Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17592/90

by Alois and Herma DANNER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 1993, 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

G.B. REFFI

B. CONFORTI

N. BRATZA

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 21 July 1988 by

Alois and Herma DANNER against Austria and registered on 21 December

1990 under file No. 17592/90;

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, a married couple, are Austrian citizens living

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

practising in Vienna.

It follows from the applicants' statements and the documents

submitted by them that they are running a farm in Ohlsdorf.

According to a decree of 16 February 1984 issued by the District

Agricultural Authority (Agrarbezirksbehörde - "the District Authority")

in Gmunden, the applicants' real estate property of some 20 hectares

was included in consolidation proceedings.

On 8 October 1986, the District Authority ordered the provisional

transfer of the newly allotted plots to the farmers participating in

the consolidation proceedings.

The applicants lodged an appeal (Berufung) with the Provincial

Land Reform Board (Landesagrarsenat - "the Provincial Board") of Upper

Austria. They claimed that the new property provisionally allotted to

them was not as valuable as their prior property and that the yield per

year and hectare would be some AS 70 000 lower.

On 25 June 1987, the Provincial Board rejected the appeal as

being unfounded. It is stated in the decision that the provisional land

transfer had been effected in accordance with the law. The question of

whether or not the newly allotted land constituted adequate

compensation could only be examined later once the consolidation plan

had been adopted. Finally it is stated that the total new area which

was provisionally allotted to the applicants covered 61% of their

former property and that there was nothing to show that the attribution

clearly ran counter to the principles of the Agricultural Land Planning

Act (Flurverfassungs-Landesgesetz), according to which the transfer had

to be effected in a manner as to guarantee the best possible

cultivation of the newly allotted property. Even the private expert

opinion submitted by the applicants had not shown or even alleged that

this principle was not respected.

The applicants then lodged a constitutional complaint. They

complained that in their case, the Provincial Board had not been

correctly composed as two of the board members, namely H-P. Th., a

judge of the District Court, and K. Pf., a civil servant, had

participated in their capacity as substitute members while no

explanation was given that and why the ordinary members which they

replaced had been prevented.

Furthermore they alleged a violation of their property right.

They claimed that Section 22 of the Agricultural Land Planning Act

which authorises the agricultural authorities to proceed to provisional

land transfers was unconstitutional in that it allows to provisionally

allocate to a farmer less valuable land than taken from him without

providing for compensation in respect of the financial losses thereby

incurred.

The Provincial Board submitted observations in reply arguing

inter alia, that there was no proof for the applicant's allegation that

the provisional transfer caused them damages. In any event, so it is

pointed out, the applicants could make a request for compensation which

had to be addressed to the District authorities.

On 11 December 1987, the Austrian Constitutional Court

(Verfassungsgerichtshof) refused to admit the constitutional complaint

for decision on its merits. Applicant's counsel states that the

decision was communicated on 29 January 1988. It is stated in the

decision that the alleged violations, if they existed, were only the

consequence of an alleged wrong application of non-constitutional, i.e.

ordinary law. To this extent the constitutional complaint did not raise

any issues of constitutionality. In so far as the constitutional

complaint raised issues that could be examined by the Constitutional

Court, they were in view of the court's constant jurisprudence not

offering any prospect of success.

Finally it is pointed out that the matter could be brought before

the Administrative Court (Verwaltungsgerichtshof).

COMPLAINTS

The applicants point out that in the domestic proceedings, they

had shown by way of an expert opinion that the land provisionally

allotted to them would yield considerably less than the property taken

from them. They submit that Austrian law does not provide any remedy

in this respect, that means they can neither obtain a rectification of

the provisional transfer nor money compensation for the loss of yield.

Consequently they consider that the provisional transfer violates their

right to the peaceful enjoyment of possessions as guaranteed by Article

1 of the first Protocol.

The applicants furthermore argue that they did not have an

effective remedy against the District Authorities' decision relating

to the provisional transfer of property. The District Authority is

however in their opinion no tribunal in the sense of Article 6 of the

Convention. They submit that the District Authorities as well as the

Provincial Board act both as executive, expert and judge and can

therefore not be considered to be impartial and independent within the

meaning of Article 6 of the Convention.

THE LAW

1. The applicants have first submitted that their property right as

guaranteed by Article 1 of the First Protocol (P1-1) is violated

because first, the land provisionally allotted to them yields less than

their previous land and second, they cannot claim compensation in this

respect.

Even assuming that domestic remedies were exhausted although the

applicants have not shown that they made a request for compensation as

suggested in the Provincial Board's observations submitted to the

Austrian Constitutional Court, the Commission considers, for the

following reasons, that the present complaint can be rejected as being

manifestly ill-founded.

Article 1 of the First Protocol (P1-1) reads:

"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 to use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission first notes that the provisional transfer can

neither be regarded as a "deprivation of possessions" nor as a measure

controlling the "use" of the land. It therefore has to be considered

under the first sentence of the first paragraph of Article 1 (Art. 1)

(Eur. Court H.R., Poiss judgment of 23.4.1987, Series A No. 117, p. 108

para. 64).

For the purposes of this provision, it has to be examined whether

a proper balance was struck between the demands of the community's

general interest and the requirements of protecting the fundamental

rights of the individual (loc. cit., p. 108 para. 65).

In the Poiss judgment cited an inbalance was found to exist in

view of the fact that the domestic proceedings had dragged on for

nearly twenty-four years without the adoption of a final consolidation

plan.

In the present case the applicants have not shown that the

alleged loss of yield is of such importance that even if the final

consolidation plan were adopted within a reasonable period of time, it

constituted an individual and excessive burden (cf. Eur. Court H.R.,

Sporrong and Lönnroth judgment of 23.09.1982, Series A No. 52, p. 28,

para. 73).

There is consequently no appearance of a violation of the

provision in question and this part of the application therefore has

to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants furthermore invoke Article 6 (Art. 6) of the

Convention arguing that they did not have access to an independent and

impartial tribunal within the meaning of the provision invoked by them.

The Commission notes however that the present complaint was not

raised before the Austrian Constitutional Court as the applicants had

limited themselves in their constitutional complaint to criticising the

participation in the decision making of the Provincial Board of

substitute members.

They have not shown also to have raised their present complaint

that the Provincial Board allegedly acts both as executive, expert and

judicial organ.

In these circumstances, they cannot be considered to have

exhausted domestic remedies and to this extent the application has to

be rejected in accordance with Articles 26, 27 para. 3 (Art. 26, 27-3)

of the Convention.

The Commission notes in addition that the applicants had the

possibility to have their case decided by the Austrian Administrative

Court.

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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DANNER v. AUSTRIA

DANNER v. AUSTRIA

LEXI