Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17371/90

by C. G.

against Austria

The European Commission of Human Rights (First Chamber) sitting in

private on 11 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 17 May 1990 by C. G.

gainst Austria and registered on 29 October 1990 under file No. 17371/90;

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

Procedure of the Commission;

Having regard to :

- the Commission's decision of 2 September 1992 to communicate the

application;

- the observations submitted by the respondent Government on

19 November 1992 and the observations in reply submitted by the

applicant on 8 January 1993 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen. He lives in Hörsching and is

represented before the Commission by Mr. H. Blum, a lawyer practising in

Linz.

The particular facts of the case

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

summarised as follows.

The applicant applied for an advance on his pension by way of

emergency payment under the Unemployment Insurance Act (Arbeitslosen-

versicherungsgesetz - ALVG).

The application was refused by the Linz Labour Office (Arbeitsamt)

and the Upper Austrian Regional Labour Office (Landsarbeitsamt) because

the applicant failed to fulfil the requirement of Section 33 para. 2 (a)

of the ALVG that only Austrian citizens qualify for such payments.

The applicant made a complaint to the Constitutional Court

(Verfassungsgerichtshof) which, on 26 February 1988, declined to deal

with the case. It found, by reference to its case-law, that the

application had no adequate prospect of success, and also found that it

was not excluded from the jurisdiction of the Administrative Court

(Verwaltungsgerichtshof) (Article 144 para. 2 of the Federal

Constitution). The Constitutional Court referred the case to the

Administrative Court.

As a result of the Administrative Court being seized of the case,

the applicant was requested to complete his application. He replied on

7 July 1988, referring to his right under the law to an advance on his

pension. He requested the Administrative Court to quash the decision of

the Upper Austrian Labour Office and to have the constitutionality of

Section 33 para. 2 (a) of the ALVG determined by the Constitutional

Court. On 19 September 1989 (received by the applicant's representative

on 20 November 1989) the Administrative Court rejected the complaint.

The Administrative Court referred to previous cases in which it had found

that complaints concerning the application of, inter alia,

unconstitutional laws fell to be decided by the Constitutional Court.

It considered that the applicant's complaint - namely that of the

requirement of Austrian citizenship for payment of an advance on pension

by way of emergency payment under the ALVG - was such a complaint.

Accordingly, the complaint fell outside the jurisdiction of the

Administrative Court and was duly rejected.

Relevant domestic law

Section 33 of the Unemployment Insurance Act provides, so far as

relevant, as follows:

[German]

"(1) Arbeitslosen, die den Anspruch auf Arbeitslosengeld ...

erschöpft haben, kann auf Antrag Notstandshilfe gewährt werden.

(2) Voraussetzung für die Gewährung der Notstandshilfe ist, daß der

Arbeitslose

a) die österreichische Staatsbürgerschaft besitzt ..."

[Translation]

"(1) An emergency payment can be made to any unemployed person who

is no longer entitled to claim unemployment benefit ..

(2) It is a precondition for the grant of an emergency payment that

the unemployed person

a) has Austrian nationality ..."

Emergency payments are assessed on the basis of need, but must not

exceed a fixed proportion of the unemployment benefit a person would

receive if still entitled to such benefit. Unemployment benefit is

earnings-related and is funded partly from contributions and partly from

various Government sources.

COMPLAINTS

The applicant complains that he was unable to receive an advance on

his pension by way of emergency payment under the ALVG for the sole

reason that he is not of Austrian nationality.

Under Article 6 of the Convention the applicant considers that a

claim to such an advance clearly relates to a "civil right" within the

meaning of Article 6 para. 1 of the Convention, in particular because the

payments are based largely on contributions. He considers that the fact

that non-Austrians are not eligible for emergency payments under Section

33 para. 2 (a) of the ALGV discriminates against him in a way which

violates his rights to a fair hearing in civil matters.

The applicant also sees a violation of Article 8 of the Convention

because necessary payments were not made to him in circumstances where

they would have been made to an Austrian. In the alternative, the

applicant sees a violation of Article 1 of Protocol No. 1 to the

Convention because of an unjustified interference with his property.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 May 1990 and registered on

29 October 1990.

On 2 September 1992 the Commission decided to communicate the

application to the respondent Government and to invite the parties to

submit observations on its admissibility and merits.

The respondent Government submitted their observations on

19 November 1992 and the applicant submitted his observations in reply

on 8 January 1993. On 5 March 1993 the Government submitted a

translation of their observations.

THE LAW

The applicant complains that he was unable to receive an advance on

his pension by way of emergency payment under the ALVG for the sole

reason that he is not of Austrian nationality. He alleges violation of

Articles 6, 8 and 14 (Art. 6, 8, 14) of the Convention, and of Article

1 of Protocol No. 1 (P1-1) to the Convention.

The Government emphasise the public-law characteristics of emergency

payments under the ALVG, in particular that emergency payments are based

on need rather than income, and that the various Government sources for

the payments indicate that the scheme is not managed as a private or

private-type scheme. They consider that Article 6 (Art. 6) was not at

all applicable to the proceedings at issue, but that if it was, then the

Constitutional Court in declining to deal with a case in fact has to form

a view as to its merits, such that the applicant had access to that

court. They also point out that the Administrative Court was bound to

state that it had no jurisdiction because of the nature of the

applicant's complaints, and consider that the Administrative Court's

decision should be disregarded, with the result that the applicant has

failed to comply with the six months time-limit in Article 26 (Art. 26)

of the Convention. The Government underline that the Constitutional and

Administrative Courts are part of the Austrian judicial system and the

judges are independent of the executive. As to the extent to which the

courts review facts, the Government point to the comprehensive

possibility to review which they say derives from Section 42 2 (a) - (c)

of the Administrative Court Act (Verwaltungsgerichtshofgesetz).

In connection with Article 1 of Protocol No. 1 (P1-1), the

Government point out that the applicant did not fall within the class of

persons eligible for an emergency payment under the legislation, so that

his unsuccessful, public-law claims could not give rise to a violation

of this provision. In connection with Article 14 (Art. 14) of the

Convention, the Government state that the legislature considered it

admissible to limit the benefit to Austrian citizens only, and that it

did so in the expectation that other states would look after the

emergency needs of their own citizens. The Government also refer to the

difficult financial situation.

The applicant maintains his complaints. He considers that Article

6 (Art. 6) does apply to the proceedings, that the Constitutional and

Administrative Courts did not fulfil the requirements of Article 6

(Art. 6) in this case, and that the refusal to grant him the emergency

payment violated Article 1 of Protocol No. 1 (P1-1) taken alone and,

given the lack of justification for the difference in treatment between

him and Austrians, in connection with Article 14 (P1-1+Art. 14) of the

Convention.

In connection with the Government's contention that the applicant

has failed to comply with the six months time limit set out in Article

26 (Art. 26) of the Convention, the Commission notes that it was the

Constitutional Court, and not the applicant, which remitted the case to

the Administrative Court. It also notes that, had the Constitutional

Court been of the opinion that the Administrative Court had no

jurisdiction to deal with the case, it could not have refused to deal

with the matter in the way it did.

In these circumstances, the Commission finds that the final decision

in the case is the decision of the Administrative Court of

19 September 1989 and that the applicant's representative received the

decision on 20 November 1989. As the applicant introduced his

application to the Commission on 17 May 1990, he cannot be said to have

failed to comply with the requirements of Article 26 (Art. 26) of the

Convention.

The Commission finds that the application raises complex issues of

law under the Convention, the examination of which must be reserved to

an examination of the merits.

The application cannot, therefore, be declared manifestly ill-

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

Convention. No other ground for declaring it inadmissible has been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE without prejudging the

merits

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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