AS TO THE ADMISSIBILITY OF
Application No. 12650/87
by Alois and Hertha WIENINGER
against Austria
The European Commission of Human Rights (Second Chamber)
sitting in private on 31 May 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
F. ERMACORA
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G. H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second 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 December 1986
by Alois and Hertha Wieninger against Austria and registered on
22 January 1987 under file No. 12650/87;
Having regard to:
- the Commission's decision of 11 July 1989 to bring the
application to the notice of the respondent Government
and to invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
20 November 1989 and the observations in reply submitted by
the applicant on 3 January 1990 and supplemented on
11 February 1991;
- the Commission's decision of 8 December 1990 to refer the
case to the Second Chamber;
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 facts agreed by the parties may be summarised as follows:
The applicants, Austrian citizens who own a farm at Weitersfeld,
Lower Austria, are represented by Rechtsanwalt Dr. Erich Proksch of 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 (Zusammenlegungsver-
fahren) under the Lower Austrian Agricultural Land Planning Act (Flur-
verfassungsgesetz).
The proceedings in question were instituted ex officio in January
1969. In October 1971 the Agricultural District Authority (Agrarbezirks-
behörde) ordered the provisional transfer (vorläufige Übergabe) of the
compensation parcels. At the relevant time there was no possibility
of appealing against the provisional transfer. The applicants, who
immediately claimed that their compensation parcels were insufficient,
thus could only assert their claims in the main proceedings.
The consolidation plan (Zusammenlegungsplan) was issued in
April 1972 in conformity with the situation created by the provisional
transfer. The applicants' appeals against this plan were eventually
successful. On 6 September 1978 the Supreme Land Reform Board
(Oberster Agrarsenat) quashed this plan insofar as it concerned the
applicants' compensation parcels finding that they were insufficient.
The Agricultural District Authority adopted a new plan on 22 May 1980
which was amended by decisions of the Provincial Land Reform Board
(Landesagrarsenat) of 24 November and 23 December 1981. The
applicants thereby received, with effect from autumn 1982,
compensation parcels which they considered as satisfactory.
In December 1979 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 suffered an annual loss of
crops in the amount of approximately 50,000 AS. In its above decision
of 22 May 1980 the Agricultural District Authority reserved this issue
for a separate decision. On 24 March 1982 the applicants requested an
adjournment of the proceedings in this respect. On 10 June 1985 they
applied for the resumption of the proceedings, indicating that they
now claimed compensation in the total amount of 597,927 AS.
On 12 June 1985 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. A compensation
claim could only arise if the authority had been at fault (schuldhaft)
and assigned unlawful compensation parcels at the provisional
transfer. However, such a claim did not fall within the jurisdiction
of the agricultural authorities but had to be asserted in proceedings
under the Official Liability Act (Amtshaftungsgesetz).
This decision was confirmed on appeal by a decision of the
Provincial Land Reform Board of 10 December 1985. It referred to a decision
of the Supreme Land Reform Board of 6 March 1985, according to which there
was no legal basis for a claim such as the one of the applicants.
The applicants challenged this decision before the
Constitutional Court (Verfassungsgerichtshof) invoking their
constitutional rights to the inviolability of property and to a
decision by the lawful judge. However, on 7 June 1986 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.
The applicants also complained to the Administrative Court
(Verwaltungsgerichtshof) alleging the unlawfulness of the Provincial
Board's above decision and suggesting that the lack of legal
provisions on compensation should be brought before the Constitutional
Court in proceedings for the review of the constitutionality of
legislation. The Administrative Court rejected the complaint on
30 September 1986. It considered that the applicants' claim did not
come under the provisions of the Provincial Land Planning Act
concerning financial compensation for certain temporary damages and
that the agricultural authorities were not competent to deal with
other compensation claims, including claims based on Section 365 of
the Civil Code which the applicants had invoked in this respect. The
Administrative Court had no doubts concerning the constitutionality of
the applicable legal provisions and therefore saw no necessity to
refer this question to the Constitutional Court.
The applicants also tried to assert their claim in official
liability proceedings. Their claim was, however, rejected by the
Provincial Governor on 29 August 1985. The applicants thereupon
lodged an action with the Regional Civil Court (Landesgericht für
Zivilrechtssachen) of Vienna on 1 October 1985. In his reply of
29 October 1985 the Provincial Governor submitted that the official
liability proceedings were subsidiary to the above administrative
proceedings which, at that time, were still pending. The liability
proceedings were then stayed by a mutual agreement of the parties.
They were resumed after the Administrative Court had handed down
its above decision of 30 September 1986. A hearing took place on
4 December 1986. The Court decided to obtain expert evidence and
ordered the parties to advance the costs for the expertise. They did
not comply and therefore the proceedings remained suspended.
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 1971.
They had immediatly complained of the situation created by this
measure which, however, remained in force until the conclusion of the
consolidation proceedings in 1982, causing them important losses of
crops during eleven 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.
PROCEEDINGS
The application was introduced on 12 December 1986 and
registered on 22 January 1987.
On 11 July 1989 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the
application before 10 November 1989. At the Government's request,
this time-limit was extended to 27 November 1989.
The Government submitted their observations on 20 November 1989
and the applicants replied thereto on 3 January 1990. Subsequently,
they announced the submission of further observations having regard to
plans existing at the time to introduce amending legislation as
proposed at an inquiry organised by the Federal Ministry of Forestry
and Agriculture in 1989. On 11 February 1991 the applicants informed
the Commission that the plans to introduce such legislation had
apparently been abandoned.
In the meantime, the Commission, after consulting the parties,
decided on 8 December 1990 to refer the case to the Second Chamber.
THE LAW
1. The applicants complain that by a provisional transfer of lands
ordered in connection with agricultural land consolidation proceedings
in 1971 they received insufficient compensation parcels and that this
situation was maintained for 11 years until 1982 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).
In the present case, the restriction of the applicants'
property right caused by the provisional transfer of lands was
maintained for about 11 years. During this period the applicants were
allotted insufficient compensation parcels. The situation created by
the provisional transfer could not be altered pending the entry into
force of the final consolidation plan, and the applicants could not
get any compensation in administrative proceedings under the land
reform legislation.
This was confirmed by decisions of the Constitutional Court and
the Administrative Court. The applicants claim that by appealing to
these courts they have exhausted the domestic remedies in conformity
with the requirements of Article 26 (Art. 26) of the Convention.
The Government submit that the applicants could have obtained
compensation if they had pursued the official liability proceedings
instituted by them. The applicants consider that they were not
required under Article 26 (Art. 26) to take official liability
proceedings since such proceedings can give rise to compensation only
if it is established that the competent authorities have caused damage
by unlawful and faulty behaviour. They claim that under the
Convention they are entitled to compensation even if there is no
unlawful and faulty behaviour on the part of the authorities.
Unlike in the Erkner/Hofauer and Poiss cases (cf. No. 9816/82,
Poiss v. Austria, Dec. 9.3.84, D.R. 36 p. 170) an official liability
action was available to the applicants in the present case at the time
of the introduction of their application, the consolidation
proceedings having been finally concluded. The applicants introduced
this remedy but did not pursue it. The Commission is required to
determine whether the action would have constituted an effective
remedy by which the applicants could have obtained redress for the
specific violation of the Convention alleged by them.
The applicants claim that Article 1 of Protocol No. 1 (P1-1) was
violated in that a disproportionate burden was placed upon them by the
provisional transfer of lands in respect of which they were not
entitled to compensation except if they could show that the competent
authorities had caused them damage by faulty and unlawful behaviour.
The limited scope of the right to compensation is therefore part of
the applicants' complaint under Article 1 of the Protocol (P1-1).
Insofar as the applicants might have suffered damages not attributable
to faulty and unlawful behaviour on the part of the authorities, the
official liability action therefore could not constitute an effective
remedy for the applicants. The Government do not claim that in each
and every case in which a provisional transfer leads to a
disproportionate burden on the individual landowner concerned the
courts seized with an official liability action would assume unlawful
and faulty behaviour on the part of the authorities. Nor has it been
claimed that special circumstances in the applicants' case justified
the assumption of such behaviour. On the contrary, the Government
seem to hold the view that the applicants' complaint is in substance
unjustified because they only complain of the normal and inevitable
consequences of a provisional transfer of lands for which the
authorities are not to blame. The Commission concludes that the
official liability action did not constitute an effective remedy which
the applicants were required to exhaust under Article 26 (Art. 26) of
the Convention.
As regards the substance of the applicants' above complaint,
the Commission considers that it cannot at this stage be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. The Government argue that the system of
provisional land transfers is not as such contrary to Article 1 of
Protocol No. 1 (P1-1), that the disadvantages which it may entail for
individual landowners must be weighed against the beneficial effects
of an early and effective reform of the agricultural structure and the
long-term improvements for each enterprise, and that having regard to
these considerations, the restriction on the applicants' property
rights, which lasted a much shorter time than in the Erkner/Hofauer
and Poiss cases, was not disproportionate. The Commission considers,
however, that the case raises complex and difficult issues concerning
the application of Article 1 of Protocol No. 1 (P1-1) which require to be
determined as to the merits.
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. According to the applicants this deficiency is not
remedied by the subsequent review of the Constitutional and
Administrative Courts because it is not sufficiently wide in scope.
The Government contest the applicants' arguments. They refer
to the Ettl and Others judgment of 23 April 1987 (Eur. Court H.R.,
Series A no. 117), where the agricultural authorities were recognised
as 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 applicants in the
Ettl case. 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.
For these reasons the Commission,
- by a majority DECLARES ADMISSIBLE,
without prejudging the merits of the case,
the applicants' complaint of unjustified
interference with their right to the
peaceful enjoyment of their possessions;
- unanimously DECLARES the remainder
of the application INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy