CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)