Lexploria

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

Menu

PRÖTSCH v. Austria

PRÖTSCH v. Austria

LEXI