AS TO THE ADMISSIBILITY OF
Application No. 17592/90
by Alois and Herma DANNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 21 July 1988 by
Alois and Herma DANNER against Austria and registered on 21 December
1990 under file No. 17592/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, a married couple, are Austrian citizens living
in Ohlsdorf. They are represented by Mr. E. Proksch, a lawyer
practising in Vienna.
It follows from the applicants' statements and the documents
submitted by them that they are running a farm in Ohlsdorf.
According to a decree of 16 February 1984 issued by the District
Agricultural Authority (Agrarbezirksbehörde - "the District Authority")
in Gmunden, the applicants' real estate property of some 20 hectares
was included in consolidation proceedings.
On 8 October 1986, the District Authority ordered the provisional
transfer of the newly allotted plots to the farmers participating in
the consolidation proceedings.
The applicants lodged an appeal (Berufung) with the Provincial
Land Reform Board (Landesagrarsenat - "the Provincial Board") of Upper
Austria. They claimed that the new property provisionally allotted to
them was not as valuable as their prior property and that the yield per
year and hectare would be some AS 70 000 lower.
On 25 June 1987, the Provincial Board rejected the appeal as
being unfounded. It is stated in the decision that the provisional land
transfer had been effected in accordance with the law. The question of
whether or not the newly allotted land constituted adequate
compensation could only be examined later once the consolidation plan
had been adopted. Finally it is stated that the total new area which
was provisionally allotted to the applicants covered 61% of their
former property and that there was nothing to show that the attribution
clearly ran counter to the principles of the Agricultural Land Planning
Act (Flurverfassungs-Landesgesetz), according to which the transfer had
to be effected in a manner as to guarantee the best possible
cultivation of the newly allotted property. Even the private expert
opinion submitted by the applicants had not shown or even alleged that
this principle was not respected.
The applicants then lodged a constitutional complaint. They
complained that in their case, the Provincial Board had not been
correctly composed as two of the board members, namely H-P. Th., a
judge of the District Court, and K. Pf., a civil servant, had
participated in their capacity as substitute members while no
explanation was given that and why the ordinary members which they
replaced had been prevented.
Furthermore they alleged a violation of their property right.
They claimed that Section 22 of the Agricultural Land Planning Act
which authorises the agricultural authorities to proceed to provisional
land transfers was unconstitutional in that it allows to provisionally
allocate to a farmer less valuable land than taken from him without
providing for compensation in respect of the financial losses thereby
incurred.
The Provincial Board submitted observations in reply arguing
inter alia, that there was no proof for the applicant's allegation that
the provisional transfer caused them damages. In any event, so it is
pointed out, the applicants could make a request for compensation which
had to be addressed to the District authorities.
On 11 December 1987, the Austrian Constitutional Court
(Verfassungsgerichtshof) refused to admit the constitutional complaint
for decision on its merits. Applicant's counsel states that the
decision was communicated on 29 January 1988. It is stated in the
decision that the alleged violations, if they existed, were only the
consequence of an alleged wrong application of non-constitutional, i.e.
ordinary law. To this extent the constitutional complaint did not raise
any issues of constitutionality. In so far as the constitutional
complaint raised issues that could be examined by the Constitutional
Court, they were in view of the court's constant jurisprudence not
offering any prospect of success.
Finally it is pointed out that the matter could be brought before
the Administrative Court (Verwaltungsgerichtshof).
COMPLAINTS
The applicants point out that in the domestic proceedings, they
had shown by way of an expert opinion that the land provisionally
allotted to them would yield considerably less than the property taken
from them. They submit that Austrian law does not provide any remedy
in this respect, that means they can neither obtain a rectification of
the provisional transfer nor money compensation for the loss of yield.
Consequently they consider that the provisional transfer violates their
right to the peaceful enjoyment of possessions as guaranteed by Article
1 of the first Protocol.
The applicants furthermore argue that they did not have an
effective remedy against the District Authorities' decision relating
to the provisional transfer of property. The District Authority is
however in their opinion no tribunal in the sense of Article 6 of the
Convention. They submit that the District Authorities as well as the
Provincial Board act both as executive, expert and judge and can
therefore not be considered to be impartial and independent within the
meaning of Article 6 of the Convention.
THE LAW
1. The applicants have first submitted that their property right as
guaranteed by Article 1 of the First Protocol (P1-1) is violated
because first, the land provisionally allotted to them yields less than
their previous land and second, they cannot claim compensation in this
respect.
Even assuming that domestic remedies were exhausted although the
applicants have not shown that they made a request for compensation as
suggested in the Provincial Board's observations submitted to the
Austrian Constitutional Court, the Commission considers, for the
following reasons, that the present complaint can be rejected as being
manifestly ill-founded.
Article 1 of the First Protocol (P1-1) reads:
"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 to use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission first notes that the provisional transfer can
neither be regarded as a "deprivation of possessions" nor as a measure
controlling the "use" of the land. It therefore has to be considered
under the first sentence of the first paragraph of Article 1 (Art. 1)
(Eur. Court H.R., Poiss judgment of 23.4.1987, Series A No. 117, p. 108
para. 64).
For the purposes of this provision, it has to be examined 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 (loc. cit., p. 108 para. 65).
In the Poiss judgment cited an inbalance was found to exist in
view of the fact that the domestic proceedings had dragged on for
nearly twenty-four years without the adoption of a final consolidation
plan.
In the present case the applicants have not shown that the
alleged loss of yield is of such importance that even if the final
consolidation plan were adopted within a reasonable period of time, it
constituted an individual and excessive burden (cf. Eur. Court H.R.,
Sporrong and Lönnroth judgment of 23.09.1982, Series A No. 52, p. 28,
para. 73).
There is consequently no appearance of a violation of the
provision in question and this part of the application therefore has
to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants furthermore invoke Article 6 (Art. 6) of the
Convention arguing that they did not have access to an independent and
impartial tribunal within the meaning of the provision invoked by them.
The Commission notes however that the present complaint was not
raised before the Austrian Constitutional Court as the applicants had
limited themselves in their constitutional complaint to criticising the
participation in the decision making of the Provincial Board of
substitute members.
They have not shown also to have raised their present complaint
that the Provincial Board allegedly acts both as executive, expert and
judicial organ.
In these circumstances, they cannot be considered to have
exhausted domestic remedies and to this extent the application has to
be rejected in accordance with Articles 26, 27 para. 3 (Art. 26, 27-3)
of the Convention.
The Commission notes in addition that the applicants had the
possibility to have their case decided by the Austrian Administrative
Court.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy