Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19166/91

by Josef, Ingeborg and Anna POISS

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 6 April 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 26 July 1991

by against Josef, Ingeborg and Anna POISS and registered on 6

December 1991 under file No. 19166/91;

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 applicants are Austrian citizens and farmers in

Palterndorf. They are represented by Mr. E. Proksch, a lawyer

practising in Vienna. All three applicants belong to the Poiss

family.

It follows from their submissions and the documents

submitted that the applicants were parties in land consolidation

proceedings. The first land consolidation plan concerning the

applicants' community had been issued by the Lower Austrian

District Agricultural Authority (Agrarbezirksbehörde) on 1

September 1965. The applicants, Leopold and Barbara Poiss lodged

appeals which were to no avail. However, on 1 October 1975 a

request for a retrial was granted by the Supreme Land Reform

Board (Oberster Agrarsenat - "the Supreme Board").

Eventually, by decision of 6 March 1985, the Supreme Board

amended the original consolidation plan in favour of the

applicants, Leopold and Barbara Poiss but rejected their request

for the payment of compensation.

All the applicants appealed to the Administrative Court

which on 15 July 1986 quashed the Supreme Board's decision as

regards the land in compensation, on the grounds of procedural

irregularities. The claim for financial compensation was however

dismissed by the Administrative Court for want of any statutory

basis.

The Poiss family then brought an application before the

European Commission of Human Rights which was eventually decided

by the European Court of Human Rights which held in its judgment

of 23 April 1987 (Series A, No. 117, p. 86 et. seq.) that there

had been a breach of Article 6 para. 1 of the Convention as

regards observance of the "reasonable time" requirement. It

further held that there had been a breach of Article 1 of

Protocol No. 1. In the latter respect the Court took into

consideration that nearly twenty four years had already lapsed

since the provisional transfer of compensation parcels without

the applicants having received under a final consolidation plan

the compensation in land provided for by law. The Court further

considered that the applicants did not have any possibility of

obtaining compensation for the loss they might have sustained on

account of the forced exchange of their land for other inferior

land pursuant to the provisional transfers. It concluded that

under these particular circumstances the necessary balance

between protection of the right of property and the requirements

of the public interest was lacking.

Insofar as the applicants had criticised the fact that the

hearings before the Land Reform Boards were not held in public

and contended that the boards were not independent and impartial,

the European Court of Human Rights pointed out that these were

new complaints which had not been raised as such before the

Commission. Consequently the Court considered that it had no

jurisdiction to entertain these complaints (par. 49 of the

judgment of 23 April 1987).

In the domestic proceedings the Supreme Board on 4 May 1988

confirmed the earlier consolidation measures and drew up a new

consolidation plan. It dismissed as being unfounded the

applicant family's claim that the compensation parcels allotted

to them were insufficient and the compensation therefore unlawful.

Insofar as the applicants had relied on an expert opinion

by expert B., the Supreme Board pointed out that the expert had

visited the sites in question ten years after the provisional

transfer. His opinion on the original value could only therefore

be based on indications he received from the applicants, i.e. the

parties. Examining in detail the different compensation parcels

in question and certain points raised in the expert opinion, the

Supreme Board came to the conclusion that the complainants had

received adequate compensation both as regards size and value

which was therefore unobjectionable.

Insofar as the applicants had alleged that part of their

former property had been of special value in that the land in

question was constructible, the Supreme Board relied on an expert

estimation on the market values of the compensation parcels as

compared to the applicant's prior property and pointed out that

the estimated value of the compensation parcels was even higher

than those of the previous properties.

Insofar as a private expert of the applicants came to a

different conclusion the Board stated that this expert had not

taken into account that the parcels in question had for decades

been used as farm land. It also pointed out that the official

expert opinion proved to be correct as the estimated values

corresponded to the prices obtained for the sale of comparable

parcels. The Board concluded that for their constructible land

the applicants had received constructible compensation parcels

of the same value.

Insofar as the applicants had alleged that two of the

previous parcels had to be regarded as constructible in view of

their proximity to the community, the Board stated that there

were no concrete indications that these parcels would in the near

future become constructible.

Finally, the Supreme Board rejected the applicant's

complaint that the compensation parcels had been arbitrarily

distributed among the Poiss family members by the authorities.

The Board considered that, when attributing compensation parcels,

the authorities had correctly taken into account the pre-existing

proprietorial situation. Lastly, the Supreme Board stated that

it had seen no reason to invite the expert to attend the oral

hearing and to proceed to a visit of the properties in question.

It added that in any event, according to constant jurisprudence,

the parties did not have a right to put questions to the expert

and the applicable procedural law did not provide for a hearing

on the spot (Lokalaugenschein).

The applicants then lodged a constitutional complaint which,

however, the Constitutional Court (Verfassungsgerichtshof)

refused to admit for a decision on the merits. It is stated in

its decision of 28 November 1988 that insofar as the applicants'

alleged violations of their property right, of their right to

equal treatment and to a fair trial before an impartial tribunal,

they did not raise any issues of constitutional law, the alleged

violations being the result of the alleged misapplication of

ordinary law. Insofar as violations of Article 6 of the

Convention had been alleged, the court referred to its own case-

law and to the Ettl judgment of 23 April 1987 of the European

Court of Human Rights from which it follows that the complaints

were clearly unfounded.

The applicants also appealed to the Administrative Court

(Verwaltungsgerichtshof) which dismissed their appeal on

4 December 1990 (served on 31 January 1991) as being unfounded.

It is stated in the Administrative Court's decision that the

procedural rules for administrative proceedings did not provide

for a right of parties to put questions to experts.

Insofar as the applicants had complained that the court-

appointed expert had not sufficiently taken into account the

quality of the soil of the real estate in question, the court

pointed out that under the applicable law the compensation

parcels had to be equivalent (gleichartig) to their prior

property. The court replied that "equivalent" did not mean that

the parcels were equal or homogeneous in every respect. They

only had to be equal with regard to the specific value. However,

in the prior proceedings the applicants had only alleged that the

compensation parcels were less valuable and less well situated.

Also in their complaint to the Constitutional Court they had

alleged that the location and the extension of the compensation

parcel were not equal to the prior property. However, so the

Administrative Court pointed out, the compensation parcels were

all situated in the vicinity of the same road and only some

hundred meters away from the prior property. It was also

uncontested that the compensation parcels constituted viable

constructible plots of a size of 3,715 sq. meters while the

comparable constructible former property was of a size of 3,360

sq. meters. Therefore the applicants' complaints in this respect

were considered to be unfounded.

The Administrative Court furthermore stated that the

applicants had not indicated any reasons for the motion to have

another hearing on the spot and that there had in fact been no

necessity for such further taking of evidence.

In addition to the argument that the applicant had received

as many square meters of real property as they had been obliged

to give away, the court pointed out that the fact that part of

the applicants' prior property was of special value because of

its constructibility had been taken into account twice by the

authorities when fixing the compensation.

Insofar as the applicants had complained that the community

and other parties to the consolidation proceedings had not been

heard, it is stated in the decision that possible violations of

the rights of others were irrelevant in the present proceedings.

Furthermore the legality of the compensation in the applicants'

case did not depend on the question whether or not other parties

had received lawful compensation. In any event, the

consolidation plan and the manner in which it affected other

parties was accessible to or known by the applicants.

Finally the court stated that the attribution of

compensation parcels only to some members of the Poiss family was

unobjectionable for the reasons already stated in the decision

of the Supreme Board.

COMPLAINTS

The applicants submit that the Supreme Board, having itself

established the consolidation plan, could no longer be considered

as an impartial tribunal with regard to the question of whether

or not this consolidation plan was lawful. Furthermore, the

applicants complain that no other parties either in the community

or other farm owners were heard in their proceedings. They

therefore consider that they did not have a fair trial before an

impartial tribunal and these shortcomings were not remedied by

the fact that they could appeal to an Administrative Court.

They also allege a violation of Article 1 of Protocol No.

1 arguing that they did not receive adequate compensation parcels

in the land consolidation proceedings.

THE LAW

1. The applicants have invoked Article 6 (Art. 6) of the

Convention arguing that they did not have access to an

independent tribunal which could have examined their claim.

However, even assuming that Article 6 (Art. 6) applies and

further assuming that the present complaint has been brought

before the Commission within the six-months time-limit (Article

26) (Art. 26), the Commission notes that the applicants could and

in fact did complain of the Supreme Board's decision to the

Administrative Court the impartiality of which is not in

question. Further it has not been shown in the present case that

there were factual issues before the Administrative Court which

that court was prevented from examining (cf. Eur. Court H.R. Ettl

judgment of 23 April 1987, Series A, No. 117, p. 86 et. seq.

para. 34). Consequently it cannot be found that the

Administrative Court was in any way limited in its competence to

examine the issues raised by the applicants. The Administrative

Court found that the applicants' complaints were unfounded.

There is nothing to indicate that this finding is inconsistent

with any provisions of the Austrian legal order or arbitrary for

any other reason.

Insofar as the applicants complain that other persons

involved in the consolidation proceedings could not participate

in the proceedings relating to their appeals it has to be noted

that there is nothing to show that the applicants were thereby

prejudiced insofar as procedural guarantees are in question.

Consequently there is, in the particular circumstances of

the case, no appearance of a violation of Article 6 (Art. 6) of

the Convention and to this extent the application has therefore

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 further 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

compensation parcels allocated to them were 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 in the applicants' case

the consolidation plan was eventually amended in favour of the

applicants Leopold and Barbara Poiss by the Supreme Board on 6

March 1985 but the applicants' further appeals were rejected as

being unfounded. The Supreme Board and the Administrative Court

carefully examined the arguments advanced by the applicants and

also took into consideration the conclusion of the private expert

opinion submitted by them. However, they found that the private

expert based his opinion mainly on indications received from the

applicants. They also indicated reasons why they relied on the

official expert opinion and not that of the private expert. It

has not been shown that these reasons are unwarranted and in any

way incompatible with the evidence available to the domestic

courts. There is consequently nothing to show that attribution

of compensation parcels and the situation created thereby

constituted a measure imposing an intolerable or excessive burden

on the applicants.

It follows that this part of the application has likewise

to be rejected as being manifestly ill-founded within the meaning

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

For these reasons the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

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

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POISS v. AUSTRIA

POISS v. AUSTRIA

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