The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgments of the European Court of
Human Rights in the case of Erkner and Hofauer against Austria
delivered on 23 April 1987 and 29 September 1987 and transmitted
the same days to the Committee of Ministers;
Recalling that the case originated in an application against
Austria lodged with the European Commission of Human Rights on
3 April 1979 under Article 25 (art. 25) of the Convention by
Mr Johann Erkner and Mrs Theresia Erkner and after Mr Erkner's
death, Mr Josef Hofauer and Mrs Theresia Hofauer, all of whom are
Austrian nationals, who complained of violations of their right
to a hearing within a reasonable time and of their right of
property;
Recalling that the case was brought before the Court by the
Commission on 14 May 1986;
Whereas in its judgment of 23 April 1987 the Court
unanimously:
- held that there had been a breach of Article 6,
paragraph 1 (art. 6-1), of the Convention as regards observance
of the "reasonable time" requirement;
- held that it had no jurisdiction to entertain the other
complaints made by the applicants under this provision;
- held that there had been a breach of Article 1 of
Protocol No. 1 (P1-1);
- held that the question of the application of Article 50
(art. 50) of the Convention was not ready for decision;
Whereas in its judgment of 29 September 1987 the Court took
formal note of a friendly settlement reached between the
government and the applicants according to which the government
agreed to pay the applicants 650 000 Austrian schillings, and
decided unanimously, after having been informed that the sum in
question had also been paid to the applicants, to strike the case
out of its lists;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Austria to inform it of the
measures which had been taken in consequence of the judgments of
23 April 1987 and 29 September 1987, having regard to Austria's
obligation under Article 53 (art. 53) of the Convention to abide
by it;
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
judgments, which information appears in the appendix to this
resolution,
Declares, after having taken note of the information
supplied by the Government of Austria, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (94) 22
Information provided by the Government of Austria
during the examination of the Erkner and Hofauer
case by the Committee of Ministers
The Austrian Government considers that the legislative
amendments made over the last years will simplify and speed up
the proceedings in land consolidation cases and also provide an
adequate compensation regulation, thus preventing the repetition
of violations of the kind found in the present case.
The Agricultural Proceedings Act (Agrarverfahrensgesetz
1950) has been amended (BGBl Nr. 901/1993) in order to adapt it
to recent developments in administrative law, in particular under
the General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrensgesetz 1950); the new act streamlines the
procedure and provides among other things for a public hearing
in agricultural proceedings.
Changes have also been introduced in the Federal
Agricultural Authorities Act (Agrarbehördengesetz 1950 - BGBl
Nr. 902/1993) in order to take into account the problems which
have arisen under the Convention. According to the new
legislation questions regarding compensation under the Federal
Agricultural Land Planning (General Principles) Act
(Flurverfassungs-Grundsatzgesetz 1951) are henceforth to be
decided by the Provincial Land Reform Board (Landesagrarsenat)
at first instance, with a right to appeal to the Supreme Land
Reform Board (Oberster Agrarsenat).
An amendment to the Federal Agricultural Land Planning
(General Principles) Act (BGBl Nr. 903/1993) introduces a general
right to compensation in land consolidation cases (Article 10 of
the act). According to the new provision, compensation may be
accorded in all cases of unlawful redistribution of land. Claims
can be filed within one month from the entry into force of the
decision confirming the consolidation plan (Zusammenlegungsplan).
The compensation in principle is calculated by comparing the
yield of the ceded property with that of the property unlawfully
given and is to be paid by those other property owners who bear
the costs of the responsible Agricultural Authority
(Agrarbehörde).
The last three reforms entered into force on 1 January 1994.
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