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C.G. v. AUSTRIAOPINION OF Mrs. J. LIDDY

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Document date: January 11, 1995

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C.G. v. AUSTRIAOPINION OF Mrs. J. LIDDY

Doc ref: • ECHR ID:

Document date: January 11, 1995

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OPINION OF Mrs. J. LIDDY

With hesitation I voted for a finding of violation of Article 6

in this case.

The majority are of the view that an allegation that the

legislation at issue conflicted with the constitutional guarantee of

the right to property is not, in itself, sufficient to constitute a

"right" in domestic law. This is because the successful invocation of

the constitutional right would only have resulted in the quashing of

the relevant legislative provision.

While I see the force in the latter argument, this seems to me

to relate more to whether the proceedings would have been "decisive"

for the determination of the applicant's right, rather than whether

there was a "right" in domestic law to begin with. It appears to me

inconceivable that the quashing of such a provision would not result

in the legislature taking fresh action to remedy a situation which, in

the eyes of the Constitutional Court, infringed a fundamental right of

an individual. On the facts of the present case, the position is even

clearer. Section 33(2)(a) of the Unemployment Insurance Act, which

provides for the nationality condition, is clearly severable and the

offending words could have been deleted by the Constitutional Court,

without any lacuna in the law calling for legislative action. The

Constitutional Court could then have remitted the case to the

administrative appeal authority in order for a decision to be made on

the basis of the law as it stood in the light of the deletion, and the

applicant would then have obtained a decision on the facts of his own

case. Accordingly, a challenge to the constitutionality of the law

would have been decisive for the applicant's rights.

Moreover, the right in issue was "civil": the Commission has

accepted the applicability of Article 1 of Protocol No. 1. The right

was of a pecuniary nature. It is true that emergency payments under

the ALVG have public-law characteristics, but as pointed out by the

applicant, they are inextricably linked to the fact that the recipient

had a contract of employment. I note in this connection that the

amount of an emergency payment is assessed by reference to the

individual's entitlement to unemployment benefit, which is earnings-

related and funded partly from contributions.

The applicant was unable to obtain a hearing of his case before

the Constitutional Court, which declined to deal with the case. The

Administrative Court was not competent to deal with his complaint.

Accordingly, there was no fair hearing before an independent and

impartial tribunal.

For these reasons I voted in the sense indicated.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

17 May 1990 Introduction of application

29 October 1990 Registration of application

Examination of admissibility

2 September 1992 Commission's decision (First Chamber) to

communicate the case to the respondent

Government and to invite the parties to submit

observations on admissibility and merits

19 November 1992 Government's observations

8 January 1993 Applicant's observations in reply

11 January 1994 Commission's decision to declare the application

admissible

Examination of the merits

28 January 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit further

observations on the merits

2 March 1994 Applicant's observations

7 April 1994 Government's observations

27 April 1994 Government's further observations

8 July 1994 Applicant's further observations

17 May 1994 Commission's consideration of the state of

proceedings

18 October 1994 Commission's consideration of the state of

proceedings

11 January 1995 Commission's deliberations on the merits, final

vote and consideration of text of the Report and

adoption of Report

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