AS TO THE ADMISSIBILITY OF
Application No. 17591/90
by Waltrand ZWATZ
against Austria
The European Commission of Human Rights sitting in private on
31 March 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 30 August 1990 by
Waltrand ZWATZ against Austria and registered on 21 December 1990 under
file No. 17591/90;
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 applicant is an Austrian citizen, born in 1943 and living in
Vienna. She is represented by her husband who is a civil servant.
It follows from the applicant's statements and the documents
submitted by her that on 29 October 1985 the Provincial Land Reform
Board (Landesagrarsenat) of the regional government of Burgenland
changed at the applicant's request a consolidation plan
(Zusammenlegungsplan) concerning the community of Hornstein in that a
parcel of land no. 5992 allotted to the applicant on 25 October 1983
was consolidated with another parcel no. 5989 and the consolidated
parcel was then divided in a different manner than before and one part
re-allotted to the applicant. In this manner, the border line between
the two neighbouring plots was re-defined. The applicant's request for
a straightening of the border line was however not fully granted.
On appeal (Berufung) by the applicant the decision of 29 October
1985 was quashed on 1 October 1986 by the Supreme Land Reform Board of
the Federal Ministry of Agriculture (Oberster Agrarsenat) and the
matter referred back for a new decision.
On 15 June 1987 the Land Reform Board gave another decision
tracing new limits for the applicant's plot without granting however
her request to enable access for motor vehicles from two sides of the
plot. It is stated in the decision that the applicant could make a U-
turn and therefore did not need access from two sides. The decision
furthermore referred to two expert opinions which confirmed that the
plot in question could be used for any kind of agricultural purposes
and in a rational manner. It was also pointed out that the newly
allotted plot was far nearer to the applicant's home than her former
property.
The applicant's appeal against this decision was rejected on 4
November 1987 by the Supreme Land Reform Board .
The applicant then lodged a constitutional complaint. On 25
February 1988 the Constitutional Court (Verfassungsgerichtshof)
rejected this complaint as being inadmissible and referred the matter
to the Administrative Court (Verwaltungsgerichtshof).
On 28 February 1989 the Administrative Court quashed the decision
of 4 November 1987 on the ground that procedural law had been violated.
On 6 September 1989 the Supreme Land Reform Board, having
proceeded to supplementary investigations (two inspections of the site,
one further official expert opinion and submission of a private expert
opinion), again rejected the applicant's appeal. Insofar as the
applicant had again alleged the plot was often watery, it was stated
that this was only so in the case of exceptionally heavy rains, but
drainage work carried out meantime allowed normal agricultural use.
Furthermore it was considered that the consolidation measure did not
negatively affect the applicant.
The applicant again lodged a constitutional complaint. The
Constitutional Court rejected this complaint on 27 November 1989
stating that the decision complained of neither disclosed any
appearance of a violation of the right to property nor to the right to
have the dispute determined by an impartial tribunal established by
law.
On 24 April 1990 the Administrative Court likewise rejected the
applicant's complaints stating that the applicant's objections against
the composition of the agrarian senate were unfounded. The court
further notes that the lower authority had taken into account the
expert opinion submitted by the applicant. It considered that the
findings in the decision complained of were unobjectionable and the
applicant's complaints unfounded.
COMPLAINTS
The applicant alleges that as a consequence of the consolidation
proceedings she lost 6.64% of her real property. She also argues that
the practicability and value of the parcel allotted to her is seriously
affected by the one sided access. In this respect she invokes Article
1 of Protocol No. 1.
Furthermore she complains about the fairness and the length of
the proceedings and submits that more weight was given to the opinion
official expert than to her own private expert.
THE LAW
1. The applicant has mainly complained that her right to the
peaceful enjoyment of possessions, as guaranteed by Article 1 of
Protocol No. 1 (P1-1), was violated, alleging that the plot of land
allocated to her was 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 first notes that the applicant was deprived of her
property and therefore para. 1 second sentence of Article 1 (Art. 1)
applies. The applicant has 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 public interest.
Finally, as far as the question of a fair balance between the public
interest of the community and the requirements of the protection of the
individual's fundamental rights is concerned (cf. Eur. Court H.R.,
James and others judgment of 21 February 1986, Series A No. 98, p. 34,
para. 50), the Commission notes that the applicant received other
property in exchange which is nearer to her house than her former
property. It also notes in this context that the decisions complained
of were reached at on the basis of expert opinion, and further
extensive investigations confirming, in the opinion of the competent
judicial authorities, that the consolidation measure did not negatively
affect the applicant.
It can not in these circumstances be found that the competent
authorities exceeded their margin of appreciation and imposed an
intolerable, excessive burden on the applicant even considering that
compared to her former estate the new one was slightly smaller.
It follows that this part of the application has to be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. The applicant has further invoked Article 6 (Art. 6) of the
Convention arguing that she did not have access to an independent
tribunal which could have examined both the factual as well as the
legal issues in the dispute relating to the consolidation matter. She
also complains about the length of the proceedings.
Article 6 (Art. 6) of the Convention is applicable to the
proceedings in question (cf. Eur. Court H.R., Erkner and Hofauer
judgment of 23 April 1987, Series A No. 117, p. 60, para. 62).
a) Insofar as the right to a fair hearing is concerned the
Commission notes that the Administrative Court carefully examined the
applicant's arguments but held them to be unfounded. It has not been
shown that there were factual issues before the Administrative Court
which it was prevented from examining. Consequently it cannot be found
that the Administrative Court was in any way limited in its competence
to examine the complaints raised by the applicant. It follows that the
dispute on the question of whether or not the use of the applicant's
property was lawfully restricted was eventually decided on the basis
of a fair hearing by an impartial tribunal.
b) Insofar as the length of the proceedings is in question the
Commission first notes that the starting point is 25 October 1983 when
the applicant was first allotted a new parcel of land. The proceedings
ended with the Administrative Court's decision of 24 April 1990 and
thus lasted six years and six months.
In judging the reasonableness of the length of proceedings,
regard must be had to their nature, the handling by the authorities and
the applicants own conduct.
As to the nature of the proceedings here in question they seem
to have been of some complexity given that expert opinions were needed
to determine the question of whether or not the property allotted the
applicant replaced the previous property in an adequate manner and
could be used for agricultural purposes.
The handling of the matter by the authorities appears to be
unobjectionable as it was dealt with repeatedly by numerous instances,
each of which dealt with the case without apparent delays. Even
considering that the applicant herself did not cause any delay it
cannot in the particular circumstances of the case be found that the
total length of the period in question is unreasonable.
c) It follows that both complaints under Article 6 (Art. 6) have
likewise to be rejected in accordance with Article 27 para. 2
(Art. 27-2) as being manifestly ill-founded.
For these reasons the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy