Gaygusuz v Austria: ECHR 16 Sep 1996

The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was available under the material Austrian legislation, but one of the conditions was that the applicant should ‘possess Austrian nationality’, and so the applicant was refused.
Held: Article 14 taken with Article 1P applied to the case and had been violated. ’36. According to the court’s established case law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within one or more of them. 37. The applicant and the Turkish Government argued that Article 14 of the Convention was applicable in conjunction with Article 1 of Protocol No. 1. They referred to the reasoning of the Commission, which found that the award of emergency assistance was linked to the payment of contributions to the unemployment insurance fund. 38. The Austrian Government, however, submitted that emergency assistance did not come within the scope of Article 1 of Protocol No. 1. Entitlement thereto did not result automatically from the payment of contributions to the unemployment insurance fund. It was an emergency payment granted by the State to people in need. Consequently, Article 14 of the Convention was not applicable either. 39. The Court notes that at the material time emergency assistance was granted to persons who had exhausted their entitlement to unemployment benefit and satisfied the other statutory conditions laid down in . . the . . Act. 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. It follows that there is no entitlement to emergency assistance where such contributions have not been made. 40. In the instant case it has not been argued that the applicant did not satisfy that condition; the refusal to grant him emergency assistance was based exclusively on the finding that he did not have Austrian nationality and did not fall into any of the categories exempted from that condition. 41. The Court considers that the right to emergency assistance – in so far as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No. 1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay ‘taxes or other contributions’. Accordingly, as the applicant was denied emergency assistance on a ground of distinction covered by Article 14, namely his nationality, that provision is also applicable.’

17371/90, (1996) 23 EHRR 364, [1996] ECHR 36
Worldlii, Bailii
European Convention on Human Rights 14 1P
Human Rights
AppliedMuller v Austria ECHR 1975
Article 1 does not guarantee a right to a pension of any particular amount, but that the right safeguarded by Article 1 consists, at most, ‘in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund.’ A claim . .

Cited by:
CitedCarson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
DistinguishedMorris, Regina (on the Application of) v Westminster City Council and Another Admn 7-Oct-2004
The applicant questioned the compatibility of s185 of the 1996 Act with Human Rights law. The family sought emergency housing. The child of the family, found to be in priority housing need, was subject also to immigration control. Though the matter . .
CitedKhan v Royal Air Force Summary Appeal Court Admn 7-Oct-2004
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was . .
CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedCarson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
CitedBarclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Benefits

Updated: 05 January 2022; Ref: scu.165431