CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.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. 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)