AS TO THE ADMISSIBILITY OF
Application No. 15508/89
by Ludwig and Maria PRÖTSCH
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 31 August 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 12 June 1989 by
Ludwig and Maria PRÖTSCH against Austria and registered on 15 September
1989 under file No. 15508/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on 25 May
1992 and the observations in reply submitted by the applicant on
9 July 1992;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the applicants, may be summarised as
follows :
The applicants, Austrian citizens who own a farm in Wufing, Upper
Austria, are represented by Mr. Erich Proksch, a lawyer practising in
Vienna. They complain of the length of agricultural proceedings and the
impossibility of obtaining compensation in respect of temporary
disadvantages which they allegedly suffered in connection with
agricultural land consolidation proceedings (Zusammenlegungsverfahren)
under the Upper Austrian Agricultural Land Planning Act
(Flurverfassungsgesetz).
The proceedings were apparently instituted ex officio in 1979.
In 1979 and 1980 the Gmunden Agricultural District Authority
(Agrarbezirksbehörde) ordered the provisional transfer (vorläufige
Übergabe) of the compensation parcels.
The consolidation plan (Zusammenlegungsplan) was issued in
October 1983.
On 24 May 1984 the Provincial Land Reform Board (Landes-
agrarsenat), on the applicants' appeal, quashed part of the
consolidation plan, dismissed the appeal for the remainder and referred
the case back to the Agricultural District Authority. The applicants
appealed against this decision.
On 3 April 1985 the Supreme Land Reform Board (Oberster
Agrarsenat) quashed the decision of 24 May 1984 and referred the case
back to the Provincial Land Reform Board following the applicants'
argument that the appeal could not have been partly dismissed, as the
compensation of the applicants was an indivisible whole.
On 11 July 1985 the Provincial Land Reform Board set the
consolidation plan aside on the ground that the compensatory parcels
did not fully reach the quality of the former parcels and that
therefore the compensation was not lawful, and referred the case back
to the District Authority.
In January 1986 the Agricultural District Authority issued a new
consolidation plan. The applicants appealed against this plan and
subsequently lodged a complaint with the Constitutional Court
(Verfassungsgerichtshof) against the further decision of the Provincial
Land Reform Board. The Constitutional Court refused to deal with the
complaint and referred the case to the Administrative Court
(Verwaltungsgerichtshof) which decided to discontinue the proceedings
on 23 February 1988.
On 26 January 1988 the applicants applied for financial
compensation in respect of the damages allegedly caused to them by the
fact that they had received insufficient compensation parcels by the
provisional transfer which at that time was still in force. They
submitted an expert opinion according to which they had suffered a loss
of crops in the amount of approximately 210,000 AS between 1980 and
1987.
On 22 February 1988 the Agricultural District Authority rejected
the applicants' claim as being inadmissible. It observed that the
Agricultural Land Planning Act did not provide for any compensation in
respect of damage caused by the fact that there was a long period
between the provisional transfer and the assignment of lawful
compensation parcels by the final consolidation plan. According to the
decision the agricultural authorities were only competent to decide on
facts concerning the implementation of the consolidation.
On 7 July 1988 the Provincial Land Reform Board dismissed the
applicants' appeal on the ground that there was neither a legal nor a
factual basis for a claim for compensation in the present case.
The applicants challenged this decision before the Administrative
Court alleging that the authorities had the duty to apply the
provisions of civil law. The Administrative Court, however, found that
the authorities were not competent to decide on compensation claims of
civil law and dismissed the complaint on 27 September 1988.
The applicants also complained to the Constitutional Court
invoking their constitutional rights to the inviolability of property
and to a decision by the lawful judge. However, on 28 February 1989 the
Constitutional Court, in summary proceedings under Article 144 para. 2
of the Federal Constitution, refused to deal with these complaints,
holding that in the light of its constant case-law they did not show
any prospects of success.
COMPLAINTS
1. The applicants complain that Article 1 of Protocol No. 1 to the
Convention has been violated in that they are unable to obtain
compensation for the damage caused to them by the assignment of
insufficient compensation parcels at the provisional transfer in
1979/80. They had immediately complained of the situation created by
this measure which, however, remained in force until the conclusion of
the consolidation proceedings in 1987, causing them important losses
of crops during seven years. They deny any responsibility for the
delay of the relevant proceedings and invoke the cases of
Erkner-Hofauer and Poiss where the Convention organs found a breach of
Article 1 of Protocol No. 1 in a similar situation (cf. Eur.
Court H.R., Judgments of 23 April 1987, Series A No. 117).
2. The applicants further complain that Article 6 of the Convention
has been violated in that the proceedings before the agricultural
authorities and the Courts of public law were not conducted in
conformity with the requirements of this provision; in their view the
organisation and composition of the agricultural authorities, in
particular the Land Reform Boards, did not meet the requirements of a
tribunal within the meaning of Article 6. They allege in particular
that the Land Reform Boards, when deciding on claims for compensation
arising from the assignation of insufficient parcels of the provisional
transfer of land, are not impartial because they are themselves
responsible for the decision by which a damage was caused to the
private party concerned.
THE LAW
1. The applicants complain that by a provisional transfer of lands
ordered in connection with agricultural land consolidation proceedings
in 1979 and 1980 they received insufficient compensation parcels and
that this situation was maintained for seven years until 1987 when as
a result of the final decision in the consolidation proceedings they
got lawful compensation parcels. They claim that the situation created
by the provisional transfer, which could neither be altered nor
redressed by the adjudication of financial compensation, amounted to
an unjustified interference with their property rights as guaranteed
by Article 1 of Protocol No. 1 (P1-1) to the Convention.
This provision 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."
In the Erkner/Hofauer and Poiss judgments of 23 April 1987
(Series A no. 117), the European Court of Human Rights held that a
provisional transfer of lands is a measure interfering with the right of
property which falls to be considered under the first sentence of the
first paragraph of Article 1 (Art. 1). It will be compatible with this
provision only if a proper balance is struck between the demands of the
community's general interest and the requirement of protecting the
property rights of the individual. The Court observed that the Austrian
system of provisional transfers of land suffered from a degree of
inflexibility in that, before the entry into force of a consolidation
plan, it provided no means of altering the position of landowners or of
compensating them for damage they may have sustained in the time up to
the final award of the statutory compensation in land. In the cases
then before the Court, where the restrictions had lasted about sixteen
and twenty-four years respectively, it was found that there had been no
proper balance between the conflicting interests involved and that the
applicants in those cases had been made to bear a disproportionate
burden incompatible with Article 1 of the Protocol (P1-1) (cf. Erkner
and Hofauer judgment, loc. cit., p. 64 et seq., paras. 71-80; Poiss
judgment, loc. cit., p. 107 et seq., paras. 61-70).
The respondent Government point out that in the present case,
the restriction of the applicants' property right caused by the
provisional transfer of lands was maintained only for about six years,
which is considerably shorter than in the above-mentioned cases.
They also consider that the applicant did receive adequate compensation
parcels and did not have to bear a disproportionate burden.
The applicants maintain that they sustained important losses which
in their opinion are proven by the fact that eventually the
consolidation plan was set aside on the ground that their compensatory
parcels did not fully reach the quality of the former ones.
In this respect the Commission recalls the Erkner/Hofauer case
where it stated inter alia the following (Application No. 9616/81,
Comm. Rep. 24.1.86, para. 131):
"The Commission considers that it can in principle be
justified in the public interest that by the operation of the
provisional transfer of lands, as conceived by the domestic
legislation, the individual has to sustain a temporary
disadvantage if this disadvantage is not wholly disproportionate
to the legitimate aim generally pursued by this measure. There
is no appearance that such a measure is in itself contrary to
Article 1 of the Protocol (P1-1)."
On the other hand the Commission has recently declared
admissible an application where the same type of restriction was
maintained for eleven years (No. 12650/87, Dec. 31.5.91, unpublished).
Although the period in question is of only seven years the
present case is still comparable to the above case and the Commission
therefore finds that the complaint under Article 1 Protocol No. 1
(P1-1) raises complex and difficult issues which require to be
determined as to the merits. It follows that the applicants' complaint
cannot be dismissed as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for
declaring it inadmissible has been established.
2. The applicants further complain of the organisation of the
agricultural authorities which dealt with their case, claiming that it
fell short of the requirements of Article 6 (Art. 6) of the Convention.
In particular they allege that due to the participation of a majority of
civil servants, the disproportionate influence of the specialised civil
servants who also assume the functions of experts, and the lack of a
true adversarial character of the proceedings, the competent Land Reform
Boards cannot be regarded as independent and impartial tribunals within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission notes that the applicants' above allegations are
essentially the same as those submitted by the applicant in the
Ettl case (Eur. Court H.R., judgment of 23 April 1987, Series A
No. 117). The present applicants give particular weight to the status
and functions of the expert civil servant members of the Land Reform
Boards; but they have failed to indicate any element which could be held
to justify a distinction of the present case from the Ettl case. In
view of the Court's finding in that case concerning the general
organisation and procedure of the Land Reform Boards, these Boards must
in the present case be considered to fulfil the requirements of
independent and impartial tribunals within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
This part of the application must accordingly be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants furthermore complain that the land reform
authorities, when deciding on claims for compensation, were not
"impartial" within the meaning of Article 6 (Art. 6) of the Convention.
The Commission notes, that in the present case the Land Reform
Boards declined jurisdiction to decide on the applicants' compensation
claim. It follows that the authorities in fact did not decide on the
merits of the compensation claim in question. Therefore an issue of
impartiality as alleged by the applicants cannot arise. This part of the
application is accordingly also manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits of the case, the
applicants' complaint of unjustified interference with their right
to the peaceful enjoyment of possessions.
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy