Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15508/89

by Ludwig and Maria PRÖTSCH

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 12 June 1989 by

Ludwig and Maria PRÖTSCH against Austria and registered on 15 September

1989 under file No. 15508/89;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on 25 May

1992 and the observations in reply submitted by the applicant on

9 July 1992;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as submitted by the applicants, may be summarised as

follows :

The applicants, Austrian citizens who own a farm in Wufing, Upper

Austria, are represented by Mr. Erich Proksch, a lawyer practising in

Vienna. They complain of the length of agricultural proceedings and 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).

The proceedings were apparently instituted ex officio in 1979.

In 1979 and 1980 the Gmunden Agricultural District Authority

(Agrarbezirksbehörde) ordered the provisional transfer (vorläufige

Ãœbergabe) of the compensation parcels.

The consolidation plan (Zusammenlegungsplan) was issued in

October 1983.

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.

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 have been partly dismissed, as the

compensation of the applicants was an indivisible whole.

On 11 July 1985 the Provincial Land Reform Board set the

consolidation plan aside on the ground that the compensatory parcels

did not fully reach the quality of the former parcels and that

therefore the compensation was not lawful, and referred the case back

to the District Authority.

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.

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. 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.

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.

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.

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 show

any prospects of success.

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

1979/80. They had immediately complained of the situation created by

this measure which, however, remained in force until the conclusion of

the consolidation proceedings in 1987, causing them important losses

of crops during seven 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. They allege in particular

that the Land Reform Boards, when deciding on claims for compensation

arising from the assignation of insufficient parcels of the provisional

transfer of land, are not impartial because they are themselves

responsible for the decision by which a damage was caused to the

private party concerned.

THE LAW

1. The applicants complain that by a provisional transfer of lands

ordered in connection with agricultural land consolidation proceedings

in 1979 and 1980 they received insufficient compensation parcels and

that this situation was maintained for seven years until 1987 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).

The respondent Government point out that in the present case,

the restriction of the applicants' property right caused by the

provisional transfer of lands was maintained only for about six years,

which is considerably shorter than in the above-mentioned cases.

They also consider that the applicant did receive adequate compensation

parcels and did not have to bear a disproportionate burden.

The applicants maintain that they sustained important losses which

in their opinion are proven by the fact that eventually the

consolidation plan was set aside on the ground that their compensatory

parcels did not fully reach the quality of the former ones.

In this respect the Commission recalls the Erkner/Hofauer case

where it stated inter alia the following (Application No. 9616/81,

Comm. Rep. 24.1.86, para. 131):

"The Commission considers that it can in principle be

justified in the public interest that by the operation of the

provisional transfer of lands, as conceived by the domestic

legislation, the individual has to sustain a temporary

disadvantage if this disadvantage is not wholly disproportionate

to the legitimate aim generally pursued by this measure. There

is no appearance that such a measure is in itself contrary to

Article 1 of the Protocol (P1-1)."

On the other hand the Commission has recently declared

admissible an application where the same type of restriction was

maintained for eleven years (No. 12650/87, Dec. 31.5.91, unpublished).

Although the period in question is of only seven years the

present case is still comparable to the above case and the Commission

therefore finds that the complaint under Article 1 Protocol No. 1

(P1-1) raises complex and difficult issues which require to be

determined as to the merits. It follows that the applicants' complaint

cannot be dismissed as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for

declaring it inadmissible has been established.

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.

The Commission notes that the applicants' above allegations are

essentially the same as those submitted by the applicant in the

Ettl case (Eur. Court H.R., judgment of 23 April 1987, Series A

No. 117). 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.

3. The applicants furthermore complain that the land reform

authorities, when deciding on claims for compensation, were not

"impartial" within the meaning of Article 6 (Art. 6) of the Convention.

The Commission notes, that in the present case the Land Reform

Boards declined jurisdiction to decide on the applicants' compensation

claim. It follows that the authorities in fact did not decide on the

merits of the compensation claim in question. Therefore an issue of

impartiality as alleged by the applicants cannot arise. This part of the

application is accordingly also manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits of the case, the

applicants' complaint of unjustified interference with their right

to the peaceful enjoyment of possessions.

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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PRÖTSCH v. AUSTRIA

PRÖTSCH v. AUSTRIA

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