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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GAYGUSUZ v. AUSTRIA - 17371/90 - Chamber Judgment  ECHR 36 (16 September 1996)
Cite as: (1997) 23 EHRR 364, (1997) 23 EHRR 365, 23 EHRR 364,  ECHR 36
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CASE OF GAYGUSUZ v. AUSTRIA
(Application no. 17371/90)
16 September 1996
In the case of Gaygusuz v. Austria,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court B, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr R. Macdonald,
Mr C. Russo,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 23 May and 31 August 1996,
Delivers the following judgment, which was adopted on the last-mentioned date:
The applicant's application bringing the case before the Court referred to Article 48 of the Convention (art. 48), as amended in respect of Austria by Protocol No. 9 (P9). The object of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 para. 1 and 8 of the Convention (art. 6-1, art. 8) and Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1).
On 29 January 1996 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.
There appeared before the Court:
(a) for the Austrian Government
Mr W. Okresek, Head of the International Affairs Division,
Constitutional Department, Federal Chancellery, Agent,
Mr R. Sauer, Federal Ministry of Labour and Social Affairs,
Mrs E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicant
Mr H. Blum, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Pellonpää, Mr Blum and Mr Okresek.
On 5 June 1996 the applicant and the Austrian Government sent the Registrar their replies to a question asked by the Court. At the Court's request they produced various documents on 26 June, 20 August and 30 August 1996. However, the Court refused to admit to the file, on the ground of their late submission, further observations by the applicant received at the registry on 29 July 1996.
AS TO THE FACTS
I. CIRCUMSTANCES OF THE CASE
From 1 July 1986 to 15 March 1987 he received an advance on his retirement pension in the form of unemployment benefit. When his entitlement expired he applied to the Linz Employment Agency (Arbeitsamt) on 6 July 1987 for an advance on his pension in the form of emergency assistance (Antrag auf Gewährung eines Pensionsvorschusses in Form der Notstandshilfe).
"The applicant alleged the breach of rights guaranteed by the Constitution in accordance with Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights, Article 5 of the Basic Law and Article 1 of Protocol No. 1 to the Convention (P1-1), and Article 8 of the Convention (art. 8). Regard being had to the Constitutional Court's established case-law relating to these rights, the application is so unpersuasive as to the existence of the alleged violations or the infringement of any other right guaranteed by the Constitution or the infringement of another right through the application of an unlawful general provision, that with regard to the alleged violations to be considered by the Constitutional Court it does not have sufficient prospects of success. In addition, the case is not excluded from the jurisdiction of the Administrative Court [Verwaltungsgerichtshof]."
II. RELEVANT DOMESTIC LAW
A. Substantive law
1. At the material time
"(1) Unemployed persons who have applied for an invalidity insurance benefit ... may receive an advance in the form of unemployment benefit or emergency assistance ... provided that, in addition to the capacity to work and availability for work, the other conditions for the award of the benefit concerned are satisfied ..."
"(1) Unemployed persons who have exhausted their entitlement to unemployment benefit or maternity leave may be granted emergency assistance, at their request.
(2) For a grant to be made, the unemployed person must
(a) possess Austrian nationality;
(b) be fit for work and available for work; and
(c) be in urgent need.
(3) The requirement of Austrian nationality is not applicable to persons who have been uninterruptedly resident in the present territory of the Republic of Austria since 1 January 1930, or to persons who were born after that date in the present territory of the Republic of Austria and have subsequently been uninterruptedly resident there.
(4) There is urgent need where the unemployed person is unable to provide for his essential needs.
(5) Emergency assistance cannot be granted unless the unemployed person applies for it within three years of exhausting entitlement to unemployment benefit or maternity leave."
"(1) If long-term labour-market conditions are favourable to specific categories of unemployed persons or in specific regions, the Federal Minister of Social Affairs may, after consulting the organisations representing employers and employees, exclude those categories or regions from entitlement to emergency assistance.
(2) The Federal Minister of Social Affairs may authorise the grant of emergency assistance to unemployed persons who are nationals of another State where that State has a benefit equivalent to Austrian emergency assistance which is payable to Austrian citizens in the same manner as to its own nationals.
(3) The Federal Minister of Social Affairs may, after consulting the organisations representing employers and employees, authorise the grant of emergency assistance to unemployed persons who do not have Austrian nationality and have not been granted assistance under paragraph 2, on condition that during the five years preceding the date of the application for emergency assistance they have been employed in Austria for not less than 156 weeks with compulsory payment of unemployment insurance contributions. In order to calculate this period of five years, no account shall be taken of periods when the person concerned was in receipt of unemployment benefit (or emergency assistance). Authorisation may be given for a specific period and in respect of specific categories of unemployed persons."
The amount of unemployment benefit is established in accordance with the recipient's income and it is financed partly from the unemployment insurance contributions every employee has to pay (section 1 of the Unemployment Insurance Act) and partly from various governmental sources.
2. After the material time
(3) There is urgent need where the unemployed person is unable to provide for his essential needs.
(4) Emergency assistance may not be granted unless the unemployed person applies for it within three years of exhausting entitlement to unemployment benefit or maternity leave. To this period shall be added periods of rest within the meaning of section 16 (1) and periods of self-employed work, paid employment not covered by unemployment insurance or training which has occupied a preponderant part of the unemployed person's time."
"... (3) The following categories of persons may claim emergency assistance under the same conditions as unemployed persons having Austrian nationality:
1. refugees within the meaning of Article 1 of the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951;
2. stateless persons within the meaning of Article 1 of the Convention relating to the Status of Stateless Persons, signed at New York on 28 September 1954;
3. persons born in the present territory of the Republic of Austria who have subsequently been normally resident there uninterruptedly;
4. persons who have been normally resident in the present territory of the Republic of Austria uninterruptedly since 1 January 1930;
5. foreign nationals, in so far as that is provided for in bilateral agreements or international treaties;
6. holders of exemption certificates or assimilated persons, within the meaning of paragraph 4;
7. displaced persons in possession of an identity document issued by an Austrian authority;
8. resettled persons from South Tyrol and the Val Canale [Südtiroler- und Canaltaler-Umsiedler].
(4) After exhaustion of entitlement to unemployment benefit or maternity leave, the following categories of persons shall be granted emergency assistance, for a period of 52 weeks, or special emergency assistance, for the period laid down in section 39(1):
1. persons who, at the time of their application for emergency assistance, can produce a valid exemption certificate, within the meaning of the Aliens' Employment Act, issued in the version in force at the time of issue;
2. persons who do not have Austrian nationality but who, at the time of their application for emergency assistance, nevertheless satisfy the conditions for an exemption certificate, and to whom such a certificate has not been issued on the sole ground that their occupation is not covered by the Aliens' Employment Act."
B. Procedural law
1. Proceedings in the Constitutional Court
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision [Beschluß] decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
Paragraph 3 of Article 144 is worded as follows:
"Where the Constitutional Court considers that the impugned administrative decision has not infringed a right within the meaning of paragraph 1 and the case is not excluded from the jurisdiction of the Administrative Court by Article 133, the Constitutional Court, at the applicant's request, must refer the application to the Administrative Court so that it may determine whether the impugned decision has infringed one of the applicant's other rights."
2. Proceedings in the Administrative Court
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2) (2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
By section 42 (2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction,
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
PROCEEDINGS BEFORE THE COMMISSION
FINAL SUBMISSIONS TO THE COURT
"1. to declare that Article 6 of the Convention (art. 6) does not apply to the present case;
2. to declare that Article 1 of Protocol No. 1 to the Convention (P1-1) does not apply;
3. to declare that Article 6 of the Convention (art. 6) has not been violated in the proceedings underlying the application;
4. to declare that Article 1 of Protocol No. 1 to the Convention in conjunction with Article 14 of the Convention (art. 14+P1-1) have not been violated".
"(a) to hold that the Linz Employment Agency's refusal ... to grant him emergency assistance under the Unemployment Insurance Act infringed his right ... to a fair hearing in civil proceedings (Article 6 para. 1 of the Convention) (art. 6-1), his right to respect for his private and family life (Article 8 of the Convention) (art. 8) and his right to the peaceful enjoyment of his possessions and non-discriminatory treatment (Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention) (art. 14+P1-1);
(b) to award him just satisfaction under Article 50 of the Convention (art. 50)".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 (art. 14+P1-1)
Article 14 of the Convention (art. 14)
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national ... origin ..."
Article 1 of Protocol No. 1 (P1-1)
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions (P1-1) shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
A. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1)
Entitlement to this social benefit is therefore linked to the payment of contributions to the unemployment insurance fund, which is a precondition for the payment of unemployment benefit (see paragraph 21 above). It follows that there is no entitlement to emergency assistance where such contributions have not been made.
Accordingly, as the applicant was denied emergency assistance on a ground of distinction covered by Article 14 (art. 14), namely his nationality, that provision (art. 14) is also applicable (see, among other authorities, mutatis mutandis, the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, para. 40, and the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, para. 30).
B. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1)
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."
III. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."
A. Pecuniary damage
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT
1. Holds unanimously that Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1) is applicable in the case;
2. Holds unanimously that there has been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1);
3. Holds unanimously that it is not necessary to consider the case under Article 6 para. 1 of the Convention (art. 6-1);
4. Holds unanimously that no separate issue arises under Article 8 of the Convention (art. 8);
5. Holds by eight votes to one that the respondent State is to pay the applicant, within three months, 200,000 (two hundred thousand) Austrian schillings for pecuniary damage;
6. Holds unanimously that the respondent State is to pay the applicant, within three months, 100,000 (one hundred thousand) Austrian schillings in respect of costs and expenses;
7. Holds unanimously that simple interest at an annual rate of 4% shall be payable from the expiry of the above-mentioned three months until settlement;
8. Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 September 1996.
In accordance with Article 51 para. 2 of the Convention (art. 51-2) and Rule 55 para. 2 of Rules of Court B, the partly dissenting opinion of Mr Matscher is annexed to this judgment.
PARTIALLY DISSENTING OPINION OF JUDGE MATSCHER
I do not usually express dissenting opinions with regard to the Court's decisions on Article 50 (art. 50), in view of the fact that the sums which the Court awards under that provision (art. 50) on an equitable basis can always be the subject of disagreement. The reason why I have done so in the present case is that the Court's decision to award the applicant ATS 200,000 for pecuniary damage is clearly unsustainable.
Where the Court finds a violation of the Convention and the violation in question causes the victim pecuniary damage, it has the power under Article 50 (art. 50) to award just satisfaction. Although it is hardly ever possible to assess the amount of such damage precisely - which is not in any case the Court's task - the sum awarded for pecuniary damage must never exceed the amount of damage that the applicant can actually have sustained.
In the present case the Court found a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1) (a finding which I am in complete agreement with) on account of the fact that the applicant, because of his nationality, was not entitled to emergency assistance under the legislation in force. But emergency assistance, as the term clearly implies, is not a pension for life, but a temporary social measure for a period when the beneficiary is available for work but unemployed and not (yet) entitled to an invalidity or old-age pension.
As a result of the finding of a violation of the Convention, the applicant is entitled to be compensated on an equitable basis under Article 50 of the Convention (art. 50) for any pecuniary damage he may have sustained.
Under the law in force at the material time, emergency assistance amounted (with varying supplements) to approximately ATS 255 per day. It appears from the file that, however the sums are calculated, and accepting the hypotheses most favourable to the applicant (unrealistic though they are), the maximum amount he could have received in emergency assistance was about ATS 80,000. The sum of ATS 200,000 which the Court has awarded him is more than twice as high as the pecuniary damage he can possibly have sustained; that is manifestly contrary to all the principles governing compensation for pecuniary damage, unless the Court wishes to adopt the practice which exists in American law of awarding "punitive damages". That practice is rightly not provided for in European law.
The calculation and compensation claims put forward by the applicant's lawyer and the Turkish Government are so fantastic that it is superfluous to comment on them.
The background to the whole case is a typical instance of abuse of the Welfare State, a very widespread trend in all our societies and one - I would point out - by no means limited to foreign workers.
It is regrettable that the Court, by awarding disproportionate amounts of compensation, should reinforce this trend.
 The case is numbered 39/1995/545/631. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
 Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).
 For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-IV), but a copy of the Commission's report is obtainable from the registry.