A., E., M. and H.P. v. Austria



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                         FIRST CHAMBER

                   Application No. 15506/89

                     A., E., M. and H. P.

                            against

                            Austria

                   REPORT OF THE COMMISSION

                  (adopted on 31 August 1994)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-10) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 11-15). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 16-48) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

     (paras. 49-69) . . . . . . . . . . . . . . . . . . . . .7

     A.   Complaint declared admissible

          (para. 49). . . . . . . . . . . . . . . . . . . . .7

     B.   Points at issue

          (para. 50). . . . . . . . . . . . . . . . . . . . .7

     C.   As regards Article 6 para. 1 of the Convention

          (paras. 51-59). . . . . . . . . . . . . . . . . . .7

          CONCLUSION

          (para. 60). . . . . . . . . . . . . . . . . . . . .8

     D.   As regards Article 1 of Protocol No. 1 to the

          Convention

          (paras. 61-68). . . . . . . . . . . . . . . . . . .9

          CONCLUSION

          (para. 69). . . . . . . . . . . . . . . . . . . . 10

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . 11

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

              ADMISSIBILITY OF THE APPLICATION. . . . . . . 12

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicants are Austrian citizens, born in Stegersbach and

resident in Stegersbach, Burgenland.  They were represented before the

Commission by Mr. Erich Proksch.

3.   The application is directed against Austria.  The respondent

Government were represented by Mr. F. Cede, Deputy Secretary General

and Legal Counsel of the Austrian Federal Ministry of Foreign Affairs.

4.   The case concerns agricultural land consolidation proceedings.

The proceedings are still pending and the applicants complain of their

length and the negative effect on their property situation.  They

invoke Article 6 para. 1 of the Convention and Article 1 of

Protocol No. 1 to the Convention.

B.   The proceedings

5.   The application was introduced on 4 July 1989 and registered on

15 September 1989.

6.   On 7 October 1991 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicants' complaints under Article 6 para. 1 of the

Convention and Article 1 Protocol No. 1 to the Convention.

7.   The Government's observations were submitted on 19 February 1992

after extension of the time-limit fixed for this purpose.  The

applicants replied on 25 March 1992.

8.   On 30 June 1993 the Commission declared the application

admissible without prejudging the merits of the complaint relating to

the length of the domestic proceedings and the complaint about the

alleged violation of the applicants' right to the peaceful enjoyment

of possessions.  It declared inadmissible the remainder of the

application.

9.   The text of the Commission's decision on admissibility was sent

to the parties on 12 August 1993 and they were invited to submit  a

proposal for a friendly settlement.

10.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

11.  The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present :

               MM.  A. WEITZEL, President

               C.L. ROZAKIS

               F. ERMACORA

               E. BUSUTTIL

               A.S. GÖZÜBÜYÜK

          Mrs. J. LIDDY

          MM.  M.P. PELLONPÄÄ

               B. MARXER

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               E. KONSTANTINOV

12.  The text of this Report was adopted on 31 August 1994 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13.  The purpose of the Report, pursuant to Article 31 of the

Convention, is :

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

14.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

16.  The applicants, Austrian citizens, own a farm at Stegersbach,

Burgenland.  They were initially represented by Mr. Erich Proksch, a

lawyer practising in Vienna but withdrew the power of attorney in the

course of the proceedings without appointing another counsel.

17.  The applicants' farm is involved in agricultural land

consolidation proceedings (Zusammenlegungsverfahren) under the

Agricultural Land Planning Act (Flurverfassungsgesetz) of Burgenland.

18.  The proceedings in question were ordered ex officio on

24 July 1961 by the Agricultural Authority of first instance

(Agrarbehörde 1. Instanz) established at the Provincial Government

(Landesregierung).  In a hearing on 2 March 1964 the committee

representing the parties in the proceedings (Ausschuß der Parteien) did

not raise any objections against the projected roads and drains.

However, on 5 March 1964 the applicants' parents, who owned the farm

at that time, raised objections against a road projected directly

behind their house and proposed to relocate it elsewhere.  The

operational director in the proceedings (Operationsleiter), however,

proposed to carry out the road project as planned.

19.  On 7 April 1964, the Agricultural Authority of first instance

determined the state of occupation of land (Besitzstand) and the

valuation schedule (Bewertungsplan). Between 28 April and 12 May 1964

all parties were given notice of the state of occupation and the

valuation schedule.

20.  On 19 May 1964 an "appeal" against the state of occupation of

land and the valuation schedule introduced by the applicants' parents

reached the Agricultural Authority of first instance. However, in this

"appeal" the applicants' parents raised only objections against the

above-mentioned road.  By letter of 30 June 1964 the Provincial Land

Reform Board (Landesagrarsenat) informed the applicants' parents that

their submissions did not constitute an appeal and would be dealt with

as a mere suggestion to the operational director.

21.  On 16 October 1964 the Agricultural Authority of first instance

ordered the provisional transfer of the compensatory parcels according

to the draft consolidation plan.

22.  On 15 September 1964, 13 October and 24 November 1965 and

22 April 1966 the applicants and their mother (the father had died in

the meantime) raised objections against the planning of a drain

alongside their compensatory parcels and a possible granting of a

building-permit on another party's compensatory parcel. The authority

informed the applicants that their objections could not be dealt with

before the consolidation plan was issued.

23.  On 24 August 1967 the Provincial Land Reform Board granted a

building-permit for a sawmill on the other party's compensatory parcel.

24.  Subsequently, the first and the fourth applicant lodged a

complaint against the decision of 16 October 1964 which had not been

communicated to them as the heirs before 19 October 1967 with the

Constitutional Court (Verfassungsgerichtshof).  On 26 June 1968 the

Constitutional Court dismissed the complaint and referred it to the

Administrative Court (Verwaltungsgerichtshof) which discontinued the

proceedings on 13 December 1968 as the applicants had not remedied

defects in the complaint.

25.  On 31 October 1969 the consolidation plan (Zusammenlegungs-Plan)

was issued.

26.  On 15 December 1969 the applicants and their mother appealed

against this decision, claiming inter alia that some of their parcels

had been included in the consolidation proceedings contrary to the law.

Moreover they claimed that the result of the proceedings was

incompatible with the requirements of the land reform legislation.

27.  On 12 March 1971 the Provincial Land Reform Board dismissed the

appeal.  This decision was confirmed by the Supreme Land Reform Board

(Oberster Agrarsenat) on 7 March 1973.

28.  On 19 March 1974 the Constitutional Court quashed the decision

of the Supreme Land Reform Board on the ground that it had not been

competent to decide on the appeal.  According to an amendment of the

relevant legislation the Provincial Land Reform Board's decision of

12 March 1971 had to be regarded as the final decision. The applicants

then lodged a complaint against the latter decision with the

Constitutional Court.

29.  On 4 December 1974 the Constitutional Court quashed the decision

of 12 March 1971 and the Provincial Land Reform Board was accordingly

required again to determine the applicant's appeal against the first

instance consolidation plan of 31 October 1969.

30.  On 8 April 1976 the Provincial Land Reform Board inspected the

land consolidation area.

31.  On 10 June 1976 the Provincial Land Reform Board quashed the

consolidation plan as far as the road was concerned and referred this

part of the case back to the authority of first instance.  The

remainder of the appeal was dismissed on the ground that the value of

the compensatory parcels corresponded to the value of the applicants'

former parcels.  With regard to their original parcels, which in their

view were possible future building plots, the Land Reform Board found

that these parcels did not directly border on a built-up area.  The

fact that later on a building permit had been granted for these parcels

to another party did not turn them into land of particular value, as

the valuation of the parcels had been finally decided.  In any event,

the authority considered that the applicants had received land of the

same value.

32.  On 5 March 1979 the Constitutional Court dismissed the

applicants' complaint and referred it to the Administrative Court.

33.  On 30 October 1979 the Administrative Court quashed the

Provincial Land Reform Board's decision of 10 June 1976 holding that

the reasoning of the Board concerning the valuation of the parcels in

question had been based on an error of law.  The Administrative Court

found that notwithstanding the initial valuation in 1964 the authority

would have been legally obliged to assess the value of the parcels on

the basis of their market value (Verkehrswert) at a later stage of the

proceedings. As parts of the parcels had in fact been designated as a

"development area for industrial buildings" (Aufschließungsgebiet für

Industriebauten) during the land consolidation proceedings, the

Administrative Court found the qualification of these parcels as

possible building plots to be reasonable. Moreover it denied that the

applicants had obtained a compensatory parcel of the same value.

34.  On 22 April 1980 the Provincial Land Reform Board also referred

to the authority of first instance the remainder of the case which it

had not already referred back by its decision of 10 June 1976.

35.  On 15 November 1982 the Agricultural Authority of first instance

decided that a road should be constructed across two of the applicants'

parcels and be transferred to the public property. The authority

allotted a number of compensatory parcels to the applicants and granted

them a certain amount of financial compensation.

36.  On 13 June 1983 the Provincial Land Reform Board dismissed the

applicants' appeal.  The applicants lodged a complaint with the

Constitutional Court.

37.  On 22 November 1985 the Constitutional Court refused to deal with

the complaint and referred it to the Administrative Court.

38.  On 8 November 1988 the Administrative Court quashed the decision

as far as it concerned the compensation of the applicants and dismissed

the remainder of the complaint.  The matter was referred back.

39.  On 1 June 1989 the Provincial Land Reform Board quashed the

decision of the agricultural authority of first instance dated

15 November 1982,  and further referred the case back to this first

instance. It observed that it could not decide on the merits itself

because an oral hearing - which must be held before the first instance

- appeared unavoidable.

40.  The Agricultural Authority of first instance made some proposals

which the applicants did not accept, but it did not take a decision

before 28 December 1990, after the applicants had made an application

for transfer of jurisdiction to the Provincial Land Reform Board.  This

application was granted.

41.  Eventually the matter was however decided by the Supreme Land

Reform Board to which the applicants had successfully complained of the

inaction of the Provincial Land Reform Board.

42.  Before deciding on the matter, the Supreme Land Reform Board had

investigations carried out on the spot by delegates (Abgeordnete) on

19 March 1992.

43.  On 1 April 1992 the Supreme Land Reform Board amended the

consolidation plan and designated the properties which the applicants

received as compensation.

44.  It is stated in the decision that the applicants had a right to

receive real estate properties which corresponded in value to their

former property.  The Board took into account that part of the

applicants' former property had become constructible subsequent to the

allotment.  On the other hand, as the court pointed out, the applicants

had received constructible land in compensation and the size of this

land corresponded to their prior property.  It was also pointed out

that the applicants had not put in question the value (Verkehrswerte)

of the property allotted to them.  It is further pointed out that the

possible increase or decrease of value in respect of constructible land

would have had affected both the applicants prior property as well as

the property allotted to them and consequently they had not suffered

any damage.

45.  The Board further found that the applicants had also received as

much property in size in respect of agricultural property as the

property which had been taken from them at the beginning of the

allotment proceedings.

46.  Insofar as the applicant E. P. had complained that she had not

received adequate compensation for the property No. 9679, the Board

pointed out that this property had been bought by the applicant in

1982.  However, at that time the decision on the re-allocation of this

particular property had already become binding (rechtskräftig).

47.  Insofar as the applicants complained that one of the new sites

allotted to them was hillside property, and therefore the costs of

construction would be higher than on flat land, as had been their

former property, the Board pointed out that, contrary to the

applicants' former corresponding properties, the new site offered the

possibility of constructing two houses with gardens while the

applicants' former plot had been too small for a comparable use.

Therefore possible higher construction costs were balanced by the

higher value of the property.

48.  Subsequently the applicants lodged an appeal to the

Administrative Court.  On 30 October 1992 the Supreme Land Reform Board

submitted its observations to the Administrative Court on the

applicants' appeal.  The appeal is still pending.

III. OPINION OF THE COMMISSION

A.   Complaint declared admissible

49.  The Commission has declared admissible the complaint relating to

the length of the proceedings and the complaint about the alleged

violation of the applicants' right to the peaceful enjoyment of

possessions.

B.   Points at issue

50.  The following points are at issue in the present case:

(a)  Whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention, in that the applicants' civil rights and

obligations were not determined within a reasonable time;

(b)  Whether the situation created by the provisional transfer of the

applicants' property and the alleged insufficiency of the compensation

parcels which the applicants have to accept pending their appeal

amounts to a violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention.

C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention (length

     of the proceedings)

     (1)  Applicability of Article 6 para. 1 (Art. 6-1) of the

          Convention.

51.  The relevant part of the first sentence of Article 6 para. 1

(Art. 6-1) of the Convention reads as follows:

     "In the determination of his civil rights and obligations......,

     everyone is entitled to a fair and public hearing within a

     reasonable time......"

52.  The applicability of this provision to land consolidation

proceedings is uncontested and was repeatedly confirmed by the European

Court of Human Rights (see Wiesinger judgment of 30 October 1991,

Series A no. 213, p. 34, para. 75, with further references).

     (2)  The period to be taken into consideration.

53.  While the Commission considered in its decision on admissibility

of the present application that the proceedings in question started on

16 October 1964, it now finds after further consideration that the

relevant period to be considered under Article 6 para. 1 (Art. 6-1) of

the Convention did not start until 15 December 1969 when the applicants

and their mother appealed against the consolidation plan which had been

established on 31 October 1969.

54.  The earlier date, namely 16 October 1964, when the Agricultural

Authority ordered the provisional transfer of the compensatory parcels

according to the draft consolidation plan, cannot be considered to be

decisive as the applicants did not lodge a complaint against this

decision before the autumn of 1967 after the Provincial Land Reform

Board had granted, on 24 August 1967, a building permit for a sawmill

to another party's compensatory parcel.  However, this complaint was

not pursued by them and therefore the Administrative Court had

discontinued the proceedings on 13 December 1968.

55.  Consequently, a genuine dispute between the parties did not arise

until 15 December 1969 when the applicants and their mother lodged the

appeal against the consolidation plan.

56.  The proceedings started thereby are still pending.  Thus, the

period under consideration has to date lasted nearly 25 years.

     (3)  Reasonableness of the length of the proceedings.

57.  The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance called for an overall assessment (cf. Eur. Court H.R.,

Messina judgment of 26 February 1993, Series A No. 257H, p. 103,

para. 26).

58.  In this context the Commission first recalls that it is

recognised in the jurisprudence of the Convention organs that land

consolidation proceedings are, by their nature, complex and difficult

(cf. Wiesinger judgment op. cit., p. 21 para. 55).  However, a lapse

of nearly 25 years is in itself quite exceptional and the Government

have conceded in their observations on admissibility and merits that

the admittedly long duration of the proceedings was also due to the

conduct of the Austrian authorities as a whole.  In this context the

Commission further notes that the Supreme Land Reform Board in its

decision of 1 April 1992 considered the applicant's complaint about the

inaction of the Provincial Land Reform Board to be justified.

59.  Insofar as the Respondent Government submitted that the

applicants, by their large number of appeals, contributed to the

considerable length of the proceedings, it must be noted in the light

of the result of these appeals that the remedies pursued by the

applicants were not in vain.  It cannot therefore be held against them

that the applicants availed themselves of all possible remedies.

     CONCLUSION

60.  The Commission concludes, unanimously that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention, in that

the applicants' civil rights and obligations were not determined within

a reasonable time.

D.   As regards Article 1 of Protocol No. 1 (P1-1) to the Convention

61.  Article 1 of Protocol No. 1 (P1-1) to the Convention reads as

follows:

     "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 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."

62.  The applicants' claim that there has been a violation of this

provision in that the provisional transfer of land deprived them of

constructible plots.  They admit that in the meantime some of their

compensation plots have also become constructible but still consider

that they have been less favourably treated than another owner whose

property became constructible many years earlier.  Furthermore they

allege that a road construction project will affect the value of some

of their land.

63.  The Government deny that the applicants were given insufficient

compensation parcels and points out that proceedings on this issue are

still pending.

64.  The Commission had regard to the Erkner and Hofauer case and the

Poiss case where the interference, in the form of a provisional

transfer of property, continued over a long period and therefore

violated Article 1 of Protocol No. 1 (P1-1) (Eur. Court H.R., judgments

of 23 April 1987, Series A No. 117).

65.   The present complaint has to be examined in the light of the

judgments given in these cases.

66.  In the Wiesinger case the European Court of Human Rights found

that the purpose of a provisional transfer, which is mainly to ensure

that the consolidation area is continuously and rationally cultivated

during the interim period, would be upset if repeated changes were

allowed (op.cit. p. 27 para. 76).  This reasoning applies a fortiori

to the situation where the provisional transfer of property is

confirmed by the adoption of the land consolidation plan.  The

Commission notes that upon appeal by the applicants the Austrian

Agricultural Authorities which enjoyed a margin of appreciation

(cf. Wieninger judgment, op. cit. p. 27, para. 76) amended the

consolidation plan in the applicants' favour on 15 November 1982.  In

particular a number of compensatory parcels were allotted to the

applicants and they were granted a certain amount of financial

compensation.

67.  Moreover, on 1 April 1992, the Supreme Land Reform Board further

amended the consolidation plan.  The applicants have not shown that

these amendments were totally insufficient.

68.  In view of all these circumstances the Commission considers that

the present case is to be distinguished from the Erkner and Hofauer

case and the Poiss case (judgments cited above) and that the

interference with the applicants' right of property cannot be held as

being disproportionate with the demands of the general public interest

involved in the consolidation proceedings.

     CONCLUSION

69.  The Commission concludes, unanimously that there has been no

violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                       (A. WEITZEL)

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date                     Item

_________________________________________________________________

4 July 1989              Introduction of application

15 September 1989        Registration of application

Examination of admissibility

7 October 1991           Commission's decision (First Chamber) to

                         communicate the case to the respondent

                         Government and to invite the parties to

                         submit observations on admissibility and

                         merits

19 February 1992         Government's observations

25 March 1992            Applicant's observations in reply

30 June 1993             Commission's adoption of text of decision

                         on admissibility

Examination of the merits

12 August 1993           Decision on admissibility transmitted to

                         parties. Invitation to parties to submit

                         further observations on the merits

13 December 1993         Government's observations

8 February 1994          Applicant's observations

14 February 1994         Meeting called in Vienna with parties,

                         applicant did not attend

8 March 1994             Applicants inform Commission that not

                         prepared to enter into friendly settlement

17 May 1994              Commission's consideration of state of

                         proceedings

31 August 1994           Commission's deliberations on the merits,

                         final vote and consideration of text of

                         the Report

31 August 1994           Adoption of Report

 

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