Resolution DH (98) 372

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 16 SEPTEMBER 1996 IN THE CASE OF GAYGUSUZ AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 12 November 1998 at the 647 th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgment of the European Court of Human Rights in the Gaygusuz case delivered on 16 September 1996 and transmitted the same day to the Committee of Ministers ;

Recalling that the case originated in an application (No. 17371/90) against Austria, lodged with the European Commission of Human Rights on 17 May 1990 under Article 25 of the Convention by Mr Cevat Gaygusuz, a Turkish national, and that the Commission declared admissible the complaints based on Article 6, paragraph 1, 8 and 14 of the Convention and on Article 1 of Protocol No. 1 in regard to the Austrian authorities' refusal to grant emergency assistance to the applicant, an unemployed man who had exhausted entitlement to unemployment benefit, on the ground that he did not have Austrian nationality;

Recalling that the case was brought before the Court by the applicant on 20 April 1995 in accordance with Article 48 of the Convention as amended in respect of Austria by Protocol No. 9 and that the Court's Screening Panel decided on 5 September 1995 to submit the examination of this case to the Court;

Whereas in its judgment of 16 September 1996, the Court:

- held, unanimously, that Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1 was applicable in the case;

- held, unanimously, that there had been a violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1;

- held, unanimously, that it was not necessary to consider the case under Article 6, paragraph 1, of the Convention;

- held, unanimously, that no separate issue arose under Article 8 of the Convention;

- held, by eight votes to one, that the Government of Austria was to pay the applicant, within three months, 200 000 Austrian schillings in respect of pecuniary damage;

- held, unanimously, that the Government of Austria was to pay the applicant, within three months, 100 000 Austrian schillings in respect of costs and expenses;

- held, unanimously, that simple interest at an annual rate of 4 % should be payable on these sums from the expiry of the above-mentioned three months until settlement;

- dismissed, unanimously, the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the Government of Austria to inform it of the measures which had been taken in consequence of the judgment of 16 September 1996, having regard to Austria's obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present case; this information appears in the appendix to this resolution;

Noting with satisfaction the decision of the Austrian Constitutional Court to accelerate the entry into force of the new legislation;

Having satisfied itself that, on 27 September 1996, i.e. within the time-limit set, the Government of Austria paid the applicant the sums provided for in the judgment of 16 September 1996,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 372

Information provided by the Government of Austria

during the examination of the Gaygusuz case

by the Committee of Ministers

On 14 July 1997, the Austrian Parliament adopted a new law (BGBl I Nr 78/1997) modifying the text of Articles 33 and 34 of the Unemployment Insurance Act of 1977 ( Arbeitslosenversicherungsgesetz ) by taking away the requirement of Austrian nationality as a prerequisite for obtaining emergency assistance, the old provisions were remaining in force until the new law entered into force on 1 January 2000.

However, on 11 March 1998, the Austrian Constitutional Court, which was seized with several complaints regarding the constitutionality of the discrimination against foreigners provided for in Articles 33 and 34 of the Unemployment Insurance Act, changed its earlier jurisprudence according to which benefits such as the emergency assistance should not fall under Article 1 of Protocol No 1 of the Convention, and aligned it on that of the European Court of Human Rights in the Gaygasuz case. In consequence hereof the Austrian Constitutional Court annulled with immediate effect the two provisions in question insofar as they reserved the right to emergency assistance to Austrian nationals. It did find it appropriate in the circumstances to deviate from its usual practice of postponing the full effects of its judgment to a future date.

Immediately after this judgment, the Austrian Parliament adopted a new law providing that the amendments to the Unemployment Insurance Act entered into force on 1 April 1998 and not on 1 January 2000.

Moreover, the judgment of the European Court of Human Rights was published in a number of Austrian law journals, notably Österreichische Juristen Zeitung , 1996, p. 955 et seq.; Juristische Blätter , June 1997, p. 364 et seq..

The Government of Austria considers that the measures adopted will prevent new violations of the same kind as that found in the present judgment and that Austria has, accordingly, complied with its obligations under Article 53 of the Convention in this respect .