Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22811/93

by Ernst and Anna LUGHOFER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, 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. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the 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 27 September 1993

by Ernst and Anna LUGHOFER against Austria and registered on 25 October

1993 under file No. 22811/93;

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 couple, both of Austrian nationality, are farmers

in Vöcklabruck. They are represented by Mr. E. Proksch, a lawyer

practising in Vienna.

It follows from their statements and the documents submitted that

their farm was involved in agricultural land consolidation proceedings

(Zusammenlegungsverfahren) under the Agricultural Land Planning Act

(Flurverfassungsgesetz). These proceedings were instituted by the

Agricultural Authorities at Gmunden (Agrarbezirksbehörde) on

22 February 1973.

A hearing at which the farmers concerned could express their

wishes (Wunschverhandlung) was held on 21 August 1984 and on 22 August

1985 the provisional transfer of the properties concerned was ordered.

Subsequently a consolidation plan (Zusammenlegungsplan) was adopted and

made public between 3 July and 21 July 1989 in the Pilsbach Town Hall

(Gemeindeamt). The applicants raised objections alleging that they had

not received adequate land in exchange for their parcels AK 2 and

AK 8. Their appeal (Berufung) was dismissed by the Provincial Land

Reform Board (Landesagrarsenat) in Linz on 5 July 1990 subsequent to

an oral hearing held in private, but in presence of the parties and

their lawyer.

The Board found that the applicants had acquired the parcels AK

2 and AK 8 by a sales contract concluded on 21 September 1984 with the

couple R. who had agreed to receive the compensation parcels provided

for as planned in the consolidation plan. Attempts to take into account

the compensation wishes of the new owners with regard to the plots in

question failed as two neighbours, namely H. and O. objected to a

change of the adopted project of the consolidation plan.

The Board further found that although the value classification

of the newly-allotted parcels was 5 to 6 points lower than the

applicants' original properties this unimportant disadvantage was

counterbalanced by the fact that the newly-attributed parcels were

better formed and situated. They were also sufficiently accessible via

public roads. Examining all the circumstances in detail the Board came

to the conclusion that the applicants had received adequate

compensation and their objections were therefore unfounded.

The applicants then brought the case to the Administrative Court

which dismissed their appeal (Beschwerde) on 15 December 1992 as being

unfounded. This decision was received by applicant's counsel on

22 April 1993.

The court noted that judged globally the new territories

attributed to the applicants in exchange for their former territories

were as valuable. In respect of the applicants' allegation that

compensation parcel no. 25/56 was difficult to accede to, the court

noted that a new transport road had been constructed and easy access

was now guaranteed. In so far as the applicants had alleged to have

paid an important price for their former parcel AK 8 and that this

parcel was also future construction land, the court noted that the

price allegation had not been made in the prior proceedings and that

the allegation as to constructability was contrary to the existing

plans. After examination of all factual circumstances on the basis

also of a comparison of reference values (Wertklassen) the court

concluded that the applicants had received adequate land parcels in

compensation. Therefore the applicants' argument that they were not

bound by their predecessors' acceptation of the consolidation plan was

irrelevant.

The court finally noted in its decision that, in accordance with

Section 39 para. 2 no. 6 of the Administrative Court Act (VwGG), it had

not granted the applicants' request for an oral hearing.

COMPLAINTS

The applicants maintain that their right to the peaceful

enjoyment of possessions was violated in that the compensation parcel

they received for their parcel AK 8 was insufficient. The compensation

parcel no. 25/56 was practically worthless and could at best be sold

at 10 AS per square metre while their former parcel had a value of

62,80 AS per square metre.

They also invoke Article 6 of the Convention on the ground that

the land consolidation proceedings were not held in public.

THE LAW

1. The applicants have complained that their right to the peaceful

enjoyment of possessions, as guaranteed by Article 1 of Protocol No.

1 (P1-1), was violated, alleging that the land allocated to them in the

land consolidation proceedings 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 considers that the measure in question concerned

the regulation of the use of the applicants' property. It first notes

that the applicants have 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 general interest.

Finally, as far as the question of a fair balance between the general

interest of the community and the requirements of the protection of the

individual's fundamental rights is concerned (cf. Eur. Court H.R.,

Sporrong and Lönnroth judgment of 24 September 1982, Series A No. 52,

p. 26, para. 69), the Commission notes that according to the findings

of the Austrian Administrative Court the applicants received adequate

compensation parcels and they have not shown that this finding is

arbitrary and that in fact the attribution of other land deprives them

of a considerable part of their property values such as to constitute

an intolerable and excessive burden on them.

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 applicants have furthermore complained that in the land

consolidation proceedings they were denied an oral hearing held in

public.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government without however requesting written observations before a

judgment is given in the case of Stallinger and Kuso pending before the

European Court of Human Rights and raising a similar issue.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicants' complaint that there has

been an unjustified interference with their property rights.

DECIDES TO ADJOURN the applicants' complaint that they did not

have a public hearing in the land consolidation proceedings.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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LUGHOFER v. AUSTRIA

LUGHOFER v. AUSTRIA

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