CASE OF PFEIFENBERGER v. AUSTRIA

FIRST SECTION

CASE OF PFEIFENBERGER v. AUSTRIA

(Application no. 6379/08)

JUDGMENT

STRASBOURG 

4 October 2011

This judgment is final but it may be subject to editorial revision.

In the case of Pfeifenberger v. Austria,

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

Peer Lorenzen, President,
Elisabeth Steiner,
Khanlar Hajiyev, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 13 September 2011,

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

PROCEDURE

1. The case originated in an application (no. 6379/08) 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 two Austrian nationals, Mr Josef Pfeifenberger and Mrs Annemarie Pfeifenberger (“the applicants”), on 28 January 2008.

2. The applicants were represented by Mr A. Pirkner, a lawyer practising in Tamsweg. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.

3. On 27 August 2009 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 (Article 29 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1949 and 1952 respectively and live in Muhr.

5. The applicants were members of an agricultural association (Agrargemeinschaft). The agricultural estate of which they are joint owners, accounts for 835 of a total of 3654 shares in that association. The association covers some 377 hectares of land. According to the Government access to some of the land, situated at high altitudes, is difficult and is restricted for the major part of the year due to weather conditions. The applicants contested this. According to them access is possible for six to eight months per year.

6. On 3 June 1983 the applicants filed a request to end their membership, asking for the partition of their property from the remainder of the agricultural association’s land. On 1 September 1983 another member of the agricultural association, L., also filed a request for partition.

A. The initial proceedings on the admissibility of the applicants’ partition request

7. The first stage of partition proceedings serves to establish whether the request can be admitted. A rough examination has to be carried out in order to assess whether the cultivation of other parts of the agricultural association and its overall economic needs would not be jeopardized by the partition. At the end of these proceedings the request is either dismissed or admitted. In the second case, the partition proceedings in the narrower sense will follow.

8. The Salzburg Regional Government acting as Agricultural Authority of First Instance (Landesregierung als Agrarbehörde I. Instanz, the “Agricultural Authority”) held hearings on both requests on 15 August 1984, 25 September and 17 December 1985, 5 February 1986 and 30 July 1986. Between hearings, expert opinions were commissioned.

9. The Agricultural Authority dismissed the applicants’ request for partition on 7 November 1986 while it had admitted the other owner’s request on 14 October 1986. Upon the applicants’ appeal and after having obtained further clarification from them, the Regional Land Reform Board (Landesagrarsenat, the “Regional Board”) quashed the impugned decision on 5 June 1987 and remitted the case back to the Agricultural Authority.

10. The Agricultural Authority obtained further expert opinions and held hearings on 16 March 1988 and 25 January 1989. It dismissed the applicants’ request for a second time on 2 January 1990.

11. The applicants appealed again. The Regional Board, having obtained further expert opinions in particular on the question how the partition would affect the association’s hunting activities, held hearings on 14 December 1990 and on 21 February 1992. On the latter date the Regional Board granted the appeal and decided that partition proceedings were to be instituted.

12. The agricultural association and some of its members lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). On 12 October 1992 the Constitutional Court declined to deal with the complaint, and transferred it to the Administrative Court (Verwaltungsgerichtshof) which dismissed it on 20 April 1993.

B. The partition proceedings in the narrower sense

13. The second stage of the proceedings concerns the partition itself. If the members of the agricultural association cannot agree to the partition plan, as in the present case, investigative proceedings have to be conducted, including surveying of the outer boundaries of the association, braking down the entire land of the association into quality sections, valuating the different sections and elaborating partition alternatives, each of which has to be evaluated by experts on forestry, farming, hunting and agricultural technology. If necessary, compensation for other members of the association has to be fixed. In the present case the partition proceedings were conducted jointly for the applicants’ request and for L.’s request.

14. As the Agricultural Authority failed to issue a decision within the statutory time-limit, the applicants applied for a transfer of jurisdiction (Devolutionsantrag) to the superior authority on 11 May 1994. The Regional Board allowed the application on 15 July 1994 and, consequently, became competent to conduct the proceedings.

15. Subsequently, the Regional Board carried out surveying measures between July 1995 and December 1996. On the basis of the results a hearing was held on 7 February 1997. Subsequently, ownership relations, which had been in place for many years, had to be established on order to draw the outer boundaries of the association. As a next step the land of the entire association had to be divided into quality sections. This involved the taking of expert opinions and on-site inspections which were carried out between July and September 1998. The applicants and other parties filed comments and objections. A number of hearings were also held. A hearing on 10 September 1999 concluded the valuation of the land involved. As a last step partition alternatives were established. Out of four alternatives initially presented, two were elaborated in more detail. An expert opinion on those two was discussed at a hearing on 14 February 2000. As a result further expert opinions were commissioned. The applicants then submitted detailed comments.

16. On 29 September 2000 the Regional Board held a further hearing and, having discussed the expert opinions, dismissed the applicants’ request for partition.

17. On 12 March 2003 the Constitutional Court quashed the Regional Board’s decision, finding that some of its members had not been independent and impartial in that they had acted at the same time as decision-makers and as experts.

18. Thereupon the Regional Board resumed proceedings and appointed new experts whose opinions were discussed at a hearing on 24 April 2004. Following a further on-site inspection and further hearings, it issued a partition scheme on 18 March 2005. The applicants appealed, complaining that the scheme provided for the imposition of easements on their share of land. The agricultural association and some of its member also appealed.

19. On 7 December 2005 the Supreme Land Reform Board (Oberster Agrarsenat) amended the Regional Board’s decision as regards one particular easement, but dismissed the remainder of the appeals. It found inter alia that the easements in respect of the property at issue had been established by a sales contract concluded in 1988. The valuation of the land at issue was correct and moreover the applicants had not objected to it at the hearing before the Regional Board.

20. Subsequently the applicants lodged a complaint with Administrative Court on 3 February 2006. On 19 July 2007 the Administrative Court dismissed the complaint. The judgment was served on the applicants’ counsel on 3 August 2007.

THE LAW

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

21. The applicants 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...”

22. The Government contested that argument.

A. Admissibility

1. Compliance with the six-month time-limit

23. The Government argued that the initial proceedings on the admissibility of the applicants’ partition request were terminated by the Administrative Court’s judgment of 20 April 1993. In respect of these proceedings the application had not been submitted within the six-month time-limit laid down in Article 35 § 1 of the Convention.

24. The applicants contested the Government’s view. They contended that the partition proceedings, although divided into two stages, had to be considered as a whole.

25. The Court observes that in the initial proceedings the authorities have to carry out a preliminary examination of whether or not partition is at all possible without jeopardizing the economic aims of the agricultural association. If this appears to be the case they admit the request. The further partition proceedings serve to carry out a detailed assessment of all issues involved. The initial proceedings are a necessary precondition for the next stage of the proceedings which concern the partition itself. The Court therefore considers that the proceedings are closely linked to each other and have to be considered as a whole (see, mutatis mutandis, Wiesinger v. Austria, 30 October 1991, § 52, Series A no. 213, relating to land consolidation proceedings, which also consist of several stages, and are considered as a whole in respect of complaints about their length).

26. The Court therefore dismisses the Government’s objection that the applicants failed to comply with the six-month time-limit.

2. Compliance with the requirement to exhaust domestic remedies

27. Furthermore the Government submitted that the applicants had failed to exhaust domestic remedies. Firstly, they could and should have complained to the Constitutional Court about the duration of the proceedings. In that context the Government referred to the case-law of the Constitutional Court, in which it had found violations of Article 6 § 1 of the Convention on account of the length of the proceedings. Where the Constitutional Court found a violation, damages in respect of length of proceeding could be claimed in subsequent proceedings under the Official Liability Act.

28. Secondly, the Government argued that the applicants only once made use of the application for transfer of jurisdiction pursuant to section 73 of the General Administrative Proceedings Act. They did not make use of this remedy at all during the initial proceedings on the admissibility of their partition request and let more than one year go by at the stage of the partition proceedings before making their request on 11 May 1994. They did not make further use of this remedy although the case was pending before the Regional Board for about six years and, after its decision of 29 September 2000 had been quashed, was again pending before the Regional Board for a lengthy period.

29. The applicants asserted that they had duly exhausted domestic remedies. In this connection they submitted in particular that following their request for transfer of jurisdiction the case was pending before the Regional Board. However, according to the Constitutional Court’s case-law the possibilities of applying for a transfer of jurisdiction to the Supreme Land Reform Board were very limited.

30. The Court will first examine the Government’s argument that the applicants should have complained to the Constitutional Court about the length of the proceedings. According to the Court’s case-law States may either introduce remedies with have a preventive effect in respect of the duration of proceedings, or remedies with provide compensation for past breaches of that requirement. Although the first alternative is preferable, compensatory remedies may also be regarded as effective for the purpose of Article 35 § 1 of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-87, ECHR 2006‑V).

31. The Court notes that a Constitutional Court decision to the effect that the proceedings had lasted for an unreasonably long period has neither preventive nor compensatory effect in respect of the length of the proceedings, but has merely a declaratory effect. Such a remedy cannot be considered effective under the principles elaborated by the Court. Turning to the Government’s argument that the declaratory decision of the Constitutional Court may subsequently form the basis for claiming damages in official liability proceedings, the Court notes firstly that the Government did not provide any details, nor did they refer to any specific examples of case-law. The Court is therefore not required to examine whether a remedy requiring the applicant to conduct two sets of proceedings, one to obtain a declaratory decision by the Constitutional Court and a second to obtain damages, could possibly be regarded as an effective one. Moreover, the Court notes that the proceedings before the Constitutional Court itself took more than two years. The possibility referred to by the Government can therefore not be regarded as an effective remedy (see, VR-Bank Stuttgart eG v. Austria, no. 28571/06, §§ 30-32, 20 May 2010).

32. The Government further argued that the applicants had failed to duly make use of the request for transfer of jurisdiction under section 73 of the General Administrative Procedure Act. The Court reiterates that such a request constitutes, in principle, an effective remedy which has to be used in respect of complaints about the length of proceedings before administrative authorities (see Egger v. Austria (dec.), no. 74159/01, 9 October 2003). The applicant made use of the request for transfer of jurisdiction once. The Court has already held in similar cases that a detailed examination as to whether the applicants could have made more efficient use of that remedy by using it at other stages of the proceedings, would overstretch the duties incumbent on applicants pursuant to Article 35 § 1 of the Convention (see, mutatis mutandis, Kern v. Austria, no. 14206/02, § 49, 24 February 2005 and Klug v. Austria, no. 33928/05, § 31, 15 January 2009, both concerning land consolidation proceedings during which the applicants had successfully made use of the request for transfer of jurisdiction once or twice, respectively, and the Government had argued that, in addition, they should have done so at other stages of the proceedings). The Court sees no reason to reach another conclusion in the present case. It therefore dismisses the Government’s objection on non-exhaustion.

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

B. Merits

34. The period to be taken into consideration began on 7 November 1986 when the Agricultural Authority dismissed the applicants’ partition request, 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) and ended on 3 August 2007 when the Administrative Court’s judgment was served on the applicants. The proceedings therefore lasted for twenty years and almost nine months and came before four levels of jurisdiction.

35. The applicants argued that the present partition proceedings were less complex as regards the number of parties and the legal issues involved than land consolidation proceedings with which they have certain similarities. In their view the total length was inacceptable. They pointed out that since they were farmers the partition proceedings were particularly important for their economic existence.

36. The Government argued that partition proceedings were comparable to land consolidation proceedings and were by their nature very complex. In the present case this complexity was increased as a second member of the agricultural association had requested partition at the same time as the applicants and on account of the inaccessibility of the land which made surveying and on-site inspections difficult. Due to these circumstances the investigation proceedings lasted relatively long. However, other stages of the proceedings were conducted expediently, while the applicants contributed in many ways to the duration of the proceedings.

37. 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).

38. The Court, while acknowledging the complexity of proceedings such as the present ones, has frequently found violations of Article 6 § 1 of the Convention in cases raising similar issues (see, in particular, Walder v. Austria, no. 33915/96, § 28, 30 January 2001; Klug, cited above, § 37, both relating to land consolidation proceedigns which took twenty-two years and twenty years respectively).

39. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

40. There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1

41. The applicants complained under Article 1 of Protocol No. 1 that the excessive length of the proceedings and the imposition of easements on their property violated their right to peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1 which provides as follows:

“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.”

A. Admissibility

42. The Court notes that insofar as the applicants complain about the imposition of easements on their property the Supreme Land Reform Board in its decision of 7 December 2005 found that the easements at issue had already been pre-existing. The Court therefore considers that they have not been imposed in the partition proceedings and there is thus no interference with the applicants’ property in that respect.

43. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

44. Insofar as the applicants complain that the length of the proceedings violated their right to the peaceful enjoyment of their possessions, he Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

B. Merits

45. Having regard to its finding under Article 6 § 1 (see paragraph 40 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 on account of the length of the proceedings (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23). Moreover, the Court recalls that the eventual negative repercussions on an applicant’s property rights caused by the excessive length of proceedings may be analysed as a consequence of the violation of Article 6 § 1 of the Convention and taken into account for the award of just satisfaction under the latter provision (see Varipati v. Greece, no. 38459/97, § 32, 26 October 1999; Gavrielidou and Others v. Cyprus, no. 73802/01, § 54, 6 April 2006).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

46. 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

47. The applicants claimed 324,000 euros (EUR) under the head of pecuniary damage, arguing that they suffered loss of earnings (from hunting and forestry) over a period of more than twenty years. Moreover, the first applicant claimed EUR 220,000 in respect of non-pecuniary damage, submitting that the suffered from a depression as a result of the protracted proceedings. The second applicant claimed EUR 5,000 under this head.

48. The Government contested these claims. They asserted that the claims for pecuniary damage were wholly unfounded and that the applicants had failed to furnish any proof of the alleged loss of earnings. In respect of non-pecuniary damage the Government argued that the finding of a violation would provide sufficient just satisfaction.

49. The Court, notes that the applicants have not substantiated their claim regarding loss of earnings in any detail. In any case, it does not discern any causal link between the violation found and the pecuniary damage alleged. On the other hand, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicants jointly EUR 18,000.

B. Costs and expenses

50. The applicants submitted that they incurred costs of EUR 60,000 in the domestic proceedings of which they considered EUR 12,000 to be caused by the excessive length of the proceedings. Moreover, they claimed EUR 6,741.50 each for costs and proceedings incurred before the Court. The sums claimed include value-added tax (VAT).

51. The Government pointed out that only the costs of the request for transfer of jurisdiction were caused by the length of the proceedings. However, the applicants had failed to specify these costs. The costs claimed in respect of the proceedings before the Court were excessive.

52. 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 are reasonable as to quantum. In respect of the domestic proceedings the Court notes that this condition is fulfilled only in respect of the costs of the request for transfer of jurisdiction. As the applicants have failed to itemize these costs, the Court cannot make an award. The Court accepts, however, that unreasonable delays in proceedings may involve an increase in an applicant’s costs (see Klug, cited above, § 50; Kern, cited above, § 70 both with reference to Bouilly v. France, no. 38952/97, § 33, 7 December 1999). On an equitable basis, it awards the applicants jointly EUR 1,000 under this head. In respect of the Convention proceedings, having regard to the sums usually awarded in length of proceedings cases and making an assessment on an equitable basis, wards the applicants jointly EUR 2,000. In sum, the Court awards the applicants EUR 3,000 under the head of costs and expenses.

C. Default interest

53. 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 complaints concerning the excessive length of the 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 that there is no need to examine the applicants’ complaint in relation to the length of the proceedings under Article 1 of Protocol No. 1;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, EUR 18,000 (eighteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage and 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 4 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              André WampachPeer Lorenzen
Deputy RegistrarPresident

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