting of an allowance under this head was within the discretionary

power of the competent administrative authority.

B. Relevant domestic law

The applicant introduced her claim for relief from hardship

pursuant to Section 174 (it later became Section 176) of the Social

Security Act (Zákon o sociálnom zabezpecení) of 16 June 1988, as

amended, which provides as follows:

(Translation)

"Relief in cases of hardship under this Act may be granted, in

matters within their respective competence, by the Minister of

Labour, Social Affairs and Family of the Slovak Republic, the

Minister of Defence of the Slovak Republic, the Minister of

Interior of the Slovak Republic and the Minister of Justice of

the Slovak Republic."

(Original)

"Tvrdosti, ktoré sa vyskytnú pri vykonávaní tohto zákona, môze

odstránit v rozsahu svojej pôsobnosti minister práce, sociálnych

vecí a rodiny Slovenskej republiky, minister obrany Slovenskej

republiky, minister vnútra Slovenskej republiky a minister

spravodlivosti Slovenskej republiky."

By an instruction of 23 April 1992 the Minister of Labour and

Social Affairs vested her power to grant relief from hardship under

Section 176 in the social security authorities.

Section 248 para. 2 (i) of the Code of Civil Procedure provides

as follows:

(Translation)

"Furthermore, the courts shall not review decisions concerning

requests for benefits to which there is no entitlement or

requests for relief from hardship, ..."

(Original)

"Súdy dalej nepreskúmavajú rozhodnutia o ziadostiach na plnenie,

na ktoré nie je nárok, alebo o ziadostiach o odstránenie tvrdosti

zákona, ..."

COMPLAINTS

The applicant complains that there was no fair and public hearing

before an independent and impartial tribunal as regards her claim for

relief from hardship. She alleges a violation of Articles 6 para. 1 and

13 of the Convention.

The applicant also complains that her claim for relief from

hardship was rejected and alleges a violation of several provisions of

the Constitution of the Slovak Republic and of the Convention on the

Rights of the Child.

THE LAW

1. The applicant complains that there was no fair and public hearing

before an independent and impartial tribunal as regards her claim for

relief from hardship under Section 174 of the Social Security Act. She

alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention

which provides, insofar as relevant, as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law..."

The Commission recalls that Article 6 para. 1 (Art. 6-1) extends

under its civil head only to "contestations" (disputes) over "civil

rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law; it does not in itself

guarantee any particular content for "civil rights and obligations" in

the substantive law of the Contracting States (see Eur. Court HR, Pudas

v. Sweden judgment of 27 October 1987, Series A no. 125-A, para. 30,

p. 13).

The Commission further recalls that the European Court of Human

Rights has held that Article 6 para. 1 (Art. 6-1) of the Convention

applies, in principle, in the field of social insurance and welfare

assistance when the person concerned claims an individual, economic

right flowing from specific statutory rules. However, the situation is

different when the person concerned was affected in his or her

relations with the administrative authorities in matters involving the

exercise of their discretionary powers (cf. Eur. Court HR, Salesi v.

Italy judgment of 26 February 1993, Series A no. 257-E, p. 59, para.

19).

In the present case the relevant Slovak law, as in force at the

relevant period, excluded that persons receiving a partial disability

pension be granted an education allowance in respect of their children.

The applicant considered that the impossibility of having an education

allowance paid in addition to her partial disability pension entailed

hardship for her and claimed relief pursuant to Section 174 of the

Social Security Act.

Section 174 of the Social Security Act empowered the Minister of

Labour, Social Affairs and Family to grant relief from hardship in

matters within his or her competence. The Minister delegated this power

to the social security authorities. Section 174 did not lay down any

binding requirements or obligations for a claim for relief from

hardship to be granted, nor did it confer any entitlement in this

respect. In fact, the question whether the applicant's request for

relief could be granted was wholly dependent on whether the Slovak

Social Security Administration accepted it.

In these circumstances, the Commission considers that the

determination of the applicant's claim for education allowance and a

supplement thereto under Section 174 of the Social Security Act, to

which she had no formal entitlement under Slovak law, was within the

discretionary power of the administrative authorities. The right

claimed by the applicant cannot, therefore, be considered as a civil

right within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. Consequently, Article 6 para. 1 (Art. 6-1) does not apply

in the present case.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains that she has had no effective

remedy before a national authority as regards the alleged violation of

her rights under Article 6 (Art. 6) of the Convention. She alleges a

violation of Article 13 (Art. 13) of the Convention which provides as

follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner judgment of 21 February 1990,

Series A no. 172, p. 14, para. 31, with further references). However,

in the present case the Commission has rejected the applicant's

complaint under Article 6 (Art. 6) of the Convention as being

incompatible ratione materiae with the provisions of the Convention.

For similar reasons, it cannot be regarded as "arguable".

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. To the extent that the applicant alleges a violation of several

provisions of the Constitution of the Slovak Republic and of the

Convention on the Rights of the Child in that her claim for relief from

hardship was rejected, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the European

Convention on Human Rights. However, the latter does not guarantee a

right to obtain relief in cases of hardship.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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MACHATOVÁ v. THE SLOVAK REPUBLIC

MACHATOVÁ v. THE SLOVAK REPUBLIC

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