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E. V. v. AUSTRIA

Doc ref: 11782/85 • ECHR ID: 001-407

Document date: July 16, 1987

Inbound citations: 1
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Cited paragraphs: 0
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E. V. v. AUSTRIA

Doc ref: 11782/85 • ECHR ID: 001-407

Document date: July 16, 1987

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 11782/85

by E.V.

against Austria

The European Commission of Human Rights sitting in private

on 16 July 1987 the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms ;

Having regard to the application introduced on 29 April 1985

by E.V. against Austria and registered on 26 September 1985

under file N° 11782/85;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in Budapest in 1909, is a stateless person

without profession. He was originally represented before the

Commission by Dr. H. Schmiedt, a lawyer practising in Vienna, who

introduced the application on the applicant's behalf. The applicant

later withdrew the power of attorney.

The applicant, who is living in Austria since 1947, was

recognised as a refugee in 1949. In December of the same year he

acquired Austrian nationality of which he was, however, eventually

deprived in 1953 on the ground of having made false statements when

applying for it. Thereafter the Austrian authorities considered him as

a stateless person or as a person of unknown nationality.

In 1954 the applicant was expelled from Austria, but

apparently this order has never been executed.

The applicant has lodged five previous applications (Nos.

470/59, 666/59, 1334/62, 2066/63, and 5879/72) which were all declared

inadmissible. The present application concerns matters not raised in

the previous applications.

By letter of 19 April 1985, addressed to the applicant's

lawyer, the Municipal Council (Magistrat) of the City of Vienna

informed the applicant of its intention not to grant him social

assistance benefits (Sozialhilfeleistungen) in view of his expulsion.

COMPLAINTS

The applicant originally complained of the Municipal Council's

refusal to grant him social assistance benefits which he considered as

inhuman treatment contrary to Article 3 of the Convention.

The applicant also complained at a later stage, without

invoking any particular provision of the Convention, that the Austrian

authorities did not recognise him as a refugee. According to the

applicant he would be entitled to social benefits if he was so

recognised.

THE LAW

1. The applicant has complained under Article 3 (Art. 3) of the Convention

that he was not granted social assistance benefits.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case the applicant has not shown that he made a

formal request for social assistance benefits to the competent

authority or that he took his case to the competent courts after

having received the Municipal Council's letter of 19 April 1985.

The Commission does not find it necessary to determine whether

this letter is considered as a formal decision (Bescheid) under

Austrian law. If this was the case, it would have been subject to

judicial control by the Administrative Court (Verwaltungsgerichtshof)

in accordance with Article 131 of the Federal Constitution (Bundes-

Verfassungsgesetz) and by the Constitutional Court (Verfassungs-

gerichtshof) in accordance with Article 144 of the Federal

Constitution. On the other hand, if the letter was not regarded as a

decision, it would have been possible for the applicant to institute

proceedings before the Administrative Court for failure to act

(Säumnisbeschwerde) in accordance with Article 132 of the Federal

Constitution. However, the applicant did not institute any such

proceedings. He has not therefore exhausted the remedies available to

him under Austrian law. Moreover, an examination of the case as it

has been submitted does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at his disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27, para. 3

(Art. 27-3) of the Convention.

2. The applicant has also complained that the Austrian

authorities did not recognise him as a refugee.

According to Article 25 para. 1 (Art. 25-1) of the Convention the

Commission may only receive applications from persons claiming to be

the victim of a violation of one of the rights set out in the

Convention. However, no right to be recognised as a refugee or to be

granted asylum is as such included among the rights and freedoms

guaranteed by the Convention.

It follows that in this respect the application is incompatible

ratione materiae with the provisions of the Convention within the

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)

LEXI

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