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)