AS TO THE ADMISSIBILITY OF
Application No. 13811/88
by E. et al.
against Austria
The European Commission of Human Rights sitting in private
on 12 July 1989, the following members being present:
MM. C. A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 January 1988
by E. et al., against Austria and registered on 29 April 1988 under
file No. 13811/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens residing at Obritzberg,
Lower Austria. They are represented by Rechtsanwalt Dr. Richard Wandl
of St. Pölten.
The applicants are partly the persons, partly legal
successors of the persons who brought Application No. 9273/81 which
the Commission declared admissible on 9 March 1984 (cf. D.R. 36 p.
5). That case concerned the organisation of the agricultural
authorities before which land consolidation proceedings under the
Lower Austrian Land Planning Act (Flurverfassungsgesetz) were conducted
in respect of the applicants' land. The Commission considered that
the organisation of these authorities infringed Article 6 para. 1 of
the Convention (cf. Comm. Report 3.7.85) whereas the European Court of
Human Rights finally found no violation of Article 6 para. 1 in this
respect (cf. judgment of 23 April 1987, Series A no. 117 p. 3 et
seq.). The present case concerns the same proceedings. The
applicants now complain of their length.
The development of these proceedings can be summarised as
follows:
On 30 July 1973 the Lower Austrian Agricultural District
Authority (Agrarbezirksbehörde) published a consolidation plan for
Obritzberg which included the applicants' land. The applicants lodged
an appeal with the Provincial Land Reform Board (Landesagrarsenat),
claiming that they had not received land compensation as provided for
in the Lower Austrian Agricultural Land Planning Act. The grounds of
appeal differed from one applicant to the other according to the way
in which the consolidation plan affected each individual's property.
The Provincial Board gave its decisions on 26 and 27 May 1975,
after hearing the parties and several other landowners affected by the
changes the applicants were seeking. It made a number of variations
in the land compensation awarded to the applicants.
The applicants then appealed to the Supreme Land Reform Board
(Oberster Agrarsenat). On 6 October 1976, the Supreme Board allowed
the appeals of the applicants E. and S. to the extent that
they were complaining of a danger that some of the parcels of land
allotted to them in compensation for their original land might be
eroded by water, and it consequently ordered that a number of drainage
measures should be taken; for the rest, their appeals were dismissed,
as were those of the remaining applicants in their entirety.
The applicants then lodged complaints with the Constitutional
Court (Verfassungsgerichtshof). In particular they claimed that they
had been deprived of their right to a decision by the lawful judge
(gesetzlicher Richter - Article 83 (2) of the Federal Constitution) and
that there had been an infringement of their right of property.
In judgments of 1 and 28 February and 19 March 1980 the
Constitutional Court rejected the complaints as unfounded. At the
applicants' request, it referred the cases to the Administrative Court
(Verwaltungsgerichtshof) for the latter to determine whether any
non-constitutional rights had been infringed.
In the Administrative Court the applicants challenged the
lawfulness of the land compensation awarded to them. They claimed inter
alia that the requirements of the Lower Austrian Agricultural Land
Planning Act and of the Code of General Administrative Procedure
(Allgemeines Verwaltungsverfahrensgesetz) had not been complied with.
On 11 and 25 November 1980 the Administrative Court held that
there had been a breach of the applicants' procedural rights; it
dismissed the other complaints. The judgments, which were worded in
similar terms, stated inter alia that the Supreme Board had ordered a
number of measures to be taken - drainage of the land allocated to the
applicants E. S. and H. and construction of an access
way in the case of the predecessors of the applicants Haftner - without
specifying all the works that were necessary, without giving
sufficient reasons for its decision and without having established all
the material facts. In the case of the applicants E., the Board had
obtained an opinion (Stellungnahme) from its agronomist member on the
problem of the erosion of certain land but had not communicated it to
the applicants, who had accordingly not been able to comment on it.
The Administrative Court consequently quashed the impugned decisions
on these points on grounds of procedural irregularity and remitted the
cases to the Supreme Board.
On 2 December 1981 the Supreme Board rejected the appeal of
the applicants Haas as inadmissible. These applicants have not
complained to the Constitutional and Administrative Courts of this
decision, which accordingly became final.
On 3 March 1982 the Supreme Board allowed the appeals of the
applicants E. S. and H., finding in each case on the
basis of new expert evidence that there were consequences of general
measures which could influence the lawfulness of the applicants' land
compensation. As the Supreme Board was not competent to deal with
these general measures as such, it referred the three cases to the
Agricultural District Authority.
This authority held hearings on 17 December 1982, 16 December 1983
and 20 January and 4 October 1984. On 27 March 1985 it adopted a plan
of general measures involving modification of road construction and
canalisation in order to avoid water erosion on the applicants'
compensation parcels. The applicants appealed against this decision,
inter alia, on the grounds that the measures adopted were
insufficient. On 1 July 1986 the Provincial Land Reform Board partly
allowed the appeals in this respect and referred the case back to the
Agricultural District Authority. By decisions of 19 July 1988
(applicants H.) and 11 October 1988 (two decisions concerning the
applicants S.) this authority ordered certain additional
measures. All applicants (including the applicants E.) appealed
again to the Provincial Board contending that the new measures
unfavourably affected their compensation parcels. These appeals were
still pending on 16 June 1989.
COMPLAINTS
The applicants complain that in the above agricultural land
consolidation proceedings their civil rights have not been determined
within a "reasonable time" as required by Article 6 para. 1 of the
Convention. They invoke in particular the Poiss judgment of the Court
(Eur. Court H.R., judgment of 23 April 1987, Series A No. 117, p. 84
et seq.).
THE LAW
The applicants complain of the length of agricultural land
consolidation proceedings to which their properties were subjected.
They invoke Article 6 para. 1 (Art. 6-1) of the Convention which,
insofar as relevant, reads as follows:
"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 proceedings concerning all applicants started in July 1973.
Those concerning the applicants E. S. and H. are still pending and
thus have lasted about 16 years. The Commission finds that further
clarification concerning the length of the proceedings is necessary
and that the respondent Government, and subsequently the applicants
concerned, should be invited to submit observations in writing on the
admissibility and merits of this part of the application.
As regards the applicants A. and M. H., the Commission notes
that the proceedings in their case were terminated by the decision of
the Supreme Land Reform Board of 2 December 1981 against which they
did not appeal to the Constitutional Court or the Administrative
Court. Even assuming that such appeals could not have provided
redress concerning the length of proceedings, and that for this reason
the applicants were not, under Article 26 (Art. 26) of the Convention,
required to lodge such appeals for the purpose of exhausting the
domestic remedies in this respect, the Commission notes that they did
not introduce the present application until 14 January 1988, i.e.
more than six months after the termination of the domestic
proceedings. They thus have not complied with the time-limit
stipulated by Article 26 (Art. 26) of the Convention. The complaint
of these applicants must therefore be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
1. DECLARES THE APPLICATION INADMISSIBLE insofar
as it was introduced by A. and M. H.;
2. DECIDES TO ADJOURN THE PROCEEDINGS as regards
the remaining applicants.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)