EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 15508/89
Ludwig and Maria Prötsch
against
Austria
REPORT OF THE COMMISSION
(adopted on 5 April 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-27) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras.16-27) . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 28-38) . . . . . . . . . . . . . . . . . . . . .5
A. Complaint declared admissible
(para. 28). . . . . . . . . . . . . . . . . . . . .5
B. Point at issue
(para. 29). . . . . . . . . . . . . . . . . . . . .5
C. As regards Article 1 of Protocol No. 1 to the Convention
(paras. 30-37). . . . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 38). . . . . . . . . . . . . . . . . . . . .6
DISSENTING OPINION OF MM. M. PELLONPÄÄ AND N. BRATZA. . . . .7
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . .8
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . .9
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Austrian citizens and own a farm at
Niederthalheim, Upper Austria. They were represented before the
Commission by Mr. Erich Proksch, a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government were first represented by their then agent, Ambassador
Helmut Türk, Deputy Secretary General and Legal Counsel of the Federal
Ministry of Foreign Affairs and subsequently by Mr. Nikolaus Scherk,
Deputy Legal Adviser.
4. The case concerns the impossibility of the applicants to obtain
compensation in respect of alleged temporary disadvantages suffered in
connection with Agricultural Land Consolidation proceedings under the
Upper Austrian Agricultural Land-Planning Act (Flurverfassungsgesetz).
The applicants invoke Article 1 of Protocol No. 1. to the Convention.
B. The proceedings
5. The application was introduced on 12 June 1989 and registered on
15 September 1989.
6. On 2 December 1991 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The case was subsequently transferred to the First Chamber.
8. The Government's observations were submitted on 25 May 1992 after
one extension of the time-limit fixed for this purpose. The applicants
replied on 9 July 1992.
9. On 31 August 1994 the Commission (First Chamber) declared
admissible the applicants' complaint under Article 1 of Protocol No. 1.
It declared inadmissible the remainder of the application.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
12. The text of this Report was adopted on 5 April 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. The applicants, Austrian citizens who own a farm in
Niederthalheim, Upper Austria, are represented by Mr. Erich Proksch,
a lawyer practising in Vienna. They complain of 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).
17. The proceedings were apparently instituted ex officio in 1979.
In October 1979 and October 1980 the Gmunden Agricultural District
Authority (Agrarbezirksbehörde) ordered the provisional transfer
(vorläufige Übergabe) of the compensation parcels. The first order
related to part of the area, namely Imming, and the second order to the
remaining area.
18. The consolidation plan (Zusammenlegungsplan) was issued in
October 1983.
19. 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.
20. 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 be partly dismissed, as the
compensation of the applicants was an indivisible whole.
21. On 11 July 1985 the Provincial Land Reform Board set the
consolidation plan aside. The Board pointed out that it did not share
the opinion expressed in the private expert opinion submitted by the
applicants, according to which the compensation parcel's yield was
below that of the applicants' prior property. It established that the
compensation attributed to the applicants was, on the one hand more
advantageous, but also contained some negative aspects.
The advantages were :
- reduction of the splitting up of the parcels (increase of
average size of parcels)
- reduction of the length of borderlines (abolition of
unproductive balks)
- better proportionality between length and width of the
parcels
- better access
The negative criteria were :
- diminution of average comparative values of the parcels
by 2.3%
- increase of average distance from the farm by 2%
- slight increase of forest border
- no optimal exploitation of plot No. 4733
- hook-like form of parcel No.4738, circuit line pylons on
this plot part of which was unproductive.
The Board concluded that in sum the lawfulness of the
compensation was still in question (Die Gesetzmässigkeit der Abfindung
... erscheint noch nicht gewährt).
22. 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.
23. 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.
24. 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.
25. 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. In the
latter respect, the Board pointed out that it had examined and rejected
the applicants' private expert opinion already in its decision of
11 July 1985 (see para. 21 above). Although the original consolidation
plan had to be quashed in consequence of the applicants' appeal, this
did not mean that the applicants had suffered damage. In the instant
case, it had been found in the earlier decision that among the total
of 17 ha of compensation plots allotted to the applicants only a parcel
of 2,2 ha (No. 4738) was objectionable. On the other hand, the
applicants had also gained certain advantages. Therefore the Board
maintained the opinion already expressed in the earlier decision that
the applicants had not suffered any damage as far as yield and
exploitation facilities (Ertragswert und Betriebserfolg) were
concerned.
26. 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.
27. 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 have
any prospects of success.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
28. The Commission declared admissible the applicants' complaint of
unjustified interference with their right to the peaceful enjoyment of
their possessions.
B. Point at issue
The issue to be determined is:
29. Whether the applicants' right to the peaceful enjoyment of
possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) was
violated in that they were unable to obtain compensation for the
alleged loss of yield from insufficient compensation parcels which they
were provisionally attributed during the consolidation proceedings.
C. Article 1 of Protocol No. 1 (P1-1)
30. 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."
31. The applicants allege that the compensation parcels allotted to
them in 1979/80 caused them annual losses of some AS 30,000 per year.
As the situation complained of lasted seven years, their total loss
allegedly amounts to AS 210,000. This damage, so they submit,
exclusively follows from the fact that the compensation parcels
attributed to them are less valuable.
32. The respondent Government deny that the applicants suffered any
damages in consequence of the provisional property transfer. They
further argue that, in any event, the disadvantages alleged by the
applicants did not amount to a violation of Article 1 of Protocol No. 1
(P1-1). Even if the applicants had experienced some disadvantages
these were unimportant and outbalanced by the advantages. It is also
submitted that the proceedings in the instant case only lasted six
years and thus the disadvantages alleged by the applicants did not have
to be borne for an excessive period.
33. The Commission first notes that the European Court of Human Rights
has already recognised in the Erkner, Hofauer and Poiss case (Judgment
of 23 April 1986, Series A, no. 117) that the system of provisional
land transfers is not as such contrary to Article 1 of Protocol No. 1
(P1-1) as long as no disproportionate burden is placed on the
individual land-owner.
34. The Court has considered such transfers under the first paragraph
of Article 1 (P1-1). It stated inter alia:
"In authorising a provisional transfer at an early stage of the
consolidation process, its (the legislator's) intention is to
ensure that the land in question can be continuously and
economically farmed in the interest of the landowners generally
and of the communities. Furthermore, although the applicants
lost their land in consequence of the transfer decided on in
1970, they received other land in lieu, even if they are not
satisfied with it. The applicable system, however, suffers from
a degree of inflexibility: before the entry into force of a
consolidation plan, it provides 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 (loc. cit., p. 66 para. 78 and p. 109
para. 68)."
35. The Court then concluded that in these cases the necessary balance
between protection of the right of property and the requirement of the
public interest was lacking.
36. It is true that in the cases referred to the proceedings lasted
considerably longer than in the present case (and had not even been
terminated at the time of the Court's judgment). However, even a
period of six years, as in the present case, is substantial. The
Commission recognises that it is the aim of the legislation in question
that benefit shall accrue to all parties, but the disadvantages
resulting from a wrong provisional transfer affect only some while
others may temporarily have unjustified advantages. Therefore, the
long-term benefit which each land-owner may possibly draw from the
reallocation of land is irrelevant in the context of the present
complaint.
37. Consequently the very impossibility for the applicants, who may
have been prejudiced by reason of the length of the land consolidation
proceedings to bring an action for compensation, amounts, in the
Commission's opinion, to a violation of the right to peaceful enjoyment
of possessions within the meaning of Article 1 of Protocol No. 1
(P1-1), in that an individual and excessive burden is thereby imposed
on such owners.
CONCLUSION
38. The Commission concludes, by nine votes to two, that in the
present case there has been a violation of Article 1 of Protocol No. 1
(P1-1) to the Convention.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
DISSENTING OPINION OF MM. M. PELLONPÄÄ AND N. BRATZA
We are unable to share the view of the majority of the Commission
that there has been a violation of Article 1 of Protocol No. 1 in the
present case.
We do not consider it necessary to determine whether the
proceedings here in question lasted six or seven years as the
applicants allege. We note that the period involved was in any event
considerably shorter than the periods with which the Court was
concerned in the Erkner and Hofauer case and the Poiss case, the
shortest of which lasted more than sixteen years.
We further note that the Provincial Land Reform Board examined
the applicants' allegations concerning the damage caused to them by the
provisional property transfer and twice expressed the reasoned opinion
that the applicants' complaints were unfounded in both law and fact.
In this respect, the present case can be distinguished from the
Wieninger case in which the Commission found a violation of Article 1
of Protocol No. 1 (Comm. Report of 11 January 1984, No. 12650/87 not
yet published).
In these circumstances there is in our view nothing to indicate
that the provisional property transfer imposed on the applicants an
individual and excessive burden such as to amount to a violation of
Article 1 of Protocol No. 1.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
12.06.1989 Introduction of application
15.09.189 Registration of application
Examination of admissibility
02.12.1991 Commission's decision (First Chamber) to
communicate the case to the respondent
Government and to invite the parties to
submit observations on admissibility and
merits
25.05.1992 Government's observations
09.07.1992 Applicant's observations in reply
31.08.1994 Commission's decision to declare
application in part admissible and in part
inadmissible
Examination of the merits
15.09.1994 Decision on admissibility transmitted to
parties. Invitation to parties to submit
further observations on the merits
Government's observations
11.11.1994 Applicant's observations
Commission's consideration of state of
proceedings
Commission's deliberations on the merits,
final vote and consideration of text of
the Report
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