FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 35021/97 and 45774/99
by Max KOLB, Josef HOLAUS, Georg TAXACHER
and Georg WECHSELBERGER
against Austria
The European Court of Human Rights (First Section), sitting on 21 February 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrV. Zagrebelsky,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above applications lodged with the European Commission of Human Rights on 14 November 1996 and 15 September 1998, respectively and registered on 21 February 1997 and 29 January 1999, respectively,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the decision of 27 April 2000 to join the applications and to communicate them to the respondent Government,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicants Max Kolb, Josef Holaus, Georg Taxacher and Georg Wechselberger are Austrian nationals, who were born in 1938, 1942, 1948 and 1962, respectively, and are living in Stumm (Austria). They were represented before the Court by Mr E. Proksch, a lawyer practising in Vienna.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 7 July 1966 the Tirol Regional Government as the Agricultural Authority of First Instance (Landesregierung als Agrarbehörde erster Instanz - “the Agricultural Authority”) instituted land consolidation proceedings (Zusammenlegungsverfahren) involving property belonging to the first applicant, the second applicant’s mother, the third applicant and the fourth applicant’s father.
On 18 December 1974 the Agricultural Authority ordered the provisional transfer (vorläufige Übernahme) of compensatory parcels (Grundabfindung). While the applicants and their predecessors, respectively, lost the ownership over land formerly belonging to them, they acquired the provisional ownership of these compensatory parcels subject to the condition subsequent (auflösende Bedingung) that they would be dispossessed of them under the final consolidation scheme, if it did not confirm the allocation thereof to the applicants.
On 28 December 1980 the municipal council amended the area zoning plan (Flächenwidmungsplan) re-designating agricultural land which had, before 1974, belonged to the first applicant, the second applicant’s mother and to the fourth applicant’s father, as building land.
In February 1988 the second applicant took over his mother’s farm.
On 28 July 1988 the consolidation scheme (Zusammenlegungsplan) was issued by the Agricultural Authority confirming the situation created by the provisional transfer.
On 16 September 1988 the third applicant appealed against the consolidation scheme. The first and second applicant as well as the fourth applicant’s father did so on 19 September 1988.
In May, June and October 1989, the Provincial Land Reform Board (Landesagrarsenat - “the Provincial Board”), sitting in camera, held hearings on these appeals. Subsequently, the fourth applicant took over his father’s farm.
On 26 November 1990 all four applicants filed a request for transfer of jurisdiction to the Supreme Land Reform Board (Oberster Agrarsenat - “the Supreme Board”), which the latter dismissed on 27 February 1991.
1. As to the first applicant (Max Kolb)
On 18 April 1991 the Provincial Land Reform Board, after having held a further hearing, dismissed the first applicant’s appeal.
On 3 June 1991 the first applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) which refused to deal with the case and referred it to the Administrative Court (Verwaltungsgerichtshof) on 25 November 1991.
On 16 November 1993 the Administrative Court requested the Constitutional Court to review the constitutionality of section 15 § 1 of the Tirol Land Planning Act (Flurverfassungslandesgesetz), which provides that changes in value which occur after the provisional transfer cannot be taken into account in the determination of compensation.
On 13 October 1995 the Constitutional Court found that section 15 § 1 of the Tirol Land Planning Act was in conformity with the Constitution (see below - Relevant domestic law).
On 28 February 1996 the Administrative Court dismissed the first applicant’s complaint rejecting at the same time, in accordance with section 39 (2) no. 6 of the Administrative Court Act (Verwaltungs-gerichtshofgesetz), the applicant’s request for an oral hearing.
The Administrative Court found in particular that the calculation of compensation as regards the plots of land transferred to the municipality for building a street, had been carried out in a detailed and comprehensible manner and confirmed that the said compensation was in accordance with the relevant law. As to the applicant’s complaint that the re-designation of his land as building land had not been taken into account, the Administrative Court, referring to the Constitutional Court’s judgment of 13 October 1995, found that there were objective reasons for excluding compensation for a re-designation of land which occurred after the provisional transfer. The decision was served on 24 May 1996.
2. As to the second applicant (Josef Holaus)
On 18 April 1991 the Provincial Board, after having held a hearing, dismissed the second applicant’s appeal as being unfounded.
On 3 June 1991 the second applicant filed a complaint with the Constitutional Court which refused to deal with the case and referred it to the Administrative Court on 25 November 1991.
On 16 November 1993 the Administrative Court requested the Constitutional Court to review the constitutionality of section 15 § 1 of the Tirol Land Planning Act, which provides that changes in value which occur after the provisional transfer cannot be taken into account in the determination of compensation.
On 13 October 1995 the Constitutional Court found that section 15 § 1 of the Tirol Land Planning Act was in conformity with the Constitution (see below - Relevant domestic law).
On 28 February 1996 the Administrative Court quashed the Provincial Board’s decision as far as the second applicant was concerned. It found that the calculation of compensation as regards the plots of land transferred to the municipality for building a street was in accordance with the relevant law. As to the applicant’s complaint that the reclassification of his land as building land had not been taken into account, the Administrative Court, referring to the Constitutional Court’s judgment of 13 October 1995, found that there were objective reasons for excluding compensation for a re‑designation of land which occurred after the provisional transfer. However, it found that the Provincial Board had not given sufficient reasons for calculating the size of a particular part of the applicant’s property involved in the land consolidation proceedings. In this respect, the lawfulness of the compensation could not be assessed.
On 25 July 1996 the Provincial Board, after having held a hearing, rejected the second applicant’s appeal against the consolidation scheme as being inadmissible. It noted that according to the relevant legal provisions only the actual owner of the plots of land involved in the consolidation proceedings was entitled to file an appeal against the consolidation scheme. It found in this respect that a closer examination of the case had shown that in 1988 the second applicant’s mother had still been the owner of the land at issue. The second applicant and his mother had concluded a contract of transfer of land (Übergabevertrag) on 5 February 1988, but the conclusion of such a contract did not immediately transfer any property rights. According to established case-law, the transfer of the land only became effective on the day the competent court received the request to have the contract entered into the land register (Grundbuch). In the second applicant’s case the competent court received the request on 19 November 1991. Consequently, the second applicant had not been entitled to file an appeal in 1988.
On 11 September 1996 the applicant filed a complaint with the Constitutional Court arguing in particular that he had been the legal owner of the land already in 1988 and, therefore, had been entitled to file an appeal.
On 9 June 1997 the Constitutional Court refused to deal with the complaint and transferred it to the Administrative Court. On 6 October 1997 and on 20 November 1997 respectively, the applicant and the Provincial Board filed further comments.
On 10 December 1998 the Administrative Court dismissed the second applicant’s complaint, confirming the reasoning of the Provincial Board. It rejected the applicant’s request for an oral hearing. The decision was served on 22 January 1999.
3. As to the third and fourth applicants (Georg Taxacher and Georg Wechselberger)
On 18 April 1991 in the case of the third applicant, and on 20 June 1991 in the case of the fourth applicant, the Provincial Board - in both cases having held a hearing in camera - partly dismissed their appeals. The third applicant appealed in May 1991 and the fourth applicant in July 1991.
On 7 October 1992 the Supreme Land Reform Board dismissed the applicants’ further appeals. It found that the transfer of property to the municipality for building a street was in accordance with the law and that the applicants had been duly compensated. As to the fourth applicant’s complaint that the re-designation of his land as building land had not been taken into account, the Supreme Board noted that according to section 15 § 1 of the Tirol Agricultural Land Planning Act only a change of designation which occurred before the provisional transfer of land could be taken into account.
On 21 December 1992 the third applicant, and on 21 January 1993 the fourth applicant, filed a complaint with the Constitutional Court which transferred their appeals to the Administrative Court on 15 June 1993.
On 14 December 1995 and on 21 May 1996, respectively, the Administrative Court quashed the Supreme Board’s decision on the ground that the latter had given insufficient reasons for its calculation of compensation. However, as to the fourth applicant’s complaint about the alleged failure to take the re-designation of land into account, the Administrative Court, referring to the Constitutional Court’s judgment of 13 October 1995, found that there were objective reasons for excluding compensation for a re-designation of land which occurred after the provisional transfer.
On 6 November 1996 the Supreme Board, having held a public hearing, partly dismissed the applicants’ appeals.
On 31 January 1997 the applicants complained to the Constitutional Court which, on 16 June 1997, transferred both cases to the Administrative Court.
On 26 February 1998 the Administrative Court dismissed the applicants’ complaints. It also rejected their request for an oral hearing.
The Administrative Court found in particular that the Supreme Board had carried out the calculation of compensation in a detailed and comprehensible manner and confirmed its finding that the said compensation was in accordance with the relevant law. As to the fourth applicant’s complaint about the lack of compensation for land which had been reclassified as building land, the court recalled the Constitutional Court’s finding as to the constitutionality of section 15 § 1 of the Tirol Land Planning Act. The decision was served on 18 March 1998.
B. Relevant domestic law and practice
1. Composition of the agricultural authorities
A summary of the rules concerning the composition of the agricultural authorities may be found in the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, pp. 11-13, §§ 16-22). The relevant rules have not changed since.
2. Procedure of the agricultural authorities
According to section 9 §§ 1 and 2 of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz), agricultural authorities take their decisions after an oral hearing in the presence of the parties. It was the constant practice of the agricultural authorities to hold hearings in camera.
By virtue of legislation enacted in December 1993 (Bundesgesetzblatt 901/1993), hearings before land reform boards are now public.
3. Oral hearings before the Administrative Court
According to section 39 § 1 of the Administrative Court Act, the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time‑limit. Section 39 para. 2 (6) which was added to the Act in 1982 provides however that, notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing if it is apparent to the court, from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case.
4. Changes in value following an amendment to the area zoning plan
Section 15 § 1 of the Tirol Land Planning Act 1978 (Flurverfassungs-landesgesetz), insofar as relevant, reads as follows:
“If the value of plots changes due to a natural disaster or amendments to the area zoning plan after their evaluation, but before the transfer of compensation parcels, the plots are to be re-evaluated.”
The Constitutional Court, in its judgment of 13 October 1995, found that “transfer of compensation parcels” within the meaning of this section meant the provisional transfer as the ownership had already passed on, although being subject to the condition subsequent that the transferee would be dispossessed of the property under the final consolidation scheme, if it did not confirm the allocation. It noted that the question concerning the stage at which changes in value are no longer to be taken into account was also linked to the issue of who bears the risk of deterioration (Gefahrtragung). The Constitutional Court considered that it followed that if ownership was passed on by the provisional transfer, so also were the ensuing risks. This interpretation ensured that no one other than the new owner had to bear the risks of deterioration. Moreover, if the final consolidation scheme dispossessed the provisional owner of the compensation parcels, intermediate changes in value could again be taken into account. In conclusion, the Constitutional Court found that it was appropriate, in terms of risk bearing and user rights, to pass on the risk at the same time as passing ownership.
COMPLAINTS
1. The applicants complained under Article 6 § 1 of the Convention that the land consolidation proceedings involving their property lasted unreasonably long.
They further complained under Article 6 § 1 that none of the authorities or courts involved in the proceedings qualified as a tribunal. They alleged that the agricultural authorities did not qualify as tribunals: The Agricultural Authority was a wholly administrative body. Some of the members of the Provincial Board and the Supreme Board were also civil servants, who were appointed for a limited period. The provision ordering that they exercise their functions without being bound by any instructions could not sufficiently guarantee their independence and impartiality. Finally, the Constitutional Court and the Administrative Court did not qualify as tribunals due to the limited scope of their review. The third and fourth applicants also complained that the proceedings were not truly adversarial.
All four applicants complained that throughout the proceedings they did not have a public hearing before a “tribunal”.
2. The applicants also complained under Article 1 of Protocol No. 1 that the consolidation proceedings violated their right to property. They submitted that they were not sufficiently compensated, in particular as regards plots of land which were transferred to the municipality for the purpose of building a street. They also complained that the authorities did not take into account the re-designation of part of their land as building land after the provisional transfer.
3. In their observations of 16 October 2000 the applicants complained in addition that no remedy was available against the provisional transfer. They invoked Article 6 of the Convention and Article 1 of Protocol No. 1.
THE LAW
1. The applicants raised a number of complaints about the land consolidation proceedings involving their property. They invoked Article 6 § 1 of the Convention which, so far as material, reads as follows:
“1. 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. ...”
a. As regards the second applicant, the Government contended that Article 6 did not apply as he had only become the owner of the property at issue on 19 November 1991 when the competent court received his request to enter the contract transferring his mother’s land to him into the land register. It followed that the consolidation scheme of 28 July 1988 did not involve a determination of the applicant’s civil rights and obligations, nor did the subsequent proceedings which dealt with the question whether or not the applicant was a party to the proceedings.
The second applicant contests this view. He argued that he was a member of the consolidation committee as early as in 1971 and submits minutes of a meeting in which he is mentioned as such. Further, he asserted that the authorities acknowledged that he had succeeded his mother in running the farm and treated him as a party for years.
The Court reiterates that the applicability of the civil head of Article 6 depends on whether there was a dispute (contestation), over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question which must be civil in nature (see for instance the Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, § 22).
In the present case, the second applicant took over his mother’s farm in February 1988. Subsequently, he appealed against the consolidation scheme of August 1988. The competent authorities including the Administrative Court considered him as a party to the proceedings for almost eight years and dealt with the merits of his appeal concerning his compensation claims. It was only in July 1996, after its first decision had been quashed by the Administrative Court, that the Provincial Board found that the second applicant had not been entitled to file an appeal on the ground that the transfer of his mother’s land had only become effective in 1991 and that he had, therefore, not been entitled to file an appeal in 1988.
Thus, for years, there was a genuine and serious dispute over a civil right which, in the authorities own assessment, the second applicant was entitled to claim. Moreover, the Court considers that the question dealt with in the Provincial Board’s decision of 25 July 1996, namely whether the second applicant had already acquired ownership of his mother’s property in 1988 and was entitled to lodge an appeal is closely linked to the substance of his claim. The fact that the authorities eventually decided that the second applicant was not entitled to lodge an appeal is not sufficient to conclude that Article 6 is inapplicable.
In conclusion, the Court finds that Article 6 applies as regards the proceedings concerning the second applicant. The Court observes that the Government did not contest the applicability of Article 6 as regards the other applicants.
b. The applicants complained that the land consolidation proceedings involving their property lasted unreasonably long.
The Government submitted that 16 and 19 September 1988, respectively, have to be taken as the starting point for the purpose of calculating the length of the proceedings. It was only at that stage of the proceedings, when the applicants appealed against the land consolidation scheme, that a “dispute” within the meaning of Article 6 § 1 arose between the applicants and the authorities. The proceedings were terminated on 28 February 1996 as regards the first applicant and on 26 February 1998 as regards the third and fourth applicants.
The Government argued that land consolidation proceedings are complex, involving a multitude of parties - in the present case 950 parcels belonging to 410 land owners - and having to achieve a balance between the public interest and the interests of the individual land owners. They asserted that, on the whole, the authorities dealt with the proceedings without delay. As to the delay in the proceedings before the Administrative Court, the Government submitted that it was due to the heavy increase in that court’s work load. However, measures were taken to alleviate the workload of the Administrative Court. In particular, Independent Administrative Panels were set up in the Austrian provinces as of 1 January 1991. Complainants must now turn to these Panels prior to seizing the Administrative Court. If a decision of an Independent Administrative Panel is challenged before the Administrative Court, the latter may reject the appeal if it is of minor importance. Moreover, the judicial and non-judicial staff of the Administrative Court were increased. Moreover, the applicants also contributed to the length of the proceedings.
For their part, the applicants assert that the proceedings were not particularly complex. According to them they involved only 97 parcels of land belonging to the municipality and 57 other land owners. Compared to other land consolidation proceedings they were of a rather small size.
The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.
c. The applicants further complained that none of the authorities involved in the proceedings qualified as a tribunal. The third and fourth applicant also complained that the proceedings were not adversarial.
The Court recalls its case-law, according to which the agricultural authorities at issue qualify as tribunals (see in particular the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, pp. 17-19, §§ 36-41 as well as the Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, p. 677, § 37 and, as a recent authority Entleitner v. Austria, no. 29544/95, 1.8.2000, § 17). The Court notes that the relevant rules on the composition of the agricultural authorities have not changed since and that the applicants have not adduced any argument which would justify a departure from the Court’s established case-law. Further, the Court notes that the third and fourth applicant have not substantiated their complaint that the proceedings were not truly adversarial.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
d. Finally, the applicants complained that throughout the proceedings they did not have a public hearing.
The Government pointed out that under Austrian law as it stood until December 1993, hearings before the agricultural authorities were only open to the parties but not to the general public. However, following the amendment of the Federal Agricultural Proceedings Act their hearings were public. Thus, any hearings held after the said change in law in the proceedings at issue complied with the requirements of Article 6 § 1.
The applicants did not make any submissions in reply on this point.
The Court observes, as was pointed out by the Government, that the relevant law changed in December 1993 with the effect that hearings before the agricultural authorities are held in public. However, the Court notes that in the case of the first applicant no hearing was held by the agricultural authorities after that date.
On the other hand, in the proceedings concerning the second applicant, the Provincial Board held a hearing on 25 July 1996 and, in the case of the third and fourth applicants, the Supreme Board held a hearing on 6 November 1996. The applicants did not contest the Government’s assertion that these hearings were public as provided for by the amended version of the Federal Agricultural Proceedings Act nor did they allege that the scope of the review carried out by the Provincial Board or the Supreme
Board was insufficient to compensate the lack of a public hearing at a lower instance. As regards the second, third and fourth applicants, the requirement of Article 6 § 1 that hearings be public was thus, complied with.
It follows that, as regards the second, third and fourth applicants, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
However, as regards the first applicant, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicants also complained that the consolidation proceedings violated their right to property in two respects: Firstly, they were not sufficiently compensated, in particular as regards plots of land which were transferred to the municipality for building a street, secondly the authorities did not take into account the re-designation of part of their land as building land after the provisional transfer. They invoked Article 1 of Protocol No. 1 which reads 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.”
As to the first point of the applicants’ complaint, the Government did not make any comment. As to the second point, the Government contended that the applicants lost ownership of the plots of land originally owned by them with the provisional transfer. Thus, the lack of compensation for a change in value which occurred after the provisional transfer could not constitute an interference with their possessions. The Government further pointed out that the present case had to be distinguished from the case of Wiesinger v. Austria (judgment of 30 October 1991, Series A no. 213). In this case the relevant law for Upper Austria granted a right to compensation for a change in value that occurred after the provisional transfer, while the Tirol Land Planning Act applicable in the present case did not.
The applicants contested the Government’s view.
a. As far as the applicants complain that they were not sufficiently compensated, in particular as regards plots of land which were transferred to the municipality for building a street, the Court notes that the applicability of Article 1 of Protocol No. 1 is not contested. The Court considers that the domestic authorities examined the issue thoroughly and, giving detailed reasons, found that the applicant’s had been duly compensated. There is no indication that an excessive burden was placed on the applicants. Thus, there is no appearance of a violation of Article 1 of Protocol No. 1 in this respect.
It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b. The Court now turns to the applicants’ complaint that the authorities did not take into account the re-designation of part of their land as building land after the provisional transfer.
The Court recalls that Article 1 of Protocol No. 1 aims at securing the peaceful enjoyment of existing possessions. Future income only constitutes a "possession" if it has been earned or where an enforceable claim exists (see Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23 § 50; van der Mussele v. Belgium judgment 23 November 1983, Series A no. 70, p. 23), or where the applicant may argue that he has at least a “legitimate expectation” of obtaining the effective enjoyment of a property right (see the Pine Valley Developments Ltd. and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51).
In the present case the applicants lost ownership of the plots of land originally owned by them in 1974, when the provisional transfer of compensatory parcels was carried out. Thus, these plots were no longer their possessions within the meaning of Article 1 of Protocol No. 1. As the Government rightly pointed out the present case has to be distinguished from the Wiesinger v. Austria case (loc.cit.), as the present applicants did not have a legitimate expectation, let alone an enforceable claim, to receive compensation for a change in value which occurred when some of their former parcels were re-designated as building land in 1980. According to the Constitutional Court’s judgment of 13 October 1995 changes in value which occur after the provisional transfer of compensatory parcels are not to be taken into account pursuant to section 15 § 1 of the Tyrol Land Planning Act. The applicants have not adduced any case-law to show that this provision was interpreted in a different way prior to the Constitutional Court’s judgment. Thus, there was no interference with the applicants’ right to peaceful enjoyment of their possessions.
It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
3. Finally, the applicants complained that no remedy was available against the provisional transfer. They invoked Article 6 of the Convention and Article 1 of Protocol No. 1.
The Court notes that the applicants raised this complaint for the first time in their observations of 16 October 2000. The provisional transfer of land took place in 1974 and the land consolidation proceedings at issue were terminated on 24 May 1996 as regards the first applicant, on 22 January 1999 as regards the second applicant and on 18 March 1998 as regards the third and fourth applicants. The applicants thus failed to raise this complaint within the six month time-limit provided for in Article 35 § 1 of the Convention.
It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants’ complaint concerning the length of the land consolidation proceedings and the first applicant’s complaint about the lack of a public hearing in these proceedings;
Declares inadmissible the remainder of the application.
Erik FriberghC. L. Rozakis
RegistrarPresident
Full & Egal Universal Law Academy