AS TO THE ADMISSIBILITY OF
Application No. 15506/89
by A.P., E.P., M.P.
and H.P.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 30 June 1993, the following members being present:
MM. E. BUSUTTIL, Acting President of the First Chamber
F. ERMACORA
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 July 1989 by
A.P., E.P., M.P. and H.P. against Austria and registered on 15
September 1989 under file No. 15506/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the Commission's decision of 7 October 1991 to
communicate the application;
Having regard to the observations submitted by the respondent
Government on 19 February 1992 and the observations in reply submitted
by the applicants on 25 March 1992;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted by the applicants may be summarised as
follows :
The applicants, Austrian citizens, own a farm at S., Burgenland.
They are represented by Mr. Erich Proksch, a lawyer practising in
Vienna.
Their farm is involved in agricultural land consolidation
proceedings (Zusammenlegungsverfahren) under the Agricultural Land
Planning Act (Flurverfassungsgesetz) of Burgenland.
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.
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.
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.
On 16 October 1964 the Agricultural Authority of first instance
ordered the provisional transfer of the compensatory parcels according
to the draft consolidation plan.
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.
On 24 August 1967 the Provincial Land Reform Board granted a
building-permit for a sawmill on the other party's compensatory parcel.
Subsequently, the first and the fourth applicant lodged a
complaint against the decision of 16 October 1964 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.
On 31 October 1969 the consolidation plan (Zusammenlegungs-Plan)
was issued.
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.
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.
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.
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.
On 8 April 1976 the Provincial Land Reform Board inspected the
land consolidation area.
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.
On 5 March 1979 the Constitutional Court dismissed the
applicants' complaint and referred it to the Administrative Court.
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.
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.
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.
On 13 June 1983 the Provincial Land Reform Board dismissed the
applicants' appeal. The applicants lodged a complaint with the
Constitutional Court.
On 22 November 1985 the Constitutional Court refused to deal with
the complaint and referred it to the Administrative Court.
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.
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.
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.
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.
Before deciding on the matter, the Supreme Land Reform Board had
investigations carried out on the spot by delegates (Abgeordnete) on
19 March 1992.
On 1 April 1992 the Supreme Land Reform Board amended the
consolidation plan and designated the properties which the applicants
received as compensation.
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.
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.
Insofar as the applicant Ernestine Piplits 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).
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.
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.
COMPLAINTS
The applicants mainly complain under Article 6 para. 1 of the
Convention that in the above land consolidation proceedings their civil
rights have not been determined within a reasonable time. They further
allege that the competent agricultural authorities did not fulfil the
requirements of an independent and impartial tribunal.
The applicants also allege a violation of Article 1 of Protocol
No.1 to the Convention. They claim that as a result of the
authorities' failure to allot building plots to them which they could
have sold, they suffered a loss of some 700.000 AS. They fear further
losses by the expropriation of land near their farmhouse for the
purpose of the construction of a way of access which they regard as
superfluous.
PROCEEDINGS
The application was introduced on 4 July 1989 and registered on
15 September 1989.
On 7 October 1991 the Commission decided to give notice of the
application to the respondent Government who were invited to submit
observations in writing on the admissibility and merits of the
complaint under Article 6 para. 1 of the Convention before 7 January
1992. At the Government's request, this time-limit was subsequently
extended to 18 February 1992.
The Government submitted their observations on 19 February 1992
and the applicants replied thereto on 25 March 1992. The Government
submitted supplementary information on 24 February 1993.
THE LAW
1. The applicants mainly complain that, in agricultural land
consolidation proceedings concerning their property, their civil rights
and obligations were not determined "within a reasonable time" as
required by Article 6 para. 1 (Art. 6-1), first sentence of the
Convention, which 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 by an independent and impartial tribunal
established by law."
The proceedings in question have started on 16 October 1964, when
the Agricultural Authority ordered the provisional transfer of property
in the applicants' case and have still not been terminated. It is
uncontested that Article 6 (Art. 6) applies to the proceedings in
question (Eur. Court H.R., Ettl and others judgment of 24 April 1987,
Series A No. 117, p. 16 para. 32). Furthermore the respondent
Government have not advanced any objections as to the admissibility of
this complaint.
The Commission considers in the light of the criteria established
by the case-law of the Convention organs on the question of "reasonable
time" (the complexity of the case, the applicants' conduct and that of
the competent authorities) and having regard to all the information in
its possession, that a thorough examination of this complaint is
required as to the merits.
2. The applicants further allege a violation of their right to the
peaceful enjoyment of possessions as guaranteed by Article 1 of
Protocol No. 1 (P1-1).
They allege that they received insufficient compensation in
exchange for the property taken from them, as allegedly the property
allotted to them is less valuable. The respondent Government deny
this.
The Commission first notes that domestic remedies are not yet
exhausted, as the application before the Administrative Court is still
pending. Nevertheless, in view of the length of the proceedings the
effectiveness of this remedy is in question.
The issue is linked to the merits and cannot therefore be
rejected as being inadmissible.
3. The applicants finally argue that the proceedings in question
were neither fair nor carried out before independent tribunals. They
submit that the members of the Land Reform Boards are in general
insufficiently informed, as examinations on the spot will be carried
out, if at all, by delegates only. Furthermore they criticise that
only the community is heard in the proceedings, and not all persons
affected by consolidation plans.
Finally they consider that the Agricultural Authority is
practically to be considered as a party.
The Government submit that the Provincial as well as the Supreme
Land Reform Board is an independent and impartial tribunal. They also
point out that no allegations have been advanced by the applicants
tending to show that they had justified reasons to doubt the
independence and impartiality of the judges in question.
The Commission first observes that the applicants have lodged
another appeal to the Administrative Court and consequently the
question might arise whether they have exhausted domestic remedies in
regard to this particular complaint. In any event it has to be noted
that delegates of the Supreme Land Reform Board carried out a local
inspection and that this Board examined the arguments of the parties.
There is nothing to show that the applicants have so far been denied
a fair hearing or that they had any justified reasons for doubting the
independence and impartiality of the judges of the Supreme Land Reform
Board which is in itself a tribunal established by law (Ettl and Others
judgment, loc. cit., p. 17 para. 34).
It follows that this part of the application has to be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE without prejudging the merits 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.
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber Acting President of the
First Chamber
(M.F. BUQUICCHIO) (E. BUSUTTIL)
Full & Egal Universal Law Academy