ALOIS AND HERTHA WIENINGER AGAINST AUSTRIA



     The Committee of Ministers, under the terms of Article 32

(art. 32) of the Convention for the Protection of Human Rights and

Fundamental Freedoms (hereinafter referred to as "the Convention"),

     Having regard to the report drawn up by the European

Commission of Human Rights in accordance with Article 31 (art. 31)

of the Convention relating to the application lodged on

12 December 1986 by Mr Alois Wieninger and Mrs Hertha Wieninger

against Austria (Application No. 12650/87);

     Whereas on 11 March 1994 the Commission transmitted the said

report to the Committee of Ministers and whereas the period of

three months provided for in Article 32, paragraph 1 (art. 32-1),

of the Convention has elapsed without the case having been brought

before the European Court of Human Rights in pursuance of

Article 48 (art. 48) of the Convention;

     Whereas in their application, as declared admissible by the

Commission on 31 May 1991, the applicants complained that a certain

provisional redistribution of land in the context of land

consolidation proceedings constituted an unjustified interference

with their right to the peaceful enjoyment of their possessions;

     Whereas in its report adopted on 11 January 1994 the

Commission expressed, unanimously, the opinion that there had been

a violation of Article 1 of Protocol No. 1 (P1-1);

     Whereas, at the 517th meeting of the Ministers' Deputies held

on 21 September 1994, the Committee of Ministers, agreeing with the

opinion expressed by the Commission, held, having voted in

accordance with the provisions of Article 32, paragraph 1

(art. 32-1), of the Convention, that there had been in this case a

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

     Whereas the Committee of Ministers examined the proposals made

by the Commission when transmitting its report as regards just

satisfaction to be awarded to the applicants, proposals

supplemented by a letter of the President of the Commission dated

13 April 1995;

     Whereas, at the 539th meeting of the Deputies held on

7 June 1995, the Committee of Ministers decided, in accordance with

Article 32, paragraph 2 (art. 32-2), of the Convention, that the

Government of Austria was to pay the applicants as just

satisfaction 90 000 Austrian shillings for non-pecuniary damage and

for costs and expenses;

     Whereas the Committee of Ministers invited the Government of

Austria to inform it of the measures taken following its decisions

of 21 September 1994 and 7 June 1995, having regard to Austria's

obligation under Article 32, paragraph 4 (art. 32-4), of the

Convention to abide by them;

     Whereas, during the examination of the case by the Committee

of Ministers, the Government of Austria gave the Committee

information about the measures taken in consequence of the

Committee's decisions, which information appears in the appendix to

this resolution;

     Whereas the Committee of Ministers satisfied itself that,

within the time-limit set, the Government of Austria paid the

applicants the total sum of 90 000 Austrian shillings as just

satisfaction,

     Declares, having taken note of the measures taken by the

Government of Austria that it has exercised its functions under

Article 32 (art. 32) of the Convention in this case,

     Authorises the publication of the report of the Commission in

this case.

               Appendix to Resolution DH (95) 216

        Information provided by the Government of Austria

during the examination of the case of Alois and Hertha Wieninger

                  by the Committee of Ministers

     Article 10 of the Federal Agricultural Land Planning (General

Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended

on 1 January 1994 (BGBl Nr. 903/1993), has introduced a general

right to compensation in land consolidation cases (see also, inter

alia, Resolution DH (94) 22 in the case of Erkner and Hofauer).

According to the new provision a landowner who considers that he

has suffered a loss on account of an unlawful provisional

redistribution of land can submit a claim for compensation to the

Provincial Land Reform Board (Landesagrarsenat) within one month of

the entry into force (formeller Rechtskraft) of the consolidation

plan (Zusammenlegungsplan).

     Compensation claims can not be dealt with before the entry

into force of the consolidation plan as the lawfulness of the

provisional measure can only be assessed with reference to this

plan.  The legislative amendments made over the last years have,

however, simplified and speeded up the proceedings in land

consolidation cases so as to minimise the time between the

provisional redistribution of land and the entry into force of the

consolidation plan.

     In view of these reforms the Government of Austria is of the

opinion that there is no risk of repetition of the violation found

in the present case and that it has, accordingly, complied with

Austria's obligations under Article 32 (art. 32) of the Convention.

 

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