Equal treatment of nations and non-nationals in Austria

Country: Austria
Body: European Court of Human Rights
Case: Gaygusuz v. Austria
Case number: Application No. 17371/90
Year of judgement: 1996
PDF of decision

The verdict in Gaygusuz versus Austria established an important case law regarding the equal treatment of nationals and non-nationals. Gaygusuz, a Turkish national, had come to Austria in 1973 and worked for almost a decade with some gaps when he went back to Turkey. He later applied for emergency assistance in the form of advance pension according to the Unemployment Insurance Act on account of his failing health (his unemployment benefits had been exhausted). However, the application was rejected, citing his Turkish nationality. After going through the Upper Austrian Regional Labour Office, Constitutional Court and Administrative Court, he decided to submit his petition at the European Court of Human Rights. The Court unanimously found that the denial of social security benefit solely on the basis of a different nationality was a violation of Article 14 of the European Convention on Human Rights and Article 1 of Protocol 1 guaranteeing the right to enjoy possessions.
The principle of equality and non-discrimination were thus upheld in the case, which pointed out that nationality cannot be made a grounds for discrimination. This is consistent with several other international human rights standards which also prohibit discrimination on the basis of nationality. General Comment 19 (para 31) of the International Covenant on Economic, Social and Cultural Rights especially states that whereas everyone has the right to social security, States Parties should give special attention to those individuals and groups who traditionally face difficulties in exercising this right, which includes non-nationals, among others. The Gaygusuz versus Austria case set a precedent in demonstrating that a person’s foreign nationality is not sufficient reason for denying the right to social security.

Social Protection and Human Rights