SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48628/99
by Denho AY and Besne AY-AKGUEL
against Switzerland
The European Court of Human Rights (Second Section), sitting on 27 September 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrL. Wildhaber,
MrP. Lorenzen,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 23 March 1999 and registered on 7 June 1999,
Having deliberated, decides as follows:
THE FACTS
The applicants, Denho Ay and Besne Ay-Akguel, a married couple born in 1931 and 1939, respectively, are Turkish citizens residing in Uzwil in Switzerland. Before the Court they are represented by Mr Klaus Rüst, a legal advisor practising in St. Gallen.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants entered Switzerland in 1988 together with their three children and applied for asylum.
The first applicant and two of the applicants’ children commenced work, whereupon, based on Section 21a of the Asylum Act (Asylgesetz) in force at the time, they were each obliged to pay, as a surety (Sicherheit) for welfare benefits obtained, 10% of their salary to a special closed account of the Federal Office for Refugees (Bundesamt für Flüchtlinge; henceforth Federal Office).
On 5 April 1993 the Federal Office refused the applicants’ request for asylum, though they were permitted provisionally to remain in Switzerland. Upon the applicants’ appeal, the Swiss Asylum Appeals Commission (Asylrekurskommission) ordered the Federal Office on 27 May 1994 to accept the applicants as refugees and to grant them asylum. This, the Federal Office did on 18 July 1994.
On 17 March 1994 the Federal Office prepared a final balance (Abrechnung) of the three closed accounts of the applicants and their two children. The Federal Office considered that the amounts of the three accounts totalled 6,986.90 Swiss francs (CHF), whereas the applicants had obtained welfare benefits in the amount of CHF 10,800. As a result, it informed the applicants that no money could be paid back from the account, though they would only be requested to compensate the outstanding amount of CHF 3,813.10 within the limits of the former Section 40 § 2 of the Asylum Act in force at the time.
On 4 May 1995 the applicants filed an appeal with the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement, henceforth Federal Department). Therein, and in subsequent submissions, the applicants requested the Federal Office to pay them back the entire amount of the closed surety account. They claimed that their recognition as refugees was declaratory and hence had retroactive character. Thus, their status as refugees extended back to the moment when they entered Switzerland. The law only required a surety from asylum seekers, i.e. persons applying for the status of refugee, but not from refugees themselves. As the applicants had had refugee status from the outset, the amounts on the surety account should be paid out to them. The applicants also complained, inter alia, of procedural errors and that they had been discriminated against as foreigners.
On 22 August 1995 the Federal Office prepared a new, amended balance of the three closed accounts of the applicants. It considered that the applicants’ children had, at the relevant time, not yet been of age for which reason they were not obliged to pay back the welfare benefits obtained, and they would receive the amounts paid into their closed accounts. In respect of the first applicant, the Federal Office considered that his account contained CHF 5,023.40 and that, after deduction of welfare benefits amounting to CHF 7,200, there remained a negative balance of CHF 2,176.60. The applicants would not, however, be obliged to pay back this amount according to Section 40 § 2 of the Asylum Act.
On 20 September 1995 the Federal Office confirmed that the remaining debt (Restschuld) for the applicants arising from the welfare benefits amounted to CHF 2,176.60, though this amount would not be collected as long as the applicants had no means and the payment appeared unreasonable.
The applicants’ appeal of 4 May 1995 was dismissed by the Federal Department on 19 November 1998. The decision noted that the applicants were contesting, not a particular amount, but the obligation in principle to pay back the welfare benefits out of the closed account, alleging that their recognition as refugees had retroactive effect. However, the rights under the Asylum Act only applied upon recognition of a person as a refugee. The specific obligation for persons applying for asylum to provide for a surety was not affected by the subsequent decision to award refugee status to a person. The decision continued:
“(I)t must be emphasised that the lower authority was entitled, regardless of whether the status of asylum was granted, to deduct from the [first] applicant’s surety account a global sum in respect of the welfare benefits obtained both by him and his wife during the asylum proceedings. It will not depend on the applicants’ economic situation whether or not it is admissible to deduct this amount. For this reason, the lower authority did not have to undertake any investigations in this respect. The applicants have not proved lower welfare expenses and indeed do not contest the amounts to be deducted. As a result, the contested decision is lawful and the complaint must be dismissed ...”
B. Relevant domestic law and practice
The Asylum Act in force at the relevant time provided in Sections 20a § 1 and 37 that both refugees and persons applying for such a status, were entitled to welfare benefits if they could not afford to pay for their own subsistence. According to Section 40 § 2:
“if the recipient of welfare benefits subsequently obtains means which secure to him and his family an adequate subsistence, he will have to pay back the benefits to the extent that this is reasonable.”
Section 21a §1 specifically concerned persons applying for the status of refugee. These persons were obliged, in addition, to provide a surety for future welfare costs. The percentage of the person’s salary to be paid would be decided by the competent cantonal authority.
In practice, a surety bank account was opened, and the employer of the person concerned would directly transfer the contributions to this account.
In respect of the closing of the account, Section 41 of the Asylum Act Ordinance no. 2, Asylverordnung, in force at the time) provided as follows:
1. Once the asylum proceedings have been concluded and the applicant’s residence situation in Switzerland has been settled by means of a residence permit or a provisional stay, ... the Federal Office [for Refugees] shall order the transfer to the Confederation of the amounts to be paid back for social security and implementation.
2. The Office shall furthermore order the final balance (Schlussabrechnung) and the transfer of any credit to an account mentioned by the applicant. The final balance shall be transmitted to the applicant subject to § 3.
3. If the residence situation of an applicant, who is not a refugee, has been settled by means of a provisional stay, the surety account will remain open.”
COMPLAINTS
1. Under Article 1 of Protocol No. 1 the applicants complain that the authorities required them to pay back the welfare benefits obtained and thus refused to grant retroactive effect to their status as refugees.
2. Under Article 14 of the Convention the applicants complain of discrimination of political refugees in that migrant workers are treated differently.
3. The applicants complain under Article 6 § 1 of the Convention that they did not have access to a court which decided whether or not the amounts paid into the closed account should be deducted from the welfare benefits obtained. They submit that the forced savings of CHF 5,023.40 which the authorities deducted amounts to a “civil right” within the meaning of Article 6 § 1 of the Convention.
THE LAW
1. The applicants complain that they did not have access to a court. They invoke Article 6 § 1 of the Convention which states, insofar as relevant:
"1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] tribunal ...”
The Court must first examine whether this provision is applicable to the proceedings at issue. Article 6 § 1 of the Convention may be relied on by individuals who consider that an interference with the exercise of one of their civil rights is unlawful and complain that they have not had the possibility of submitting that claim to a court meeting the requirements of Article 6 § 1 (see the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, § 44). This right to a court extends only to “disputes” (“contestations” in the French text) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise (see the following judgments: Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, Series A no. 43, pp. 21-22, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, pp. 45-46, § 56; Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Le Calvez v. France, 29 July 1998, Reports 1998-V, p. 1899, § 56).
In the present case, the Court accepts that there existed a civil “right” recognised under Swiss law, namely the applicants’ property rights in respect of the amounts deducted from the first applicant’s salary by his employer and paid into the surety bank account.
There remains the question whether there was a “dispute” (contestation) within the meaning of Article 6 § 1 of the Convention. In this respect, the Court notes that the issue before the Federal Department of Justice and Police, leading to its decision of 19 November 1998, was, not the amounts at issue to be paid back, but whether the applicants’ status as refugees had retroactive effect. Thus, before the Federal Department the applicants claimed that, since their refugee status applied retroactively as from the beginning of their stay in Switzerland, and as refugees did not have to provide for a surety, they were not obliged to open a surety bank account and the entire money set aside had, therefore, to be paid out to them.
However, the Federal Department denied any such retroactive effect in its decision of the Federal Department of 19 November 1998. Indeed, the Court notes that Swiss law is unambiguous in this respect. Thus, Section 41 of the Asylum Act Ordinance excluded a retroactive effect in that it provided that, once a person had obtained refugee status and the concomitant residence permit, the amounts of the surety account would be transmitted to the Confederation which would prepare a final balance and compensate the amounts paid into the account with those incurred by means of Social welfare benefits obtained.
In the Court’s opinion, the applicable domestic law was clear in that it provided for no exception, and in particular not for the exceptions claimed by the applicants. There was, therefore, no room for a “dispute” between the applicants, as to their “rights”, on the one hand, and the Swiss Confederation, on the other.
It follows that Article 6 § 1 of the Convention is not applicable in the instant case. This part of the application is therefore inadmissible as being incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. Under Article 1 of Protocol No. 1 and under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 the applicants complain of the amount deducted for welfare benefits. However, Switzerland has not ratified Protocol No. 1. It follows that the remainder of the application is also inadmissible as being incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Erik Fribergh Christos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy