Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 12650/87

Wieninger

against

Austria

REPORT OF THE COMMISSION

(adopted on 11 January 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 17). . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2 - 4). . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5 - 12) . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 13 - 17) . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 18 - 26) . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 27 - 39). . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 27). . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 28). . . . . . . . . . . . . . . . . . . . .5

C. Article 1 of the First Protocol

(paras. 29 - 38). . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 39). . . . . . . . . . . . . . . . . . . . . . .7

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . .8

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . .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, the first applicant born

in Weitersfeld and the second applicant in Rasingdorf, and resident in

Weitersfeld. They were represented before the Commission by

Mr. Erich Proksch.

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. Franz Cede.

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

lower Austrian Agricultural Land-Planning Act (Flurverfassungesetz).

The applicants invoke Article 1 of Protcol No. 1 to the Convention.

B. The proceedings

5. The application was introduced on 12 December 1986 and registered

on 22 January 1987.

6. On 11 July 1989 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 Government's observations were submitted on 20 November 1989

after one extension of the time-limit fixed for this purpose. The

applicants replied on 3 January 1990 and 11 February 1991 after one

extension of the time-limit.

8. The case was referred to the Second Chamber on 8 December 1990.

9. On 31 May 1991 the Commission (Second Chamber) declared

admissible the applicant's complaint under Article 1 of the First

Protocol. It declared inadmissible the remainder of the application.

10. The case was subsequently transferred to the First Chamber.

11. The text of the Commission's decision on admissibility was sent

to the parties on 10 June 1991 and they were invited to submit such

further information or observations on the merits as they wished.

12. 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

13. 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:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

14. The text of this Report was adopted on 11 January 1994 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

15. 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.

16. 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.

17. 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

18. The applicants, Austrian citizens who own a farm at Weitersfeld,

Lower Austria, are represented by Rechtsanwalt Dr. Erich Proksh 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

(Zusammenlegungsverfahren) under the Lower Austrian Agricultural Land

Planning Act (Flurverfassungsgesetz).

19. The proceedings in question were instituted ex officio

in January 1969. In October 1971 the Agricultural District Authority

(Agrarbezirksbehörde) 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.

20. 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.

21. 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.

22. 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 awarded unlawful compensation parcels at the stage of 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).

23. 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.

24. 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.

25. 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.

26. 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 expert. They did not

comply and therefore the proceedings remained suspended. According to

the applicant the proceedings will remain suspended in order to await

the outcome of the present application proceedings.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

27. 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:

28. Whether the applicants' right to the peaceful enjoyment of

possessions as guaranteed by Article 1 of the First Protocol (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 eleven years of consolidation

proceedings.

C. Article 1 of the First Protocol (P1-1)

29. Article 1 of the First Protocol (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."

30. The applicants allege that the compensation parcels allotted to

them in 1971 caused them annual losses of some AS 50,000 per year. As

the situation complained of lasted eleven years, their total loss

allegedly amounts to AS 600,000. This damage, so they submit,

exclusively follows from the fact that their compensation parcels

attributed to them are less valuable and has nothing to do with the

manner in which the compensation parcels are being cultivated.

31. The respondent Government argue that denying financial

compensation for the disadvantages alleged by the applicants did not

amount to a violation of Article 1 of the First Protocol (P1-1). They

first submit that the provisional transfer creates a condition enabling

all parties involved to test the new distribution of parcels and, in

doing so, makes it possible for the experience gained to be taken into

account when the final consolidation plan is drawn up. Thus, it is an

adequate and often necessary means to attain the goals of agricultural

consolidation, the new distribution and development of agricultural and

forestry holdings as well as to establish the legal and economic basis

of agricultural and forestry enterprises according to the principles

of modern economics and business management. The adjusted agricultural

structure created in such a way finally benefitted all parties

involved. The advantages gained from this improvement had to be rated

much higher than the disadvantages experienced during the proceedings.

They furthermore submit that in proceedings involving a variety of

parties it would be impossible to quantify the advantages or

disadvantages for each individual party. Also one would have to bear

in mind that in cases where the competent authorities eventually find

the initial compensation unlawful and change it accordingly, it would

be difficult to determine a possible disadvantage for the reason that,

as a rule, it is hardly possible or not possible at all to ascertain

the reasons for the initial assessment as no written documents are

available. The economic yield also depended on the individual

entrepreneur. In view of the foregoing considerations, the respondent

Government concludes that the advantages connected with the legal

measure of provisional transfer would seem to be substantially greater

than the temporary disadvantages some individual parties concerned may

have to suffer. Finally, it is pointed out that the provisional

transfer can become effective only if at least two-thirds of the

parties concerned agree to it.

32. The Commission first notes that in the present case the draft

consolidation plan on which the provisional transfer in question was

based was elaborated in 1971 and adopted in 1972. The provisional

transfer was ordered in October 1971. The plan was then quashed on

6 September 1978 but the applicants did not obtain other compensation

parcels which they considered as satisfactory before autumn 1982.

33. The applicants consequently had to content themselves for eleven

years with compensation parcels which were apparently insufficient as

they eventually were attributed other compensation of parcels. The

amount of damage sustained by the applicants is in dispute between the

parties. This issue can be left undetermined. What is relevant in the

present case is the fact that the applicants cannot claim compensation

under Austrian law in respect of the alleged losses incurred during the

consolidation proceedings.

34. The European Court of Human Rights has already recognised in the

Erckner and Hofauer judgment and the Poiss judgment, both of

23 April 1986 (Series A no. 117) that the system of provisional land

transfers is not as such contrary to Article 1 (P1-1) as long as no

disproportionate burden is placed on the individual land-owner.

35. The Court has considered such transfers under the first paragraph

of Article 1 (P1-1-1). 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., pg. 66 para. 78 and pg. 109

para. 68)."

36. The Court then concluded that the necessary balance between

protection of the right of property and the requirement of the public

interest was lacking.

37. 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 eleven 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.

38. 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 the First Protocol

(P1-1), in that an individual and excessive burden is thereby imposed

on such owners.

CONCLUSION

39. The Commission concludes, unanimously that in the present case

there has been a violation of Article 1 of the First Protocol (P1-1)

to the Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

12 December 1986 Introduction of the application

22 January 1987 Registration of the application

Examination of Admissibility

11 July 1989 Decision of the Commission to invite

the Government to submit observations

on the admissibility and merits of

the application

20 November 1989 Government's observations

3 January 1990 Applicants' observations in reply

8 December 1990 Decision to refer the application to

a Chamber

11 February 1993 Applicants' additional observations

in reply

31 May 1991 Commission's (Second Chamber)

decision on admissibility

Examination of the merits

2 December 1992 Commission's consideration with a

view to friendly settlement

6 April 1993 Consideration of state of

proceedings

7 September 1993 Consideration of state of

proceedings

11 January 1994 Commission's (First Chamber)

deliberations on the merits, final

vote and adoption of the Report

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WIENINGER v. AUSTRIA

WIENINGER v. AUSTRIA

LEXI