Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24656/94

by J. A.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, 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 9 November 1993

by J. A. against Austria and registered on 20 July 1994 under file

No. 24656/94;

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 facts of the case as they have been submitted by the

applicant may be summarised as follows.

The applicant, born in 1923, is a British national and resident

in New Malden, United Kingdom. In the proceedings before the

Commission he is represented by M. A.A. Lintl, a lawyer practising in

Vienna.

In 1928 the applicant's parents, both Jews, took residence in

Vienna. On 11 September 1939 the applicant's father was arrested by

the Vienna police authorities and he was deported to the concentration

camp in Buchenwald on 2 October 1939, where he died on 3 April 1940.

On 29 October 1941 the applicant's mother was deported to the

Litzmannstadt ghetto where she died on 24 February 1943.

On 27 January 1992 the applicant applied for compensation under

the Act on Compensation for Victims of National Socialist Persecution

(Opferfürsorgegesetz), as a case of hardship (Härteausgleich), in

respect of the detention of his parents under the National Socialist

persecution.

On 18 May 1992 the Federal Ministry for Labour and Social Affairs

(Bundesministerium für Arbeit und Soziales) decided that the

applicant's case was a case of hardship within the meaning of S. 15 a

of the Act on Compensation for Victims of National Socialist

Persecution and, pursuant to S. 13 of the Act, granted the applicant

an amount of AS 9,890 as compensation in respect of his parents'

detention.

In its decision, the Ministry noted that the applicant's first

compensation claim under the Act on Compensation for Victims of

National Socialist Persecution had been dismissed in 1967 on the ground

that the statutory conditions of a ten years' residence before March

1938 or Austrian nationality at that time, as required under S. 13 c

para. 3 (b) of the Act, had not been met. Following further

investigations, it could be established that the applicant's late

father had resided in Vienna between 10 May 1928 and 12 October 1939,

and his late mother between 14 December 1928 and 29 October 1941.

Having regard to the fact that the applicant's period of residence in

Austria prior to March 1938 was only just short of the required period

of ten years and that the applicant's late father had resided in

Austria for more than ten years, the Ministry decided that the

applicant had made out a case of hardship and that he should be granted

compensation in respect of the detention of both parents.

The Ministry, in accordance with S. 13 a paras. 5 and 6 of the

Act on Compensation for Victims of National Socialist Persecution,

calculated the amount of compensation on the basis of the length of

both parents' detention, as confirmed by the Arolsen International

Search Service (Internationaler Suchdienst). According to S. 13

para. 5, the amount of compensation for each month of detention was

AS 860, the applicant as survivor being granted half of this amount in

accordance S. 13 a para. 6.

The applicant, represented by counsel, lodged a complaint with

the Constitutional Court (Verfassungsgerichtshof) and the Austrian

Administrative Court (Verwaltungsgerichtshof).

On 17 March 1993 the Constitutional Court refused to admit the

applicant's complaint about in particular the lack of access to an

independent and impartial tribunal, the peaceful enjoyment of his

possessions and the equality of all citizens. The applicant personally

received the decision on 13 May 1993.

On 13 September 1993, in the course of the proceedings before the

Administrative Court, the Federal Ministry for Labour and Social

Affairs amended its decision of May 1992 so as to grant compensation

to the applicant in the amount of AS 10,750. The Ministry found that

the applicant's objections to the calculation of the compensation claim

on the basis of a total of 23 months detention were well-founded and

that two further months detention had to be taken into account.

On 25 November 1993 the Administrative Court discontinued the

applicant's appeal proceedings on the ground that the matter had been

resolved, following the amended decision of 13 September 1993 which had

granted in full the applicant's claims in the proceedings under the Act

on Compensation for Victims of National Socialist Persecution.

COMPLAINTS

1. The applicant complains that the Austrian Act on Compensation for

Victims of National Socialist Persecution only provides for

compensation in respect of detention as such and not with regard to

other damages due to the detention such as the death of the detainee.

He invokes Article 5 paras. 1 and 5 of the Convention.

2. As regards his complaints under Article 5, the applicant also

complains about discrimination contrary to Article 14 of the Convention

in that, unlike for the period of detention as such, there is no

compensation for other damages resulting from National Socialist

persecution.

3. The applicant complains under Article 6 para. 1 of the Convention

that his compensation claims under the Act on Compensation for Victims

of National Socialist Persecution were not decided by a civil tribunal

established by law and that he did not have a public hearing before the

Administrative Court.

THE LAW

1. The applicant complains under Article 5 paras. 1 and 5

(Art. 5-1, 5-5) of the Convention that the Austrian Act on Compensation

for Victims of National Socialist Persecution only provides for

compensation in respect of detention as such and not with regard to

other damages due to the detention such as the death of the detainee.

The Commission observes that the applicant's claims relate to the

persecution of his late parents under the National Socialist regime,

i.e. a period prior to 3 September 1953, the date of entry into force

of the Convention. However, the Convention only governs facts

subsequent to its entry into force for each Contracting Party.

Moreover, the Commission is not competent to examine complaints

relating to the refusal or denial of compensation claims based on facts

that occurred prior to the entry into force of the Convention. The

Convention does not grant a right to compensation in respect of such

events (Nos. 7655/76, 7656/76, 7657/76, Dec. 4.10.77, D.R. 12 p. 111).

Article 5 para. 5 (Art. 5-5) of the Convention only refers to a

deprivation of liberty in contravention of Article 5 paras. 1 to 4

(Art. 5-1, 5-4).

It follows that this part of the application is incompatible

ratione temporis and, as regards the question of compensation claims,

incompatible ratione materiae with the provisions of the Convention,

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

2. The applicant also complains of discriminatory treatment under

the Act on Compensation for Victims of National Socialist Persecution

in respect of damages going beyond the mere detention under the

National Socialist regime. He invokes Article 14, taken in conjunction

with Article 5 (Art. 14+5), of the Convention.

The Commission recalls that Article 14 (Art. 14) only concerns

discrimination in relation to rights and freedoms guaranteed by the

Convention and its Protocols. However, the Commission has just found

that the rights invoked by the applicant under Article 5 (Art. 5) fall

outside the scope of the Convention ratione temporis or ratione

materiae.

The applicant's complaint under Article 14 (Art. 14) is,

therefore, incompatible ratione materiae with the provisions of the

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

3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that his compensation claims under the Act on Compensation

for Victims of National Socialist Persecution were not decided by a

civil tribunal established by law and that he did not have a public

hearing before the Administrative Court.

Article 6 para. 1 (Art. 6-1) provides, as far 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."

This provision guarantees to everyone the right to submit any

dispute relating to their "civil rights and obligations" to a tribunal

meeting the requirements of Article 6 para. 1 (Art. 6-1) (cf. Eur.

Court H.R., Le Compte, Van Leuven and De Meyere judgment of

23 June 1981, p. 22, para. 50).

The Commission finds that to the extent that the applicant

regards the compensation as provided for under the Austrian Act on

Compensation for Victims of National Socialist Persecution as

insufficient in respect of the damages suffered by his late parents as

a consequence of their National Socialist persecution, his claims are

not recognised under the Austrian legislation. However, Article 6

para. 1 (Art. 6-1) only extends to "contestations" (disputes) over

(civil) "rights" which can be said, at least on arguable grounds, to

be recognised under domestic law (cf. Eur. Court H.R., Neves E Silva

judgment of 27 April 1989, Series A no. 153, p. 14, para. 37). As

regards his compensation claims going beyond the provisions of the

above Austrian legislation, the applicant cannot, therefore, rely on

Article 6 para. 1 (Art. 6-1).

The applicant further complains under Article 6 para. 1

(Art. 6-1) about the proceedings concerning his claims under SS. 13 and

15 a of the Act on Compensation for Victims of National Socialist

Persecution.

The Commission observes that the applicant did not meet all

statutory conditions under the relevant legislation, but claimed

compensation, as a case of hardship, in respect of his late parents'

detention under the National Socialist regime. The question arises

whether, having regard to the pecuniary nature of the applicant's

claims under the Act on Compensation for Victims of National Socialist

Persecution, a "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) was at issue (cf. Eur. Court H.R., Editions Périscope

judgment of 26 March 1992, Series A no. 234-B, p. 66, para. 40;

Beaumartin judgment of 24 November 1994, Series A no. 296-B, pp. 60-61,

para. 28; Masson and Van Zon judgment of 28 September 1995, paras. 50-

52, to be published in Series A no. 327; No. 10865/84, Dec. 12.5.86,

D.R. 47 p. 188). However, this question can be left open as the

complaint is in any event inadmissible for the following reasons.

Proceedings in the applicant's case were conducted by the Federal

Ministry for Labour and Social Affairs, the Constitutional Court and

the Austrian Administrative Court. Thus, the Ministry for Labour and

Social Affairs, in its decision of 18 May 1992, granted the applicant

an amount of AS 9,890 as compensation in respect of his parents'

detention. The applicant's complaint with the Constitutional Court

remained unsuccessful. In the course of his appeal proceedings before

the Administrative Court, the Ministry for Labour and Social Affairs,

in its decision of 13 September 1993, accepted in full the applicant's

objections as to the calculation of his compensation claim and amended

its earlier decision accordingly. Thereupon, the Administrative Court

discontinued the applicant's appeal proceedings on the ground that the

matter had been resolved.

The Commission considers that the decision taken by the Ministry

for Labour and Social Affairs on 13 September 1993 resolved any dispute

regarding the applicant's compensation claim under the Act on

Compensation for Victims of National Socialist Persecution.

Consequently, there was no issue requiring determination by a tribunal,

pursuant to Article 6 para. 1 (Art. 6-1). The Administrative Court's

decision only related to the procedural matter of discontinuing the

appeal proceedings. In these circumstances, there is no appearance of

a breach of Article 6 para. 1 (Art. 6-1).

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

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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J.A. v. AUSTRIA

J.A. v. AUSTRIA

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