AS TO THE ADMISSIBILITY OF
Application No. 19166/91
by Josef, Ingeborg and Anna POISS
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 6 April 1994, 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
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 26 July 1991
by against Josef, Ingeborg and Anna POISS and registered on 6
December 1991 under file No. 19166/91;
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 are Austrian citizens and farmers in
Palterndorf. They are represented by Mr. E. Proksch, a lawyer
practising in Vienna. All three applicants belong to the Poiss
family.
It follows from their submissions and the documents
submitted that the applicants were parties in land consolidation
proceedings. The first land consolidation plan concerning the
applicants' community had been issued by the Lower Austrian
District Agricultural Authority (Agrarbezirksbehörde) on 1
September 1965. The applicants, Leopold and Barbara Poiss lodged
appeals which were to no avail. However, on 1 October 1975 a
request for a retrial was granted by the Supreme Land Reform
Board (Oberster Agrarsenat - "the Supreme Board").
Eventually, by decision of 6 March 1985, the Supreme Board
amended the original consolidation plan in favour of the
applicants, Leopold and Barbara Poiss but rejected their request
for the payment of compensation.
All the applicants appealed to the Administrative Court
which on 15 July 1986 quashed the Supreme Board's decision as
regards the land in compensation, on the grounds of procedural
irregularities. The claim for financial compensation was however
dismissed by the Administrative Court for want of any statutory
basis.
The Poiss family then brought an application before the
European Commission of Human Rights which was eventually decided
by the European Court of Human Rights which held in its judgment
of 23 April 1987 (Series A, No. 117, p. 86 et. seq.) that there
had been a breach of Article 6 para. 1 of the Convention as
regards observance of the "reasonable time" requirement. It
further held that there had been a breach of Article 1 of
Protocol No. 1. In the latter respect the Court took into
consideration that nearly twenty four years had already lapsed
since the provisional transfer of compensation parcels without
the applicants having received under a final consolidation plan
the compensation in land provided for by law. The Court further
considered that the applicants did not have any possibility of
obtaining compensation for the loss they might have sustained on
account of the forced exchange of their land for other inferior
land pursuant to the provisional transfers. It concluded that
under these particular circumstances the necessary balance
between protection of the right of property and the requirements
of the public interest was lacking.
Insofar as the applicants had criticised the fact that the
hearings before the Land Reform Boards were not held in public
and contended that the boards were not independent and impartial,
the European Court of Human Rights pointed out that these were
new complaints which had not been raised as such before the
Commission. Consequently the Court considered that it had no
jurisdiction to entertain these complaints (par. 49 of the
judgment of 23 April 1987).
In the domestic proceedings the Supreme Board on 4 May 1988
confirmed the earlier consolidation measures and drew up a new
consolidation plan. It dismissed as being unfounded the
applicant family's claim that the compensation parcels allotted
to them were insufficient and the compensation therefore unlawful.
Insofar as the applicants had relied on an expert opinion
by expert B., the Supreme Board pointed out that the expert had
visited the sites in question ten years after the provisional
transfer. His opinion on the original value could only therefore
be based on indications he received from the applicants, i.e. the
parties. Examining in detail the different compensation parcels
in question and certain points raised in the expert opinion, the
Supreme Board came to the conclusion that the complainants had
received adequate compensation both as regards size and value
which was therefore unobjectionable.
Insofar as the applicants had alleged that part of their
former property had been of special value in that the land in
question was constructible, the Supreme Board relied on an expert
estimation on the market values of the compensation parcels as
compared to the applicant's prior property and pointed out that
the estimated value of the compensation parcels was even higher
than those of the previous properties.
Insofar as a private expert of the applicants came to a
different conclusion the Board stated that this expert had not
taken into account that the parcels in question had for decades
been used as farm land. It also pointed out that the official
expert opinion proved to be correct as the estimated values
corresponded to the prices obtained for the sale of comparable
parcels. The Board concluded that for their constructible land
the applicants had received constructible compensation parcels
of the same value.
Insofar as the applicants had alleged that two of the
previous parcels had to be regarded as constructible in view of
their proximity to the community, the Board stated that there
were no concrete indications that these parcels would in the near
future become constructible.
Finally, the Supreme Board rejected the applicant's
complaint that the compensation parcels had been arbitrarily
distributed among the Poiss family members by the authorities.
The Board considered that, when attributing compensation parcels,
the authorities had correctly taken into account the pre-existing
proprietorial situation. Lastly, the Supreme Board stated that
it had seen no reason to invite the expert to attend the oral
hearing and to proceed to a visit of the properties in question.
It added that in any event, according to constant jurisprudence,
the parties did not have a right to put questions to the expert
and the applicable procedural law did not provide for a hearing
on the spot (Lokalaugenschein).
The applicants then lodged a constitutional complaint which,
however, the Constitutional Court (Verfassungsgerichtshof)
refused to admit for a decision on the merits. It is stated in
its decision of 28 November 1988 that insofar as the applicants'
alleged violations of their property right, of their right to
equal treatment and to a fair trial before an impartial tribunal,
they did not raise any issues of constitutional law, the alleged
violations being the result of the alleged misapplication of
ordinary law. Insofar as violations of Article 6 of the
Convention had been alleged, the court referred to its own case-
law and to the Ettl judgment of 23 April 1987 of the European
Court of Human Rights from which it follows that the complaints
were clearly unfounded.
The applicants also appealed to the Administrative Court
(Verwaltungsgerichtshof) which dismissed their appeal on
4 December 1990 (served on 31 January 1991) as being unfounded.
It is stated in the Administrative Court's decision that the
procedural rules for administrative proceedings did not provide
for a right of parties to put questions to experts.
Insofar as the applicants had complained that the court-
appointed expert had not sufficiently taken into account the
quality of the soil of the real estate in question, the court
pointed out that under the applicable law the compensation
parcels had to be equivalent (gleichartig) to their prior
property. The court replied that "equivalent" did not mean that
the parcels were equal or homogeneous in every respect. They
only had to be equal with regard to the specific value. However,
in the prior proceedings the applicants had only alleged that the
compensation parcels were less valuable and less well situated.
Also in their complaint to the Constitutional Court they had
alleged that the location and the extension of the compensation
parcel were not equal to the prior property. However, so the
Administrative Court pointed out, the compensation parcels were
all situated in the vicinity of the same road and only some
hundred meters away from the prior property. It was also
uncontested that the compensation parcels constituted viable
constructible plots of a size of 3,715 sq. meters while the
comparable constructible former property was of a size of 3,360
sq. meters. Therefore the applicants' complaints in this respect
were considered to be unfounded.
The Administrative Court furthermore stated that the
applicants had not indicated any reasons for the motion to have
another hearing on the spot and that there had in fact been no
necessity for such further taking of evidence.
In addition to the argument that the applicant had received
as many square meters of real property as they had been obliged
to give away, the court pointed out that the fact that part of
the applicants' prior property was of special value because of
its constructibility had been taken into account twice by the
authorities when fixing the compensation.
Insofar as the applicants had complained that the community
and other parties to the consolidation proceedings had not been
heard, it is stated in the decision that possible violations of
the rights of others were irrelevant in the present proceedings.
Furthermore the legality of the compensation in the applicants'
case did not depend on the question whether or not other parties
had received lawful compensation. In any event, the
consolidation plan and the manner in which it affected other
parties was accessible to or known by the applicants.
Finally the court stated that the attribution of
compensation parcels only to some members of the Poiss family was
unobjectionable for the reasons already stated in the decision
of the Supreme Board.
COMPLAINTS
The applicants submit that the Supreme Board, having itself
established the consolidation plan, could no longer be considered
as an impartial tribunal with regard to the question of whether
or not this consolidation plan was lawful. Furthermore, the
applicants complain that no other parties either in the community
or other farm owners were heard in their proceedings. They
therefore consider that they did not have a fair trial before an
impartial tribunal and these shortcomings were not remedied by
the fact that they could appeal to an Administrative Court.
They also allege a violation of Article 1 of Protocol No.
1 arguing that they did not receive adequate compensation parcels
in the land consolidation proceedings.
THE LAW
1. The applicants have invoked Article 6 (Art. 6) of the
Convention arguing that they did not have access to an
independent tribunal which could have examined their claim.
However, even assuming that Article 6 (Art. 6) applies and
further assuming that the present complaint has been brought
before the Commission within the six-months time-limit (Article
26) (Art. 26), the Commission notes that the applicants could and
in fact did complain of the Supreme Board's decision to the
Administrative Court the impartiality of which is not in
question. Further it has not been shown in the present case that
there were factual issues before the Administrative Court which
that court was prevented from examining (cf. Eur. Court H.R. Ettl
judgment of 23 April 1987, Series A, No. 117, p. 86 et. seq.
para. 34). Consequently it cannot be found that the
Administrative Court was in any way limited in its competence to
examine the issues raised by the applicants. The Administrative
Court found that the applicants' complaints were unfounded.
There is nothing to indicate that this finding is inconsistent
with any provisions of the Austrian legal order or arbitrary for
any other reason.
Insofar as the applicants complain that other persons
involved in the consolidation proceedings could not participate
in the proceedings relating to their appeals it has to be noted
that there is nothing to show that the applicants were thereby
prejudiced insofar as procedural guarantees are in question.
Consequently there is, in the particular circumstances of
the case, no appearance of a violation of Article 6 (Art. 6) of
the Convention and to this extent the application has therefore
to be rejected as being manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants have further complained that their right to
the peaceful enjoyment of possessions, as guaranteed by Article
1 of Protocol No. 1 (P1-1), was violated, alleging that the
compensation parcels allocated to them were not adequate.
Article 1 of Protocol No.1 (P1-1) provides:
"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.
The Commission considers that the measure in question
concerned the regulation of the use of the applicants' property.
It first notes that the applicants have not contested that the
measure was taken on the basis of domestic law. The Commission
further considers that the consolidation of agricultural land is
in the general interest. Finally, as far as the question of a
fair balance between the general interest of the community and
the requirements of the protection of the individual's
fundamental rights is concerned (cf. Eur. Court H.R., Sporrong
and Lönnroth judgment of 24 September 1982, Series A No. 52, p.
26, para. 69), the Commission notes that in the applicants' case
the consolidation plan was eventually amended in favour of the
applicants Leopold and Barbara Poiss by the Supreme Board on 6
March 1985 but the applicants' further appeals were rejected as
being unfounded. The Supreme Board and the Administrative Court
carefully examined the arguments advanced by the applicants and
also took into consideration the conclusion of the private expert
opinion submitted by them. However, they found that the private
expert based his opinion mainly on indications received from the
applicants. They also indicated reasons why they relied on the
official expert opinion and not that of the private expert. It
has not been shown that these reasons are unwarranted and in any
way incompatible with the evidence available to the domestic
courts. There is consequently nothing to show that attribution
of compensation parcels and the situation created thereby
constituted a measure imposing an intolerable or excessive burden
on the applicants.
It follows that this part of the application has likewise
to be rejected as being manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
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