CASE OF HALL v. AUSTRIA

FIRST SECTION

CASE OF HALL v. AUSTRIA

(Application no. 5455/06)

JUDGMENT

STRASBOURG

6 March 2012

FINAL

06/06/2012

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Hall v. Austria,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Nina Vajić, President,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 14 February 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 5455/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mrs Marianne Hall (“the applicant”), on 19 January 2006.

2. The applicant was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

3. The applicant complained, in particular, about the length of proceedings concerning a permit to make use of a mountain hut and grazing rights.

4. On 28 February 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1949 and lives in Bad Dürheim, Germany. She was born and grew up in Schwarzenberg (Austria), but moved to Germany when she married. Her father held shares as a member of the Alpe Rotenbach Agricultural Association (Agrargemeinschaft - hereafter “AA”).

6. The AA is a public law body, which owns several plots of land in Schwarzenberg. Membership of the AA is expressed in shares which comprise 86 grazing rights (Weiderechte) and ten hut rights (Hüttenrechte).

7. After their father’s death in 1993, the applicant and her four sisters inherited his property. In the subsequent succession proceedings, the Bezau District Court transferred the title to a share of the deceased’s property to the applicant (Einantwortung) which included three and three-quarters grazing rights and one hut right of the AA Rotenbach. She also inherited three grazing rights relating to another AA, the Alpe Obere, from her father.

8. On 14 April 1994 the Bregenz District Agricultural Authority (Agrarbezirks­behörde - DAA) rejected, according to the statutes of the AA, the applicant’s requests to be granted the necessary permits to make use of her grazing rights. These decisions were based on the fact that the applicant did not have her ordinary residence (ordentlicher Wohnsitz) in one of the court districts of Bezau, Dornbirn or Bregenz. The Land Vorarlberg has altogether six court districts.

9. On 29 September 1994 and 3 October 1994, the Vorarlberg Regional Land Reform Board (Landesagrarsenat - “the Regional Board”) dismissed the applicant’s appeals.

10. The Constitutional Court declined to deal with the applicant’s joint complaint for lack of prospect of success. Subsequently, the Administrative Court dismissed the applicant’s complaint on 23 May 1996 because she did not fulfil the criteria set out in the statutes of the AA.

11. At the beginning of 1997 the applicant sold the three grazing rights relating to the Alpe Obere to Mr Z., another member of this AA.

12. On 10 December 1997 the applicant requested the DAA to hold that the provision of the statutes of the AA concerning the inheritance of grazing and hut rights was void and that no authoritative permit was necessary for the enjoyment of these rights. In the alternative she requested the DAA to grant her the permit.

13. On 15 December 1997 the DAA rejected the applicant’s alternative request as res judicata, because it had already decided on the issue on 14 April 1994. The DAA did not decide on the two main requests.

14. On 30 June 1998 the Regional Board, after having held a hearing, dismissed her appeal against this decision.

15. On 7 October 1998 the Constitutional Court declined to deal with the complaint.

16. On 16 December 1999 the Administrative Court quashed the Regional Board’s decision, holding that European Community Law should be taken into account following Austria’s accession to the European Union. Furthermore, the DAA should have decided first on the applicant’s main requests, before being competent to decide on the alternative request.

17. Subsequently, the Regional Board gave a decision on 21 June 2000, but failed to serve this new decision on the applicant.

18. Thereupon, on 15 December 2000, the applicant filed a request for transfer of jurisdiction (Devolutionsantrag).

19. On 7 March 2001 the Supreme Land Reform Board (Oberster Agrarsenat – Supreme Board) granted the applicant’s request for transfer of jurisdiction and quashed the DAA’s decision of 15 December 1997, because the DAA had not been competent to decide on the alternative request prior to the main request.

20. Due to the DAA’s and the Reform Board’s failure to render new decisions, the applicant filed two further requests for transfer of jurisdiction on 27 September 2001and 18 December 2002.

21. On 24 March 2003 the applicant’s counsel requested access to the applicant’s files at the Supreme Board. This request was met, with the exception of two documents. One concerned a legal expert opinion from the Auditor-General’s Department (Finanzprokuratur) to the Federal Chancellery (Bundes­kanzleramt), concerning different proceedings initiated by the applicant against the State. The second document was a preparatory report by the Regional Board prior to one of its sessions.

22. On 4 June 2003 the Supreme Board, after hearing the applicant’s counsel, again granted the transfer of jurisdiction and thus found itself competent to adjudicate the case. It rejected the applicant’s main requests put forward on 10 December 1997. After having declared the alternative request a res non judicata, the Supreme Board dismissed the request, because it found that the statutory provisions of the AA were not discriminatory under national or European Community law. It held that limiting the right to property according to the owners’ ordinary residence was in the common interest and constituted a pressing need in order to guarantee the good administration and cultivation of the land. Finally, the Supreme Board also dismissed the applicant’s request for inspection of two documents in the file. It reiterated that the first document, a legal opinion prepared by the Auditor-General’s Department and addressed to the Legal Service in the Federal Chancellery, concerned civil proceedings pending between the applicant and the Republic of Austria. It was in essence advice by the legal representative, namely the Auditor-General’s Department, to a party to the civil proceedings which it represented and for this reason confidential. The second document could not be inspected because, being a draft for a decision to be deliberated on by the Regional Board, it was covered by the confidentiality of deliberations (Beratungs­geheimnis).

On 23 July 2003 the applicant filed a complaint with the Constitutional Court against the decision (Bescheid) of the Supreme Board of 4 June 2003 and, on 4 September 2003, the Constitutional Court granted suspensive effect to the complaint.

23. The Supreme Board submitted observations on 18 September 2003.

24. On 24 November 2003 the applicant replied to the observations.

25. On 3 December 2003 the Constitutional Court dismissed the applicant’s request to be granted access to the two documents, for the same reasons as had been given by the Supreme Board. The Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success on 23 February 2004. It found that the decision of the Supreme Board did not breach the applicant’s constitutional rights. It was not unreasonable that the members of an AA found it necessary for the purpose of the common administration of their alp to provide in the statutes adopted by them a requirement of close residence of all its members. Subsequently, on the applicant’s request, the Constitutional Court transferred the case to the Administrative Court.

26. The Administrative Court invited the applicant on 27 April 2004 to supplement her complaint and, on 11 June 2004 the applicant did so. The Supreme Board submitted observations on 3 August 2004.

27. On 7 July 2005 the Administrative Court dismissed the applicant’s complaint. It found that the Supreme Board had acted correctly when rejecting the requests for a declaratory decision as that matter could also have been decided in proceedings on the applicant’s request of transfer of grazing rights. As to the decision on the alternative request, the Administrative Court found that the request for granting transfer of the grazing rights was not inadmissible as res judicata, because, following the accession of Austria to the European Union, the authorities had to take their decision not only on the basis of domestic but also EU law. Assuming that the transfer of shares of an AA was covered by the freedom of movement of capital, restriction of this freedom was justified if it pursued an aim in the general interest and applied in a non-discriminatory manner.

28. Referring to the case-law of the European Court of Justice, the Administrative Court found that a requirement as to residence as laid down in the AA’s statutes was not a priori discriminatory in nature as it was intended to achieve the specific objectives of preserving agricultural communities, viable farms and the promotion of reasonable use of the available areas. AAs and the structure of cultivation created by them were means to achieve these objectives as they secured an efficient and reasonable cultivation and use of the available land. The active common use by several persons entitled to do so was a particular feature of an AA and it could function properly and in accordance with its aim, only with the active participation of its members. Such participation became all the more difficult the greater the distance between the land of the AA on the one hand and the place of residence of the entitled person on the other. In such circumstances, also a feeling of affinity for the community property and an understanding for necessary investments as well as other interests could be lost.

29. The Administrative Court further considered that, for ensuring the proper administration and running of an AA, a less strict means for achieving this aim than a residence clause for members was not conceivable. Finally, the Administrative Court found that the fact that the person acquiring the right, but who was refused a permit by the agricultural authority in case of inheritance, had to transfer his or her share right at the usual local estimated value to persons entitled to an acquisition struck a fair balance between compensation for the material value of his/her share right and the public interest in securing that the use the land could be exercised within the agricultural community.

This decision was served on the applicant’s counsel on 1 August 2005.

II. RELEVANT DOMESTIC LAW

30. The Vorarlberg Agricultural Land Planning Act (Flurverfassungsgesetz), governing inter alia agricultural associations, defines agricultural associations as follows:

Ҥ 32

(1) An agricultural association consists of the totality of the respective owners of the real-estate properties to which participation rights in a real-estate property of an agricultural association attach (ancestral real-estate properties), including those persons who are entitled to person (“walzende”) shares.”

31. An agricultural association has the legal status of a public-law corporation, but is not endowed with the typical sovereign competences; it is thus not a state institution, but an association of private persons. Its tasks are to manage, cultivate, preserve and improve the property of the association. The members of the association, which are those holding shares in the association, have rights and duties vis-à-vis the other members and the property of the association. The rights of members include participation in elections and the right to use the common economic facilities and real-estate properties. The duties include payment of contributions for proper management of the association, and for the construction and maintenance of the common facilities.

32. A member’s free disposition concerning their shares is largely excluded, and the transfer of ancestral real-estate properties and the transfer by legal transaction of the shares attaching to specific persons are subject to supervision by the agricultural authority.

33. Section 1 of the 1968 statutes of the AA Alpgemeinschaft Rotenbach sets out its purpose and reads as follows:

“(1) The AA Alpengemeinschaft Rotenbach is a public law corporation within the meaning of the Agricultural Land Planning Act ... It consists of all persons who hold grazing rights in respect of the corporation’s commune property. The seat of the AA is Schwarzenberg.

(2) The purpose of the Alpengemeinschaft Rotenbach is the common administration as well as the use and cultivation, by separate groups of occupants (Besetzergruppen), of the alps Klausberg-Hinterstück, Rotenbach and Hochstätten including all business necessary for this purpose.”

34. Sections 3 and 4 of the statutes contain the following rules on membership. They read, insofar as relevant. As follows:

“Section 3

(1) The Alpgemeinschaft Rotenbach consists of 86 grazing rights and 10 hut rights on Alpe Klausenberg. Persons who hold a grazing right (members) must be registered by name, date of birth, place of residence and number of grazing rights in the book of shares kept by the Alp Committee.

(2) Grazing rights (shares) are acquired by decision of the Alp Committee.

Section 4

(1) Grazing rights can only be acquired by contract (Rechtsgeschäft unter Lebenden) by persons who run a farm situated in the court districts of Bezau, Dornbirn and Bregenz.

(2) The acquisition of grazing rights through inheritance is possible without any restriction for spouses, children and siblings, who reside in one of the court districts mentioned under para. (1). In case the heir is not related in that way to the deceased (Erblasser), the rules on acquisition by contract apply. If the heir is not entitled to acquire the grazing and hut rights, these rights must be sold to a person who is qualified to acquire them at the local customary price (ortsüblicher Schätzpreis). Until the rights are acquired by that person, they are administered by the committee. During this time membership (use) is dormant. If the membership is dormant for more than five years the AA may apply to court for having the shares sold at an auction.

(3) When grazing rights are sold members of the AA have a right of pre-emption....

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

35. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

36. The Government argued that the applicant did not exhaust domestic remedies as she could have filed a request for a transfer of jurisdiction much earlier.

37. This is disputed by the applicant who maintained that she made proper use of the remedies at her disposal.

38. The Court reiterates that a request for transfer of jurisdiction under Section 73 of the General Administrative Procedure Act (Devolutions-antrag) constitutes, in principle, an effective remedy which has to be used in respect of complaints about the length of administrative proceedings (see Egge v. Austria (dec.), no. 74159/01, 9 October 2003). In the Court’s view, a detailed examination of whether the applicant could have made more efficient use of the remedy by using it at other stages of the proceedings, would overstretch the duties incumbent on an applicant pursuant to Article 35 § 1 of the Convention (see Kern v. Austria, no. 14206/02, § 49, 24 February 2005, and, mutatis mutandis, Wohlmeyer Bau GmbH v. Austria, no. 20077/02, § 45, 8 July 2004). This is all the more so, as the applicant used the remedy not only once but on three occasions, namely on 15 December 2000, on 27 September 2001 and again on 18 December 2002. The Court concludes that the applicant complied with her obligation to exhaust domestic remedies. Thus, the Government’s objection of non-exhaustion is dismissed.

39. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties submissions

40. The applicant submitted that the subject matter of the present case was not of a complex nature as all facts of the case had been clarified in the proceedings on her previous application to the DAA and all the agricultural authorities had to do in the proceedings at issue was to decide one additional legal aspect of the case which could have been done very quickly. Instead the proceedings were conducted at such a slow pace that the applicant had been compelled to make use of a remedy for accelerating the proceedings three times.

41. The Government contended that the length of proceedings had complied with the reasonable time requirement. There had been no periods of inactivity. Moreover the applicant had caused delays by filing requests to remit the case to the Administrative Court only after the delivery of the negative decisions of the Constitutional Court instead of filing the alternative request already in her complaints to the Constitutional Court. Given the complexity of the case, the length of proceedings should be regarded as reasonable.

2. The Court’s assessment

42. The period to be taken into consideration began on 15 December 1997, when the DAA rejected the applicant’s request for a declaration that no authoritative permit by the agricultural authorities was necessary for the transfer of the grazing and hut rights, as it was at that moment that a “dispute” arose within the meaning of Article 6 § 1 of the Convention (see König v. Germany, 28 June 1978, § 98, Series A no. 27 and Morscher v. Austria, no. 54039/00, § 38, 5 February 2004). The proceedings ended on 1 August 2005 when the Administrative Court’s decision was served on the applicant’s lawyer. The proceedings therefore lasted for seven years seven months and sixteen days and during this period the case was dealt with by three levels of jurisdiction (namely the Supreme Land Reform Board, the Administrative Court and the Constitutional Court).

43. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

44. The Court considers that the proceedings at issue, even if, as the applicant pointed out, there was no particular need to take further evidence, were of some complexity as they involved difficult questions of law. However, this cannot justify the whole length of the proceedings.

45. There is nothing to indicate that the applicant’s conduct contributed to the length of the proceedings. The mere fact that the applicant had not filed together with her complaint to the Constitutional Court also a request to transfer the case to the Administrative Court, if the Constitutional Court would decline to deal with it, did not in the Court’s view cause any particular delay. The Constitutional Court declined to deal with the applicant’s case on 23 February 2004 and already on 27 April 2004 the Administrative Court invited the applicant to supplement her complaint.

46. As regards the conduct of the domestic authorities the Court considers that the proceedings progressed at a very slow pace while pending before the agricultural authorities. The applicant filed on three occasions requests for transfer of jurisdiction in order to accelerate the proceedings and all requests were allowed because the authorities against which the requests were directed had failed to give their decisions in time.

47. In sum, the Court finds that the applicant’s case has not been determined within a reasonable time and there has, accordingly, been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

48. The applicant complained that the refusal of the agricultural authorities to grant the transfer of the grazing and hut rights to her infringed her right to inherit. She relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Admissibility

49. The Government argued that this complaint had been lodged out of time since the Administrative Court had already decided on the lawfulness of the refusal of the transfer of the grazing and hut rights on 23 May 1996 and this decision had not subsequently been contested by the applicant before the Court. Moreover, there had been no interference with the right to inherit since the applicant’s father was not the owner of the plot of land for which there was a right of use. It was rather owned by the agricultural community and thus he could not transfer such property rights. Even if there had been an interference, the statutes of the AA required a permit from the agricultural community for the transfer of moving shares. This measure served legitimate aims in the public interest, namely to secure the future existence of farmers, to secure a distribution of the land permitting the development of viable farming units and the harmonious cultivation of the area and the landscape and to promote a reasonable use of available areas while preventing natural dangers. Furthermore this measure was in line with the proportionality principle and was necessary. Since the applicant only wanted to use the hut during the holidays, this would clearly be in conflict with these interests.

50. The applicant contested these arguments. She submitted that she had exhausted domestic remedies. Furthermore, the Bezau District Court had considered the grazing and hut rights as civil rights that could be transferred by inheritance, as in numerous previous cases.

The Court observes that the Administrative Court did not uphold the argument of the DAA and the Regional Board that the applicant’s additional request of 10 December 1997 was res judicata. Rather, it found that it raised an additional legal aspect which had only come up after Austria’s accession to the European Union and which had to be examined by the agricultural authorities. Having regard to the reasoning of the Administrative Court in its decision of 7 July 2005 the Court considers that the question of the lawfulness of the agricultural authorities refusal to grant transfer of the grazing and hut rights to the applicant was still an issue in the proceedings conducted after 23 May 1996 and they did not concern a separate and different subject matter. It is, however, not in dispute that as regards the supplementary request of 10 December 1997 the applicant exhausted domestic remedies. The Court therefore dismisses the Government’s objection of non-exhaustion.

51. The Court notes further that according to the Court’s case law, inheritance rights may in principle fall within the scope of Article 8 (see Marckx v. Belgium, judgment of 13 June 1979, §§ 51-53; Camp and Bourimi v. The Netherlands, judgment of 3 October 2000, § 35). Moreover, the Court has held that family life comprises also interests of a material kind such as obligations in respect of maintenance and the institution of the reserved portion of an estate (reserve héréditaire) (see Pla and Puncernau v. Andorra, judgment of 13 July 2004, § 26).

52. In the present case, however, the applicant’s right to inherit was not interfered with, since the District Court had already transferred (Einantwortung) her deceased father’s property to her. By this act the applicant and her four sisters each acquired one fifth of their father’s property. Prior to this property transfer, the specific grazing rights at issue were assigned to the applicant according to a procedural protocol (Abhandlungs­protokoll). Since the applicant could – and concerning some of her grazing rights, did – sell her grazing rights to a member of the AA, who fulfilled all statutory requirements, there was no infringement of her right to inherit.

53. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

54. The applicant further complained under Article 6 that her right to equality of arms was infringed, because the Supreme Land Reform Board denied her the right to consult specific parts of the court files. Under the same provision she complained that the Regional and Supreme Land Reform Board were not independent and impartial because of the participation of civil servants as expert members of these boards. Under Article 14 read in conjunction with Article 8 and Article 1 Protocol No.1 she complained that the rules under which transfer of the grazing right to he had been refused, namely the residence clause, were discriminatory.

55. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

56. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

58. The applicant claimed non-pecuniary damage in the amount of 5,000 euros (EUR).

59. The Government contested that claim as being excessive.

60. Having regard to the violation found the Court finds that the applicant has sustained non-pecuniary damage which cannot be compensated by the finding of a violation. Assessing the claim on an equitable basis, it awards EUR 4,000 under this head, plus any tax that may be chargeable on that amount.

B. Costs and expenses

61. The applicant claimed EUR 20,330.24 plus value-added tax (VAT) for costs and expenses incurred before the domestic courts and EUR 2,289.60 plus VAT for costs incurred before the Court.

62. The Government contested also the claim for costs as being excessive.

63. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.

64. Regarding the domestic proceedings, the Court notes that only the costs for the requests for transfer of jurisdiction (see paragraphs 18 and 20 above) were incurred in order to prevent the excessive length of the proceedings. According to the bill of fees submitted by the applicant the costs for these remedies amounted in total to EUR 552.81 plus VAT. The Court awards this sum in full plus any tax that may be chargeable to the applicant on this amount.

65. In respect of the Convention proceedings the bill submitted by the applicant gives an amount of EUR 2,289.60 plus VAT. The Court notes that only the complaint concerning the length of the proceedings was declared admissible. The Court considers it reasonable to award the applicant the sum of EUR 1,500

In sum the Court awards the applicant EUR 2,052.81 under the head of costs and expenses plus any tax that may be chargeable to the applicant on this amount.

C. Default interest

66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint about the length of proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 552.81 (five hundred and fifty two euros eighty one cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred before the domestic courts;

(iii) EUR 1,500 (one thousand fife hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred before the Court;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 March 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenNina Vajić
RegistrarPresident

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