In the case of Erkner and Hofauer*,
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* Note by the Registrar: The case is numbered 16/1986/114/162. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
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The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. R. Ryssdal, President,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. C. Russo,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 October 1986 and 24 March 1987,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 14 May 1986, within
the three-month period laid down in Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 9616/81) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by Mr. Johann Erkner,
Mrs. Theresia Erkner and, after Mr. Erkner's death, Mr. Josef Hofauer
and Mrs. Theresia Hofauer, all Austrian nationals, in 1979 and 1984.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Austria recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 6 § 1 (art. 6-1) of the Convention and
Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with Rule 33 § 3
(d) of the Rules of Court, the applicants stated that they wished to
take part in the proceedings pending before the Court and designated
the lawyer who would represent them (Rule 30).
3. On 5 June 1986, the President of the Court referred the case
to the Chamber constituted to consider the case of Ettl and Others
(Rule 21 § 6). This included ex officio Mr. F. Matscher, the elected
judge of Austrian nationality (Article 43 of the Convention)
(art. 43) and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3
(b)). The other five members, chosen by lot on 25 October 1985, were
Mr. D. Evrigenis, Mr. F. Gölcüklü, Mr. B. Walsh, Sir Vincent Evans and
Mr. C. Russo (Article 43 in fine of the Convention and Rule 21 § 4)
(art. 43). Subsequently, Mr. Evrigenis died, and his place was taken
by Mr. G. Lagergren, substitute judge (Rules 22 § 1 and 24 § 1).
On 17 June 1986, the President of the Court gave the applicants'
lawyer leave to use the German language (Rule 27 § 3).
4. Having assumed the office of President of the Chamber
(Rule 21 § 5), Mr. Ryssdal consulted, through the Deputy Registrar,
the Agent of the Austrian Government ("the Government"), the
Commission's Delegate and the applicants' lawyer on the need for a
written procedure (Rule 37 § 1). On 30 June 1986, he directed that
the said Agent and lawyer should each have until 15 August 1986 to
submit memorials, and that the Delegate should be entitled to file a
memorial in reply within two months of the day on which the last filed
of these memorials was forwarded to him by the Registrar.
The applicants' memorial reached the registry on 18 August. The
Permanent Representative of Austria to the Council of Europe and the
Secretary to the Commission informed the Registrar, on 21 August and
22 September respectively, that the Government and the Commission's
Delegate did not intend to submit any observations in writing.
5. Having consulted - through the Deputy Registrar - the
Government's Agent, the Commission's Delegate and the applicants'
lawyer, the President of the Court directed on 25 September that the
oral proceedings should commence on 20 October 1986 (Rule 38).
On 13 October, the Commission provided the Registrar with a number of
documents he had asked for on the President's instructions.
6. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mr. H. Türk, Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr. D. Okresek, Federal Chancellery,
Mr. D. Hunger, Federal Ministry of Agriculture and
Forestry, Advisers;
- for the Commission
Mr. F. Ermacora, Delegate;
- for the applicants
Mr. E. Proksch, Rechtsanwalt, Counsel.
The Court heard addresses by the above, as well as their replies to
its questions. The applicants produced documents during the hearing.
7. On 30 December 1986 and 27 January 1987, Mr. Proksch filed
with the registry two documents, the first of which gave further
particulars of one point in his clients' claim for just satisfaction.
The Agent of the Government supplied a document on 7 January 1987.
AS TO THE FACTS
8. The applicants, Johann Erkner (deceased on 22 June 1983), his
wife, Theresia Erkner, their son-in-law, Josef Hofauer, and their
daughter, Theresia Hofauer, are Austrian farmers resident at Pöndorf,
Upper Austria. They complain of consolidation proceedings
(Zusammenlegungsverfahren) taken in respect of their land since
January 1969.
I. The circumstances of the case
1. The initial stages of consolidation
9. In a decision given on 27 February 1969, the Gmunden District
Agricultural Authority (Agrarbezirksbehörde - "the District
Authority") opened land-consolidation proceedings at Forstern-Pöndorf.
Thirty-eight landowners were affected, and the operation covered
266 hectares; of these, 16 hectares were owned by Mr. and Mrs. Erkner,
and about 3.5 hectares by Johann Erkner and his sister.
10. A land-valuation hearing was held on 21 April 1969. The
twenty-six landowners present (the Erkners had been summoned, but did
not attend) concluded an agreement, which was approved by the District
Authority on the following day. The decision was served on the Erkner
family on 27 May 1969; they did not appeal.
Between 2 and 16 July 1969, all the parties were given notice of the
valuation schedule (Bewertungsplan). The applicants were also given
notice of the remedies available but they did not appeal, and the
schedule accordingly became final.
11. A further hearing was held on 8 August 1969. This was
attended by the Erkners and their lawyer, who stated their wishes as
regards reorganising the consolidation area inasmuch as it affected
them.
12. By August 1970, the District Authority had drawn up a communal
facilities plan and a draft consolidation plan. The compensatory
parcels of land to be allotted to the landowners concerned had been
marked out.
Mr. and Mrs. Erkner raised objections, which they maintained by and
large in subsequent proceedings, including the proceedings for
provisional transfer of land, which were concluded in 1975 (see
paragraph 17 below), and the proceedings regarding the main
reorganisation, which began in 1976 (see paragraph 19 below) and have
not yet been concluded. They argued that the parcels of land offered
them were less than their due, since they were being required to give
up first-class farmland which faced south and was close to their
farmhouse, in return for plots which were slightly larger in area but
of poor - indeed very poor - quality, being wet, and also further from
the farm.
2. The provisional transfer of parcels in compensation
13. On 10 August 1970, the District Authority ordered the
provisional transfer of compensatory parcels on the basis of the draft
consolidation plan. This decision was taken at the request of
thirty-four of the landowners and opposed by the four others
(including the Erkners), and it was based on section 97 of the
1911/1954 Upper Austrian Agricultural Land Planning Act
(Flurverfassungs-Landesgesetz - see paragraph 40 below). It referred
to the interests of the thirty-four - in particular the interest they
had in rationalising their holdings and familiarising themselves with
the new land situation. These interests outweighed the objections of
those opposed to the scheme, who were at all events entitled to appeal
against the consolidation measures. The difference in area between
the land held by the majority (221 hectares) and the minority was
sufficient security for any compensation which the latter might later
be entitled to claim.
The decision was served on the Erkners on 4 April 1973, together with
a note stating that by the terms of section 97(5) of the 1911/1954 Act
no appeal was possible (see paragraph 45 below). According to the
Government, several previous attempts to serve the decision had
failed.
14. The Erkners then appealed to the Administrative Court
(Verwaltungsgerichtshof), claiming that this note was incorrect, since
section 7 of the Federal Agricultural Authorities Act
(Agrarbehördengesetz 1950 - see paragraphs 38, 45 and 48 below) had
repealed section 97(5) of the 1911/1954 Act.
While essentially confirming that this was the case, the
Administrative Court nonetheless dismissed the appeal on
21 September 1973, on the ground of non-exhaustion of remedies: the
Erkner family should have appealed direct to the Provincial Land
Reform Board (Landesagrarsenat - "the Provincial Board").
15. The applicants had in fact applied for leave to bring an
appeal (Berufung) out of time, but the District Authority had declared
this application inadmissible on 25 June 1973. That decision was
upheld on 19 March 1974 by the Provincial Board, which held,
notwithstanding the Administrative Court's decision, that any appeal
was now ruled out by section 22(5) of the Provincial Act of 1972
(see paragraph 40 below).
16. The Erkners then appealed to the Constitutional Court
(Verfassungsgerichtshof), claiming, inter alia, that their right to be
heard by the lawful judge (gesetzlicher Richter) had been violated.
On 11 December 1974, the Constitutional Court dismissed the appeal as
unfounded but, at the applicants' request, referred the case to the
Administrative Court for a decision whether any non-constitutional
rights had been infringed.
17. In its second decision, of 23 June 1975, the Administrative
Court confirmed its earlier opinion that a remedy existed and
accordingly set aside the Provincial Board's decision to refuse to
allow an appeal out of time. The Board dismissed the appeal on
25 November 1975 nonetheless, and the applicants did not appeal
against that decision.
18. In spite of these proceedings, the provisional transfer of
land had been effected in the meantime. The Erkners initially
continued to cultivate the fields near their farm; but the police
expelled them, and the corn they had sown was destroyed. The couple
consistently refused to cultivate any of the compensatory parcels of
land allotted to them.
3. The consolidation plans and related proceedings
(a) The first plan
19. On 7 May 1976, the District Authority adopted the
consolidation plan, which ratified unchanged the situation brought
into being by the draft plan of 1970 (see paragraph 12 above); the
plan was published on 25 May.
20. Mr. and Mrs. Erkner appealed against this plan on 3 June,
challenging it on essentially the same grounds as those on which which
they had already objected to the provisional transfer. They relied on
an expert opinion by a university specialist in agronomy, who
concluded that the exchange of land had been to the applicants' clear
disadvantage and put the value of the annual loss of yield at
approximately 50,000 schillings.
The Provincial Board gave its decision on 26 April 1977. In so far as
the Erkners had challenged the valuation of the land in question, it
held the appeal to be inadmissible, since the valuation schedule had
already become final. In so far as they had claimed financial
compensation, it ruled that it had no jurisdiction, since the District
Authority had not determined the matter.
However, it allowed the appeal as regards the land awarded in
compensation, finding that the applicants had lost about 14 hectares
of good, south-facing land and had received in return a little under
23 hectares of land in the three least valuable categories, which
faced north, was more overshadowed by forest and lay further from the
farmhouse. This meant that they had not been properly compensated as
provided for by statute, especially as the arrangement adopted would
require a major change in their type of farming. The Provincial Board
accordingly quashed the entire consolidation plan and remitted the
case to the District Authority with a direction to reconsider the
matter and adopt a new plan.
The decision was served on the applicants on 31 May 1977.
(b) The second plan
21. The District Authority failed to give a decision within the
statutory six-month time-limit (section 73(1) of the General
Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz)
- see paragraph 55 below).
On 19 January 1979, the applicants applied to have jurisdiction
transferred from the District Authority to the Provincial Board
(section 73(2) of the same Act).
The Provincial Board granted this application and issued a new plan
more advantageous to the Erkners on 18 December 1979. The Erkners,
however, considered it unsatisfactory and incompatible with the
applicable legislation, and on 22 January 1980 lodged an appeal with
the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme
Board").
22. The Supreme Board failed to give a decision within the
statutory six-month period, and Mr. and Mrs. Erkner accordingly
applied to the Administrative Court on 14 October 1980 to determine
the matter itself under Article 132 of the Federal Constitution
(Bundes-Verfassungsgesetz - see paragraph 55 below).
This application was not pursued, since the Supreme Board allowed the
applicants' appeal on 3 December 1980 and remitted the case to the
District Authority with a direction that it should adopt a new plan.
It held that the allocation of a larger tract of north-facing land
could not compensate for the loss of the good land facing south.
The decision was served on the applicants on 29 December.
(c) The third plan
23. Once again, the District Authority failed to give a decision
within the statutory time-limit. Instead, it began to consider a
drainage scheme for some of the lands allotted to the Erkners, who
regarded this as unreasonable.
On 30 November 1981, they accordingly applied to the Provincial Board
to determine the matter itself (section 73(2) of the General
Administrative Procedure Act - see paragraph 55 below).
On 14 January 1982, the Provincial Board dismissed this application.
It found that the District Authority had taken steps to prepare a new
plan and was not therefore responsible for the delay. It also
considered that planning a drainage scheme was acceptable at this
stage in the proceedings.
24. On 3 February, the applicants appealed to the Supreme Board
against the Provincial Board's decision, which had been served on them
on 21 January. The appeal was dismissed on 22 June.
On 15 July 1982, the District Authority adopted a new plan, which
provided in particular for additional communal facilities that would
drain some of the land allocated to the Erkners. This plan was
published on 27 July.
25. On 23 August, the applicants appealed against the new plan to
the Provincial Board, claiming that it still failed to provide
compensation complying with the Supreme Board's decision of
3 December 1980 (see paragraph 22 above). They also challenged the
accuracy of the legal description of the improvement scheme as a
communal facility.
On 28 April 1983, the Provincial Board allowed the appeal. It ordered
certain changes in the land allocations made to the Erkners and other
parties but confirmed, and even widened, the drainage schemes planned
by the District Authority, holding that the creation of additional
communal facilities of this kind was lawful.
This decision was served on the parties on 9 June.
26. While recognising that progress had been made, the applicants
considered that the requirements laid down by the Supreme Board on
3 December 1980 (see paragraph 22 above) had still not been entirely
satisfied. On 20 June 1983, they accordingly lodged a further appeal
- supported by an expert opinion - with the Supreme Board. They
complained that the land offered in compensation still contained too
many wet areas and had other disadvantages. They also challenged the
Provincial Board's jurisdiction to order new communal facilities and
sought a decision on their claim for financial compensation for the
damage they had sustained since the provisional transfer of the
compensatory parcels of land (see paragraph 20 above).
On 4 April 1984, the Supreme Board dismissed the appeal as unfounded,
holding that the advantages of the consolidation scheme as a whole
outweighed any disadvantages and no longer made any changes in
production methods necessary; the allocation decided on by the
Provincial Board accordingly satisfied legal requirements.
This decision was served on the applicants on 30 May.
4. The appeals to the Administrative Court
27. Following the death of Johann Erkner on 22 June 1983, his
daughter and son-in-law, Theresia and Josef Hofauer, took over the
whole of the farm, including the share of Johann Erkner's widow,
Theresia.
28. On 10 July 1984, the three parties together lodged an appeal
with the Administrative Court against the Supreme Board's decision.
They argued that they had not received proper compensation in kind as
provided for by statute, since there was still a deficit of
south-facing land; that the allocation of land requiring additional
communal drainage - at unspecified cost - was unreasonable; and that
they had not been allotted land of special value (i.e. building land)
close to their farm. They further claimed that their right to be
heard had been infringed and that the problem of financial
compensation remained unsettled.
In a decision given on 19 March 1985 and served on 7 May, the
Administrative Court declared the appeal inadmissible in so far as it
had been brought by Theresia Erkner, as she was no longer a party, and
in respect of the failure to determine the question of financial
compensation, on the ground of non-exhaustion of remedies. It allowed
the appeal of the other two applicants as to the rest and accordingly
quashed the impugned decision. It ruled that, under the law in force,
full details of communal facilities, including their cost, should be
decided on when the consolidation plan was adopted, at the latest.
29. On 3 July 1985, pursuant to this decision, the Supreme Board
set aside the consolidation plan drawn up by the Provincial Board, in
so far as it laid down the compensation due to the Hofauer family. In
its decision, which was served on the applicants on 16 July, the
Supreme Board stated that the question of the communal facilities had
to be settled first.
30. On 18 July 1985, Mr. and Mrs. Hofauer again appealed to the
Administrative Court. They claimed that section 66 of the General
Administrative Procedure Act had been contravened, since the Supreme
Board had neither determined the merits itself (subsection 4) nor
remitted the case to the Provincial Board for decision (subsection 2).
The middle course of quashing the decision and simultaneously
adjourning the proceedings was not provided for in the Act, which did
not allow appeal proceedings to be resumed once a communal facilities
plan had been finally adopted. If the Supreme Board determined their
appeal after the event, they would no longer have any remedy for the
other complaints, which the Administrative Court had not had occasion
to consider on 19 March 1985.
The Administrative Court dismissed the appeal on 12 September 1985
and notified its decision to Mr. and Mrs. Hofauer on 8 November.
31. In the meantime, the Provincial Board had taken a fresh decision
on 24 October 1985 (served on the applicants on 31 October),
reconsidering Mr. and Mrs. Hofauer's appeal against the latest
consolidation plan, i.e. the one of 15 July 1982 (see paragraph 24
above). In accordance with the Administrative Court's earlier
judgment, of 19 March 1985 (section 63(1) of the Administrative Court
Act - see paragraph 28 above), it quashed the plan on the ground that
it did not comply with the procedural rules applying to any decision
on communal facilities. It added, however, that there was no reason to
abandon the scheme for draining the wet land allocated to the
Hofauers, since the Administrative Court had not regarded the communal
facilities required for this purpose as inherently unlawful. The
District Authority should now therefore order the necessary communal
measures and facilities and, once these had been completed, publish a
new consolidation plan.
32. Earlier, on 27 August 1985, Mr. and Mrs. Hofauer had applied
to the District Authority for part of their land to be exempted from
consolidation. This application was dismissed on 21 April 1986, and
an appeal lodged on 7 May was dismissed by the Provincial Board
on 3 July. On 25 August 1986, Mr. and Mrs. Hofauer applied to the
Constitutional Court, which has not given a decision to date
(24 March 1987).
33. As the proceedings relating to the communal measures and
facilities are still pending, no new consolidation plan has been
adopted to date.
On 27 May 1986, however, the District Authority ordered Mr. and
Mrs. Hofauer to allow a drainage system to be installed. An appeal
against this decision, lodged with the Provincial Board on 13 June,
was dismissed on 23 October 1986. On 23 December 1986, the applicants
applied to the Constitutional Court, which has not given judgment to
date.
5. The proceedings relating to the claim for financial compensation
34. In the meantime, the District Authority had contacted the
applicants on the question of their claim for financial compensation
for damage sustained since the provisional transfer of land - a matter
which had been raised in 1976, and then in 1978, 1982, 1984 and 1985.
It wanted particulars of the amount of the claim, the persons or
authorities against whom it was directed and its legal basis. On this
last question, it pointed out that the statute applicable to the case
- the Act of 1911/1954 - made no provision for financial compensation.
On 30 July 1985, the applicants' lawyer replied that his clients were
claiming 50,000 schillings per annum since 1970, the year the
provisional transfer was made, i.e. a total of 750,000 schillings,
plus interest. He said that it was not his business to inform the
Authority of the relevant law, but he nevertheless referred to the
decision on the provisional transfer, which expressly mentioned the
possibility of claiming compensation and alluded to the property of
the majority group of landowners as security. The applicants' claim
related to deprivation of property and could be founded, if no other
provision applied, on Article 365 of the Civil Code. Unless
compensation was paid, the deprivation of property would amount to
unconstitutional despoliation and the whole operation would be
vitiated by a fundamental procedural defect making it necessary to
restore the original situation.
35. On 26 September 1985, the District Authority held that it had
no jurisdiction to entertain the claim, which in any case appeared to
have no basis in law.
On 11 November, the applicants appealed to the Provincial Board
against this decision, which they claimed was wrong in law. The Act
itself confirmed that the agricultural authorities had jurisdiction in
the matter. No other judicial body was competent to deal with the
question of an unlawful provisional transfer and compensation for
ensuing damage. The District Authority's intention in referring in
its decision of 10 August 1970 (see paragraph 13 above) to the
existence of sufficient security had been to make it clear that the
provisional transfer should not be detrimental to the applicants.
Having decided on "forced expropriation" by means of the "forced
exchange", the authority was bound to mitigate the damage and find a
means of offering compensation (Ausgleich).
36. On 9 January 1986, the Provincial Board held that the appeal
was inadmissible in respect of Mrs. Erkner, who was no longer a party
to the proceedings (see paragraphs 27-28 above), and ill-founded in
respect of Mr. and Mrs. Hofauer. Their claim had no basis in the
relevant law: the authorities had no jurisdiction to entertain
compensation claims unless such matters were necessarily (unbedingt)
part of the land operations, which was not so in the instant case. It
was not for the Board to determine whether or not the applicants could
submit their claims to the ordinary courts.
On 19 March 1986, Mr. and Mrs. Hofauer made an application to the
Constitutional Court, which has not given a decision to date
(24 March 1987).
II. The relevant legislation
1. In general
37. Powers in respect of land reform in Austria are divided
between the Federation and the Länder. Legislation establishing
general principles is the responsibility of the Federation, while
implementing legislation and law enforcement is the responsibility of
the Länder (Article 12(1)(3) of the Federal Constitution). By
Article 12(2) of the Federal Constitution, decisions at final instance
and at Land level are taken by boards consisting of a "chairman,
judges, civil servants and experts"; "the board which decides at final
instance shall be set up within the appropriate Federal Ministry".
"Provision shall be made in a Federal Act for the organisation,
functions and procedure of the boards and for the principles for
organising the other authorities concerned with land reform". This
Act must provide that the executive shall not be able to set aside or
vary the boards' decisions; it cannot exclude appeals to the
provincial board against decisions by the authority of first instance.
38. Within this constitutional framework the Federal Parliament
has passed three Acts dealing with the following matters:
(i) the legal principles applicable to land reform (Federal
Agricultural Land Planning (General Principles) Act (Flurverfassungs-
Grundsatzgesetz 1951), as amended in 1977);
(ii) the organisation of the land reform boards and the principles
for organising the authorities of first instance (Federal Agricultural
Authorities Act (Agrarbehördengesetz 1950), as amended in 1974);
(iii) proceedings before agricultural authorities (Federal
Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which
refers to the General Administrative Procedure Act).
2. The consolidation of agricultural land
39. The basic rules applying to the consolidation of agricultural
land are embodied in the Federal Agricultural Land Planning (General
Principles) Act. The Länder have regulated the matters for which they
are made responsible under the Federal legislation in provincial
agricultural land planning Acts (Flurverfassungs-Landesgesetze).
40. In Upper Austria, consolidation is governed by the
Agricultural Land Planning Act 1979 ("the Provincial Act"). This
replaced an Act of 1972, which had itself replaced an Act of 1911 that
had been brought into force again in 1954. The latter Act applied
when the disputed proceedings began and will accordingly remain
applicable until they are concluded.
41. The purpose of consolidation is to improve infrastructure and
the pattern of agricultural holdings in a given area. It comprises
communal measures and facilities and redistribution of land. The
operation takes place in the following stages:
- the initial proceedings (section 64 et seq. of the 1911/1954 Act);
- ascertainment of the occupiers of the land in question and
assessment of its value (sections 78-83);
- planning of communal measures and facilities (sections 84-92);
- provisional transfer of land, where appropriate (section 97);
- adoption of the consolidation plan (sections 92-110).
None of these stages may begin until the previous stage has been
terminated with a final decision.
42. The initial proceedings, which are instituted officially, serve
to determine the consolidation area, which, in addition to farmland
and forest, may include land voluntarily offered for consolidation and
land required for communal facilities. The owners form an association
(Zusammenlegungsgemeinschaft), which is a corporate body governed by
public law.
The institution of proceedings means that land use is restricted until
the proceedings are concluded; any change in use must be approved by
the appropriate agricultural authority.
43. Once the decision to open proceedings has become final, the
agricultural authority ascertains who are the occupiers of the land
and assesses its value. Its decision (Besitzstandsausweis und
Bewertungsplan) determines the value of the land in accordance with
precise statutory criteria. Each of the landowners involved may
challenge the valuation not only of his own land but also of the land
of the others. Once the agricultural authority's decision has become
final, however, it is binding on all of them.
44. Communal measures (e.g. soil improvement, alterations to
terrain or landscape) and communal facilities (e.g. private roads,
bridges, ditches, drainage and irrigation) are ordered where they are
needed to provide suitable access to or permit effective cultivation
of the compensatory parcels of land, or if they otherwise assist the
consolidation scheme in the interests of the majority of the parties
concerned. Alteration, relocation or removal of existing facilities
may also be ordered. All these matters are embodied in a specific
decision by the relevant authority (Plan der gemeinsamen Massnahmen
und Anlagen), which must also settle the question of costs, usually
shared by the landowners.
45. Under section 97 of the Provincial Act of 1911/1954, land may
be provisionally transferred, even if some owners object, where:
- the compensatory parcels provided for in the draft consolidation
plan have already been marked out;
- delay in implementing the said plan might seriously prejudice the
owners requesting a transfer; and
- there is sufficient security that owners opposed to the transfer
will be compensated for any disadvantages they may suffer.
By section 97(5), decisions by the competent authorities ordering
provisional transfers are not appealable; but section 7 of the
(later) Federal Agricultural Authorities Act provides that the final
decision shall lie with the Provincial Land Reform Board, except in
cases where an appeal lies to the Supreme Board (see paragraph 48
below).
The main purpose of provisional transfer is to ensure that the
consolidation area is rationally cultivated during the interim period.
The land transferred becomes the property of the transferees subject
to a condition subsequent: it reverts if the allocation is not
confirmed in the final consolidation plan (Eigentum unter auflösender
Bedingung).
46. At the end of the proceedings, the agricultural authority
adopts the consolidation plan (Zusammenlegungsplan). Since 1977, this
has had to be published within three years of the final decision to
provisionally transfer parcels of land (section 7a(4) of the Federal
Agricultural Proceedings Act). The adoption of the plan is an
administrative act which is supported by maps and other technical
data, and whose main function is to determine the compensation due to
the landowners who are parties to the proceedings. The Provincial Act
includes the following regulations on this matter:
- "When compensatory parcels are being determined, regard shall be had
to the wishes of the parties directly concerned in so far as this can
be done without infringing statutory provisions or interfering with
important public interests served by the consolidation scheme"
(section 91(1));
- "Any landowner whose land is included in the consolidation scheme
... shall be entitled to compensation corresponding to [its] value
... in the form of other land included in the [same] scheme"
(section 27(1));
- "No one may, against his will, be allocated compensatory parcels
which he cannot cultivate without relocating his farmhouse or
substantially changing the nature of his farm" (section 28(1)).
An implementing decree (Zusammenlegungsverordnung), likewise of 1911,
further provides that:
- the ratio between value and area of the compensation parcels shall
be the same as for the lands transferred or to be transferred
(section 108);
- the proportions of orchard, field and meadow shall generally remain
the same (section 109);
- as far as possible, the compensatory parcels shall be adjacent and
so shaped as to facilitate cultivation, and their orientation shall be
the same as that of the lands surrendered or to be surrendered
(section 110);
- their length and width shall be in proportion (section 110);
- the average distance between them and the farmhouse shall not as a
rule be greater than that between the farmhouse and the lands
transferred or to be transferred (section 114).
47. Financial compensation may be paid for differences in value
not exceeding 5% of the compensation due (sections 27(2) and 29(2) of
the Provincial Act).
The provincial legislation does not provide for any financial
compensation for damage which landowners who have successfully
challenged the lawfulness of compensation received in land suffer
before a final consolidation plan comes into force.
3. The agricultural authorities
48. The first-instance authority in Upper Austria is the District
Agricultural Authority, which is a purely administrative body. The
higher authorities are the Provincial Board, established at the Office
of the Provincial Government (Amt der Landesregierung), and the
Supreme Board, set up within the Federal Ministry of Agriculture and
Forestry (Bundesministerium für Land- und Forstwirtschaft).
Decisions (Bescheide) of the District Authority can be challenged by
way of appeal (Berufung) to the Provincial Board, whose decision is
final except where it has varied the decision in question and where
the dispute concerns one of the issues listed in section 7(2) of the
Federal Agricultural Authorities Act, such as the lawfulness of the
compensation in the event of land consolidation; in such cases an
appeal lies to the Supreme Board.
In Austrian law the land reform boards are classified as boards whose
members include judges (Kollegialbehörden mit richterlichem Einschlag)
and which constitute a kind of "specialised administrative tribunal".
49. The Provincial Board has eight members, all appointed by the
Government of the Land (section 5(2) and (4) of the Federal
Agricultural Authorities Act), viz.:
- one Land civil servant, who is legally qualified (rechtskundig), and
acts as chairman;
- three judges;
- a legally qualified Land civil servant with experience in land
reform, who acts as rapporteur;
- a senior Land civil servant (Landesbeamter des höheren Dienstes)
with experience in agronomic matters;
- a senior Land civil servant with experience in forestry matters;
and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act.
50. The Supreme Board likewise has eight members (section 6(2) and
(4) of the Federal Agricultural Authorities Act), viz.:
- one legally qualified senior civil servant from the Federal Ministry
of Agriculture and Forestry, who acts as chairman;
- three members of the Supreme Court;
- a legally qualified senior civil servant from the Federal Ministry
of Agriculture and Forestry with experience in land reform, who acts
as rapporteur;
- a senior civil servant from the Federal Ministry of Agriculture and
Forestry with experience in agronomic matters;
- a senior civil servant from the Federal Ministry of Agriculture and
Forestry with experience in forestry matters; and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act.
The judicial members are appointed by the Federal Minister of Justice,
and the others by the Federal Minister of Agriculture and Forestry.
51. Section 52 of the General Administrative Procedure Act, which
is referred to in sections 5(2) and 6(2) of the Federal Agricultural
Authorities Act, provides:
"1. If it becomes necessary to take expert evidence, the authority
shall rely on the services of the official experts
(Amtssachverständige) attached to it or put at its disposal.
2. However, by way of exception, the authority may also consult other
suitable persons sworn as experts if no official experts are available
or if it becomes necessary having regard to the particular
circumstances of the case. ..."
52. Members of land reform boards are appointed for five years and
may be re-appointed (section 9(1) of the Federal Agricultural
Authorities Act). They cease to hold office before the expiry of their
term if, inter alia, they no longer satisfy the conditions of
appointment (section 9(2)). Any member may, at his own request, be
relieved of his office on health grounds or for professional reasons
which prevent him from properly discharging his duties (section 9(3)).
If a judicial or civil-servant member is suspended from duty by
decision of a disciplinary tribunal, he shall automatically also be
suspended from duty as a member of a land reform board (section 9(4)).
53. The members of these boards discharge their duties
independently and are not subject to any instructions (section 8 of
the Federal Agricultural Authorities Act and Article 20(2) of the
Federal Constitution). The executive can neither set aside nor vary
their decisions (section 8 of the Federal Act and Article 12(2) of the
Federal Constitution - see paragraph 37 above). The decisions can be
challenged in the Administrative Court (section 8 of the Federal Act).
54. The pattern of organisation described above was the outcome of
a legislative change in 1974 following a judgment of the
Constitutional Court in the same year.
In the Constitutional Court's view, the land reform boards as
constituted under the 1950 Act could not be regarded as being
independent and impartial tribunals within the meaning of
Article 6 § 1 (art. 6-1) of the Convention - their members included
at that time a Minister from the Federal Government (in the case of
the Supreme Board) or the relevant provincial government (in the case
of the provincial boards), and the other members could be dismissed at
any time by the relevant authorities (judgment of 19 March 1974,
Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974,
vol. 39, no. 7284, pp. 148-161).
The new legislation excluded from the boards anyone who was a member
of either the Federal Government or a provincial government,
introduced provisions governing the term of office and the dismissal
of members and provided for appeal to the Administrative Court
(sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities
Act 1974).
4. Procedure before land reform boards
55. Procedure before the land reform boards is governed by the
Federal Agricultural Proceedings Act (see paragraph 38 above),
section 1 of which stipulates that the General Administrative
Procedure Act shall apply - except for one section of no relevance in
the instant case - subject to the variations and additional provisions
made in the Federal Act.
The boards are responsible for the conduct of the proceedings
(section 39 of the General Administrative Procedure Act). By
section 9(1) and (2) of the Federal Act, the boards take their
decisions after a private hearing. This is normally attended by the
parties, who may consult the file (section 17 of the General
Administrative Procedure Act). The parties may appear in person or be
represented (section 9(3) of the Federal Act). The chairman may call
witnesses and, in order to obtain information, civil servants who
contributed to the decision at first instance and to the preparation
of the decision (section 9(5)).
Hearings begin with a report by the rapporteur; the board then
clarifies the subject-matter of the dispute by hearing evidence from
the parties and the witnesses and by looking at the legal and economic
situation in detail (eingehend) (section 10(2)). It proceeds on the
basis of the facts found by the authority below, but can also order
further investigations to be made by that authority or by one or more
of its own members (section 10(1)). The parties must be able to
acquaint themselves with the findings made as a result of the taking
of evidence (Beweisaufnahme) and to submit their comments
(section 45(3) of the General Administrative Procedure Act).
The boards deliberate and vote without the parties being present.
After discussing the outcome of the hearing, the rapporteur submits
conclusions (Antrag); anyone wishing to submit different conclusions
(Gegen- und Abänderungsanträge) must give reasons for them
(section 11(1) of the Federal Act). The chairman determines the order
in which the conclusions are put to the vote (ibid.). The rapporteur
votes first, followed by the judges and then the other members,
including the chairman, who votes last and has a casting vote if the
votes are divided equally (section 11(2)).
If an appeal is brought - within the prescribed two weeks
(section 7(3)) - and is held to be admissible, the appropriate board
will, if it considers the findings of fact so defective that a new
hearing appears to be unavoidable, quash the disputed decision and
remit the case to the authority below; otherwise it will determine the
merits of the case itself (section 66(2) and (4) of the General
Administrative Procedure Act). It may vary either the operative part
of the impugned decision or the reasons given for the decision
(section 66(4)).
Boards must determine cases without undue delay (ohne unnötigen
Aufschub) and in any event not later than six months after an
application has been made to them (section 73(1)). If the board's
decision (Erkenntnis) is not notified to the parties concerned within
that time, the parties may apply to the higher authority, which will
thereupon acquire jurisdiction to determine the merits
(section 73(2)). If the latter authority fails to give a decision,
jurisdiction passes - on an application by the interested party - to
the Administrative Court (Article 132 of the Federal Constitution and
section 27 of the Administrative Court Act).
Reasons must be given for the boards' decisions, which must summarise
clearly (klar und übersichtlich) the findings of the investigation,
the assessment of the evidence, and the ruling - on the basis of that
material - on the legal issues arising in the case (sections 58(2) and
60 of the General Administrative Procedure Act). Decisions are sent to
the parties; a board may, however, choose to give its decision
forthwith (section 13 of the Federal Act).
5. Appeals to the Constitutional Court and the Administrative Court
56. The decisions of land reform boards can be challenged in the
Constitutional Court. The latter reviews whether there has been any
infringement of an applicant's rights under the Constitution and
whether any decree (Verordnung) unauthorised by statute law or any
unconstitutional statute or international treaty unlawful
(rechtswidrig) under Austrian law has been applied (Article 144 of the
Federal Constitution).
57. As an exception to the general rule laid down in
Article 133(4) of the Federal Constitution, section 8 of the Federal
Agricultural Authorities Act provides for an appeal to the
Administrative Court against the decisions of land reform boards.
Application may be made to the Administrative Court before or after an
application to the Constitutional Court, which, if it rules that there
has been no infringement of the right relied on in the application to
it, will refer the case to the Administrative Court if the applicant
so requests (Article 144(3) of the Federal Constitution).
Under Article 130 of the Federal Constitution, the Administrative
Court hears determines applications alleging the unlawfulness of an
administrative act (Bescheid) or coercion (Befehls- und Zwangsgewalt)
against an individual or the breach by a competent authority of its
duty to take a decision. It also hears appeals against decisions by
boards whose members include judges - such as the land reform boards -
where such jurisdiction is conferred on it by statute (see
paragraphs 48 and 54 above).
If the Administrative Court does not dismiss the application as
unfounded, it will quash the decision appealed against; it determines
the merits itself only where the relevant authority has failed in its
duty to give a decision (section 42(1) of the Administrative Court Act
(Verwaltungsgerichtshofgesetz)).
When reviewing the lawfulness of an administrative act or of a
decision by a board whose members include judges, the Court does so on
the basis of the facts found by the authority concerned and solely in
the light of the complaints made, unless the authority has acted ultra
vires or procedural requirements have not been complied with
(section 41 of the Administrative Court Act). In this connection the
Act specifically provides that the Court shall quash the act appealed
against - on grounds of procedural irregularity - where the facts the
administrative authority held to have been established are
contradicted in a vital respect by the file, or where they are
incomplete in such a respect or where there has been a failure to
comply with rules which, if they had been correctly applied, might
have resulted in a different decision (section 42(2)(3) of the
aforementioned Act).
If, during the consideration of a case, grounds emerge which were
previously unknown to the parties, the latter must be given an
opportunity to be heard by the court, which must adjourn the
proceedings if necessary (section 41(1) of the Act).
Procedure consists mainly in an exchange of pleadings (section 36),
followed (except in certain cases specified in the Act) by a hearing
inter partes, which will normally be held in public (sections 39
and 40).
PROCEEDINGS BEFORE THE COMMISSION
58. In their application of 3 April 1979 to the Commission
(no. 9616/81), Johann and Theresia Erkner alleged, inter alia, an
infringement of their right to a hearing within a reasonable time
within the meaning of Article 6 § 1 (art. 6-1) of the Convention,
and of their right of property, as guaranteed by Article 1 of
Protocol No. 1 (P1-1). They also contended that they had not had
a fair hearing and invoked Articles 8 and 14 (art. 8, art. 14)
of the Convention, but subsequently they did not maintain their
submissions on those points.
Following Johann Erkner's death on 22 June 1983, his farm passed to
his daughter and son-in-law, Theresia and Josef Hofauer. Having
become the sole owners, Josef and Theresia Hofauer expressed the wish,
as the applicants' successors, that the proceedings should continue.
On 8 March 1984, the Commission decided to grant their request.
Theresia Erkner also wished to remain a party to the proceedings as an
applicant.
59. The Commission declared the application admissible on
9 March 1984. In its report of 24 January 1986 (made under Article 31
of the Convention) (art. 31), it reached the conclusion that there had
been a breach of Article 6 § 1 (art. 6-1) of the Convention
(unanimously) and of Article 1 of the First Protocol (P1-1) (eleven
votes to one).
The full text of the Commission's opinion and of the two separate
opinions contained in the report is annexed to this judgment.
FINAL SUBMISSIONS TO THE COURT
60. At the hearing on 20 October 1986, the Court was asked
- by the Government "to hold that in the present case the provisions
of Article 6 § 1 (art. 6-1) of the Convention as well as the
provisions of Article 1 of Protocol No. 1 (P1-1) have not been
violated and that therefore the facts underlying the dispute do not
indicate any breach by the Republic of Austria of the Convention";
- by the Commission's Delegate to confirm the Commission's findings
that there had been a breach of both Article 6 (art. 6) of the
Convention and Article 1 of Protocol No. 1 (P1-1).
Counsel for the applicants referred to his memorial of 18 August 1986,
in which he asked the Court, inter alia, to concur with the Commission
and find that the Republic of Austria had been responsible for a
human-rights violation.
AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION
61. The applicants claimed that their case had not been heard
within a "reasonable time"; that the land reform boards were not
independent and impartial tribunals; and that the Provincial Board
sat in private in March 1986. They relied on Article 6 § 1
(art. 6-1) of the Convention, which provides:
"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 Government maintained that there had been no breach. For its
part, the Commission considered that the length of the proceedings had
exceeded a "reasonable time"; it did not give an opinion on the
applicants' other submissions.
1. Applicability of Article 6 § 1 (art. 6-1)
62. The Forstern-Pöndorf agricultural consolidation plans
concerned, inter alia, land belonging to the Erkner and Hofauer
families, which was taken from them in exchange for land previously
belonging to other owners. The applicants contested - and continue to
contest - the lawfulness of the compensation obtained. Any decision -
whether favourable or unfavourable - by the authorities dealing with
the matter consequently affected, affects or will in the future affect
their property rights. The outcome of the proceedings complained of
is accordingly "decisive for private rights and obligations" (see the
Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, § 94, and
the Sramek judgment of 22 October 1984, Series A no. 84, p. 17, § 34),
so that Article 6 § 1 (art. 6-1) applies in the instant case; the
Government, moreover, conceded this.
2. Compliance with Article 6 § 1 (art. 6-1)
(a) "Independent and impartial tribunal" - "public hearing"
63. Before the Court, the applicants cited the fact that the
hearings before the Provincial Board in March 1986 were not held in
public; they also contended that the land reform boards were not
independent and impartial. As regards the latter contention, they
relied on the organisational charts of the Federal Ministry of
Agriculture and Forestry and the Office of the Provincial Government
of Upper Austria to point to the existence of hierarchical links
between the civil-servant members, the participation in the vote by
civil servants responsible for preparing expert opinions, and the
short term of office (five years).
These were new complaints. They were not raised as such before the
Commission and were not based on the facts as found by the Commission
within the framework fixed by its decision on admissibility. That
being so, the Court has no jurisdiction to entertain them (see in
particular, mutatis mutandis, the Bozano judgment of 18 December 1986,
Series A no. 111, p. 27, § 62).
(b) "Reasonable time"
(i) Period to be considered
64. In civil proceedings, the "reasonable time" referred to in
Article 6 § 1 (art. 6-1) normally begins to run from the moment the
action was instituted before the "tribunal" (see, as the most recent
authority, the Deumeland judgment of 29 May 1986, Series A no. 100,
p. 26, § 77); it is conceivable, however, that in certain
circumstances the time may begin to run earlier (see the Golder
judgment of 21 February 1975, Series A no. 18, p. 15, § 32).
In the instant case, the applicants had recourse to the appropriate
tribunals after 4 April 1973, when the decision of 10 August 1970 on a
provisional transfer was served on them (see paragraphs 13-18 above).
They had made their objections to the District Authority itself,
however, as early as August 1970, although it has not been possible to
establish the exact date (see paragraph 12 above). The Court concurs
with the Commission in inferring that the dispute ("contestation") to
be determined arose on or around 10 August 1970, which accordingly
marks the beginning of the period to be taken into consideration (see,
mutatis mutandis, the König judgment of 28 June 1978, Series A no. 27,
p. 33, § 98).
65. As to the close of the period, the Government argued before
the Commission that the determination of civil rights as mentioned in
Article 6 § 1 (art. 6-1) does not necessarily imply a final judgment.
They maintained that there had been an initial provisional
determination of the parcels of land to be allotted to the applicants
and then a series of decisions which steadily improved the applicants'
position.
Like the Commission, the Court is not convinced by this argument.
It has consistently held in relation to the application of
Article 6 § 1 (art. 6-1) that the period whose reasonableness falls to
be reviewed takes in the entirety of the proceedings in issue,
including any appeals (see, inter alia, the above-mentioned Deumeland
judgment, ibid.). That period accordingly extends right up to the
decision which disposes of the dispute ("contestation") (see the
Guincho judgment of 10 July 1984, Series A no. 81, p. 13, § 29).
In the instant case, the proceedings are still pending. Consequently,
the length of time to be considered already exceeds sixteen and a half
years (10 August 1970 - 24 March 1987).
(ii) Relevant criteria
66. The reasonableness of the length of proceedings is to be
assessed according to the particular circumstances and having regard
to the criteria stated in the case-law of the Court, especially the
degree of complexity of the case, the applicants' behaviour and the
conduct of the relevant authorities (see, inter alia, the Buchholz
judgment of 6 May 1981, Series A no. 42, pp. 15-16, § 49, and the
Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66,
p. 11, § 24).
67. Any land consolidation is by its nature a complex process.
Usually - and quite legitimately - the proper valuation of parcels of
land to be surrendered and to be received in exchange is at the
forefront of the landowners' concerns. The difficulties inherent in
such an assessment are often exacerbated by farmers' traditional
attachment to their fields and meadows. Furthermore, the operation is
designed to increase the profitability of holdings and develop the
infrastructure of the area concerned; it therefore affects the
interests not only of individuals but also of the community as a
whole.
The consolidation in dispute concerned many people, including
thirty-eight landowners, and covered 266 hectares (see paragraph 9
above). As soon as the initial measures were adopted, the applicants
asserted that they were being required to exchange land of excellent
quality for mediocre plots (see paragraph 12 above). This was
essentially a question of fact, to be resolved by obtaining relevant
information such as the area of the parcels of land and their use,
yield capacity, geographical situation and so forth. After the
successful appeals by the Erkners and the Hofauers, however, the
appropriate authorities were under a duty to draw up a new plan. No
doubt - as the Government conceded - they were not obliged to start
completely afresh, but it was necessary for them first to give each of
the landowners concerned a hearing.
In these circumstances, the application of the law appears to have
raised issues of fact of considerable complexity.
68. In the Government's submission, the applicants did their
utmost to prevent or delay a decision on the merits, notably by taking
advantage of every avenue of appeal available to them. In particular,
the Government claimed that they were wrong to apply several times to
a higher body, thereby interrupting the work of the lower authority.
The Court does not accept this submission.
It points out, in the first place, that it has consistently held that
applicants cannot be blamed for making full use of the remedies
available to them under domestic law (see, mutatis mutandis, the Eckle
judgment of 15 July 1982, Series A no. 51, p. 36, § 82). In the
instant case, as the Commission rightly pointed out, the remedies
resorted to were mostly successful (see paragraphs 17, 20, 21, 22, 25,
28 and 31 above).
As for the applications seeking rulings from the higher authority
instead of the one having jurisdiction at lower instance, the law
allowed the applicants to make these once six months had elapsed (see
paragraph 55 above). In each case, they in fact waited considerably
longer - one year, seven months and nineteen days; eight months and
twenty-two days; and eleven months and one day (see paragraphs 21, 22
and 23 above); and only one of their appeals failed - because the
lower authority had taken a number of steps and, in the view of the
higher authority, was not responsible for the delay (see paragraphs 23
and 24 above).
It nonetheless remains true that some of their subsequent actions,
which are somewhat difficult to understand, must have contributed to
prolonging the proceedings - namely their objection to the
installation of a drainage system and their request to have part of
their land exempted from consolidation (see paragraphs 25, 26, 32 and
33 above). At all events, the applicants' behaviour constitutes an
objective fact which cannot be attributed to the respondent State and
which must be taken into account for the purpose of determining
whether or not the reasonable time referred to in Article 6 § 1
(art. 6-1) has been exceeded (see, mutatis mutandis, the
above-mentioned Eckle judgment, ibid.).
69. As to the competent authorities, the Court notes that, in
accordance with the law, they had initiated the consolidation process
of their own motion and that they were responsible for the conduct of
it (see paragraphs 42 and 55 above). Further and more particularly,
they had decided as early as August 1970 on a provisional transfer of
the land concerned (see paragraphs 13-18 above). They were
accordingly under a special duty to act expeditiously. The Austrian
legislature, moreover, itself recognises the existence of such an
obligation: it has retained in relation to land-consolidation
proceedings the general rule that a decision must be made within six
months (see paragraph 55 above) and in 1977 enacted a provision
whereby consolidation plans must be published at the latest three
years after a final decision on provisional transfer (see paragraph 46
above).
Several of the periods of time in the instant case fail to comply with
this obligation. Considering, first, the appeal proceedings against
the provisional transfer: even if, as the Government suggested, the
applicants bear some responsibility for the delay in serving the
transfer decision on them (see paragraph 13 above), it is difficult to
understand why this should have taken almost two years and eight
months. The same is true, at least partly, of the subsequent appeal
proceedings which ended on 25 November 1975 (see paragraphs 14-17
above): as the Commission rightly noted, these proceedings could have
been concluded earlier if the agricultural authorities had accepted
the Administrative Court's decision of 21 September 1973 confirming
that a right of appeal existed. The authorities' refusal necessitated
a second judgment by the Administrative Court, which was not delivered
until 23 June 1975 - that is to say one year and nine months after the
first decision.
On the other hand, the Court does not judge the appeal
proceedings concerning the first two consolidation plans to have been
of undue length - about twelve and eleven months respectively
(3 June 1976 - 31 May 1977 and 22 January - 29 December 1980: see
paragraphs 20-22 above); but the same cannot be said of the
proceedings in the appeal against the third plan, which extended over
almost two years and eleven months (23 August 1982 - 16 July 1985: see
paragraphs 25-29 above). It may be that none of the various stages is
inordinately long in itself, but their combined length is certainly
excessive.
The most striking feature, however, is the time taken by the relevant
authorities to adopt and publish a new plan after the setting aside of
an earlier one: more than two years and six months for the second
plan (31 May 1977 - 18 December 1979: see paragraphs 20-21 above);
approximately one year and seven months for the third plan
(29 December 1980 - 27 July 1982: see paragraphs 22 and 24 above); and
more than one year and four months for the fourth plan, which is still
awaited (31 October 1985 - 24 March 1987: see paragraph 31 above).
Such lengthy periods are unacceptable.
70. In all, the proceedings complained of have already taken more
than sixteen and a half years (see paragraph 65 above). Such a length
of time is unreasonable in the circumstances of the case, having
regard notably to the special duty to act expeditiously entailed by
the provisional transfer of land. Doubtless the case was not of the
easiest and the applicants themselves were responsible for some of the
procrastination, but a number of delays are nonetheless attributable
to the authorities dealing with the case. As a result of these
delays, viewed together and cumulatively, the applicants' case was not
heard within a reasonable time, as required by Article 6 § 1 (art. 6-1).
II. ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)
71. In the applicants' submission, the provisional transfer of
their land in 1970 interfered with their right of property. They
claimed that they had still not received the compensation in land to
which they were entitled under the provincial legislation and that
they had on this account suffered an "annual loss of yield" amounting
to 50,000 schillings over the period 1971-1984 and to 30,000
schillings thereafter. They alleged a breach of Article 1 of
Protocol No. 1 (P1-1), which provides:
"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."
The Government challenged this contention, whereas the Commission
accepted it in substance.
72. There has indisputably been an interference with the
applicants' right of property as guaranteed in Article 1 of the
Protocol (P1-1) (see the Marckx judgment of 13 June 1979, Series A no. 31,
p. 27, § 63): on 10 August 1970, their land was allocated to other
landowners, who were parties to the consolidation scheme, or else used
for communal measures or facilities, and they have not so far secured,
by a final decision, the compensation in kind stipulated by the
provincial legislation (see paragraphs 13, 18, 20, 22, 25, 28, 29, 31
and 33 above).
73. It remains to be determined whether this interference
contravenes Article 1 of Protocol No. 1 (P1-1).
This provision "comprises three distinct rules". The first rule, set
out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of peaceful enjoyment of property;
the second rule, contained in the second sentence of the same
paragraph, covers deprivation of possessions and makes it subject to
certain conditions; and the third rule, stated in the second
paragraph, recognises that States are entitled, amongst other things,
to control the use of property in accordance with the public interest.
The Court has to consider the applicability of the last two rules
before determining whether the first one has been complied with.
However, the three rules are not "distinct" in the sense of being
unconnected: the second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the general
principle enunciated in the first rule (see, as the most recent
authority, the AGOSI judgment of 24 October 1986, Series A no. 108,
p. 17, § 48).
74. The Court notes first of all that the Austrian authorities did
not effect either a formal expropriation or a de facto expropriation
(see the Sporrong and Lönnroth judgment of 23 September 1982, Series A
no. 52, p. 24, §§ 62-63). The transfer carried out in August 1970 was
a provisional one; only the entry into force of a consolidation plan
will make it irrevocable (see paragraph 45 above). The applicants may
therefore recover their land if the final plan does not confirm the
distribution made at the earlier stage of the proceedings.
Accordingly, it cannot be said that the applicants have been
definitively "deprived of their possessions" within the meaning of the
second sentence of the first paragraph of Article 1 (P1-1).
Nor was the provisional transfer essentially designed to restrict or
control the "use" of the land (second paragraph of Article 1) (P1-1),
but to achieve an early restructuring of the consolidation area with a
view to improved, rational farming by the "provisional owners" (see
paragraph 45 above). The transfer must therefore be considered under
the first sentence of the first paragraph of Article 1 (P1-1).
75. For the purposes of this provision, the Court must inquire
whether a proper balance was struck between the demands of the
community's general interest and the requirements of protecting the
fundamental rights of the individual (see the above-mentioned Sporrong
and Lönnroth judgment, p. 26, § 69).
76. It should first be recalled that more than sixteen years have
already elapsed since the provisional transfer (10 August 1970 -
24 March 1987: see paragraph 13 above) without the applicants' having
received, under a final consolidation plan, the compensation in land
provided for by law.
According to the Government, the length of the proceedings is not a
matter for consideration under Article 1 of Protocol No. 1 (P1-1)
if the Court has already ruled it to have been in breach of
Article 6 § 1 (art. 6-1) of the Convention. Such an argument is
inconsistent with the Court's case-law, from which it is apparent that
one and the same fact may fall foul of more than one provision of the
Convention and Protocols (see, for example, the Airey judgment of
9 October 1979, Series A no. 32, p. 17, §§ 31-33). Moreover, the
complaint made under Article 6 § 1 (art. 6-1) can be distinguished
from the complaint relating to Article 1 of the Protocol (P1-1). In the
former case, the question was one of determining whether the length of
the consolidation proceedings had exceeded a "reasonable time",
whereas in the latter case their length - whether excessive or not -
is material, together with other elements, in determining whether the
disputed transfer was compatible with the guarantee of the right of
property.
77. It should also be pointed out that the relevant provincial
legislation did not permit any reconsideration of the provisional
transfer, notwithstanding the applicants' successful appeals against
the consolidation plans. Nor does it provide for the possibility of
compensating the applicants financially for the loss they may have
sustained on account of the forced exchange of their land for other,
inferior land pursuant to the provisional transfer (see
paragraphs 34-36 and 47 above).
78. The Court is not unmindful of the legislature's concern,
however. In authorising a provisional transfer at an early stage of
the consolidation process, its intention is to ensure that the land in
question can be continuously and economically farmed in the interests
of the landowners generally and of the community. Furthermore,
although the applicants lost their land in consequence of the transfer
decided on in 1970, they received other land in lieu, even if they are
not satisfied with it. The applicable system, however, suffers from a
degree of inflexibility: before the entry into force of a
consolidation plan, it provides no means of altering the position of
landowners or of compensating them for damage they may have sustained
in the time up to the final award of the statutory compensation in
land.
79. In the circumstances of the present case, therefore, the
necessary balance between protection of the right of property and the
requirements of the public interest was lacking: the applicants, who
remain uncertain as to the final fate of their property, have been
made to bear a disproportionate burden. There is no need at this
stage to determine whether they have suffered actual prejudice (see
the above-mentioned Sporrong and Lönnroth judgment, p. 28, § 73).
80. The Court accordingly finds that there has been a breach of
Article 1 of Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
81. The applicants are claiming compensation in the sum of 760,000
schillings for pecuniary damage in respect of the period from 1971
until 1986 and reimbursement of lawyers' fees, which they put at
582,099.10 schillings.
The Government and the Commission have not yet expressed a view on the
matter, which is consequently not ready for decision. It must be
reserved and the further procedure fixed, due regard being had to the
possibility of an agreement between the respondent State and the
applicants (Rule 53 §§ 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 § 1 (art. 6-1)
of the Convention as regards observance of the "reasonable time"
requirement;
2. Holds that it has no jurisdiction to entertain the other
complaints made by the applicants under this provision;
3. Holds that there has been a breach of Article 1 of Protocol No. 1
(P1-1);
4. Holds that the question of the application of Article 50 (art. 50)
of the Convention is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Government to submit to the Court, within the
forthcoming two months, their written observations on the said
question and, in particular, to notify the Court of any friendly
settlement which they may reach with the applicants;
(c) reserves the further procedure and delegates to the President of
the Chamber power to fix the same if need be.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 23 April 1987.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar