Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15506/89

by A.P., E.P., M.P.

and H.P.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 4 July 1989 by

A.P., E.P., M.P. and H.P. against Austria and registered on 15

September 1989 under file No. 15506/89;

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

of Procedure of the Commission;

Having regard to the Commission's decision of 7 October 1991 to

communicate the application;

Having regard to the observations submitted by the respondent

Government on 19 February 1992 and the observations in reply submitted

by the applicants on 25 March 1992;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicants may be summarised as

follows :

The applicants, Austrian citizens, own a farm at S., Burgenland.

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

Vienna.

Their farm is involved in agricultural land consolidation

proceedings (Zusammenlegungsverfahren) under the Agricultural Land

Planning Act (Flurverfassungsgesetz) of Burgenland.

The proceedings in question were ordered ex officio on 24 July

1961 by the Agricultural Authority of first instance (Agrarbehörde 1.

Instanz) established at the Provincial Government (Landesregierung).

In a hearing on 2 March 1964 the committee representing the parties in

the proceedings (Ausschuß der Parteien) did not raise any objections

against the projected roads and drains. However, on 5 March 1964 the

applicants' parents, who owned the farm at that time, raised objections

against a road projected directly behind their house and proposed to

relocate it elsewhere. The operational director in the proceedings

(Operationsleiter), however, proposed to carry out the road project as

planned.

On 7 April 1964, the Agricultural Authority of first instance

determined the state of occupation of land (Besitzstand) and the

valuation schedule (Bewertungsplan). Between 28 April and 12 May 1964

all parties were given notice of the state of occupation and the

valuation schedule.

On 19 May 1964 an "appeal" against the state of occupation of

land and the valuation schedule introduced by the applicants' parents

reached the Agricultural Authority of first instance. However, in this

"appeal" the applicants' parents raised only objections against the

above-mentioned road. By letter of 30 June 1964 the Provincial Land

Reform Board (Landesagrarsenat) informed the applicants' parents that

their submissions did not constitute an appeal and would be dealt with

as a mere suggestion to the operational director.

On 16 October 1964 the Agricultural Authority of first instance

ordered the provisional transfer of the compensatory parcels according

to the draft consolidation plan.

On 15 September 1964, 13 October and 24 November 1965 and

22 April 1966 the applicants and their mother (the father had died in

the meantime) raised objections against the planning of a drain

alongside their compensatory parcels and a possible granting of a

building-permit on another party's compensatory parcel. The authority

informed the applicants that their objections could not be dealt with

before the consolidation plan was issued.

On 24 August 1967 the Provincial Land Reform Board granted a

building-permit for a sawmill on the other party's compensatory parcel.

Subsequently, the first and the fourth applicant lodged a

complaint against the decision of 16 October 1964 with the

Constitutional Court (Verfassungsgerichtshof). On 26 June 1968 the

Constitutional Court dismissed the complaint and referred it to the

Administrative Court (Verwaltungsgerichtshof) which discontinued the

proceedings on 13 December 1968 as the applicants had not remedied

defects in the complaint.

On 31 October 1969 the consolidation plan (Zusammenlegungs-Plan)

was issued.

On 15 December 1969 the applicants and their mother appealed

against this decision, claiming inter alia that some of their parcels

had been included in the consolidation proceedings contrary to the law.

Moreover they claimed that the result of the proceedings was

incompatible with the requirements of the land reform legislation.

On 12 March 1971 the Provincial Land Reform Board dismissed the

appeal. This decision was confirmed by the Supreme Land Reform Board

(Oberster Agrarsenat) on 7 March 1973.

On 19 March 1974 the Constitutional Court quashed the decision

of the Supreme Land Reform Board on the ground that it had not been

competent to decide on the appeal. According to an amendment of the

relevant legislation the Provincial Land Reform Board's decision of

12 March 1971 had to be regarded as the final decision. The applicants

then lodged a complaint against the latter decision with the

Constitutional Court.

On 4 December 1974 the Constitutional Court quashed the decision

of 12 March 1971 and the Provincial Land Reform Board was accordingly

required again to determine the applicant's appeal against the first

instance consolidation plan of 31 October 1969.

On 8 April 1976 the Provincial Land Reform Board inspected the

land consolidation area.

On 10 June 1976 the Provincial Land Reform Board quashed the

consolidation plan as far as the road was concerned and referred this

part of the case back to the authority of first instance. The

remainder of the appeal was dismissed on the ground that the value of

the compensatory parcels corresponded to the value of the applicants'

former parcels. With regard to their original parcels, which in their

view were possible future building plots, the Land Reform Board found

that these parcels did not directly border on a built-up area. The

fact that later on a building permit had been granted for these parcels

to another party did not turn them into land of particular value, as

the valuation of the parcels had been finally decided. In any event,

the authority considered that the applicants had received land of the

same value.

On 5 March 1979 the Constitutional Court dismissed the

applicants' complaint and referred it to the Administrative Court.

On 30 October 1979 the Administrative Court quashed the

Provincial Land Reform Board's decision of 10 June 1976 holding that

the reasoning of the Board concerning the valuation of the parcels in

question had been based on an error of law. The Administrative Court

found that notwithstanding the initial valuation in 1964 the authority

would have been legally obliged to assess the value of the parcels on

the basis of their market value (Verkehrswert) at a later stage of the

proceedings. As parts of the parcels had in fact been designated as a

"development area for industrial buildings" (Aufschließungsgebiet für

Industriebauten) during the land consolidation proceedings, the

Administrative Court found the qualification of these parcels as

possible building plots to be reasonable. Moreover it denied that the

applicants had obtained a compensatory parcel of the same value.

On 22 April 1980 the Provincial Land Reform Board also referred

to the authority of first instance the remainder of the case which it

had not already referred back by its decision of 10 June 1976.

On 15 November 1982 the Agricultural Authority of first instance

decided that a road should be constructed across two of the applicants'

parcels and be transferred to the public property. The authority

allotted a number of compensatory parcels to the applicants and granted

them a certain amount of financial compensation.

On 13 June 1983 the Provincial Land Reform Board dismissed the

applicants' appeal. The applicants lodged a complaint with the

Constitutional Court.

On 22 November 1985 the Constitutional Court refused to deal with

the complaint and referred it to the Administrative Court.

On 8 November 1988 the Administrative Court quashed the decision

as far as it concerned the compensation of the applicants and dismissed

the remainder of the complaint. The matter was referred back.

On 1 June 1989 the Provincial Land Reform Board quashed the

decision of the agricultural authority of first instance dated

15 November 1982, and further referred the case back to this first

instance. It observed that it could not decide on the merits itself

because an oral hearing - which must be held before the first instance

- appeared unavoidable.

The Agricultural Authority of first instance made some proposals

which the applicants did not accept, but it did not take a decision

before 28 December 1990, after the applicants had made an application

for transfer of jurisdiction to the Provincial Land Reform Board. This

application was granted.

Eventually the matter was however decided by the Supreme Land

Reform Board to which the applicants had successfully complained of the

inaction of the Provincial Land Reform Board.

Before deciding on the matter, the Supreme Land Reform Board had

investigations carried out on the spot by delegates (Abgeordnete) on

19 March 1992.

On 1 April 1992 the Supreme Land Reform Board amended the

consolidation plan and designated the properties which the applicants

received as compensation.

It is stated in the decision that the applicants had a right to

receive real estate properties which corresponded in value to their

former property. The Board took into account that part of the

applicants' former property had become constructible subsequent to the

allotment. On the other hand, as the court pointed out, the applicants

had received constructible land in compensation and the size of this

land corresponded to their prior property. It was also pointed out

that the applicants had not put in question the value (Verkehrswerte)

of the property allotted to them. It is further pointed out that the

possible increase or decrease of value in respect of constructible land

would have had affected both the applicants prior property as well as

the property allotted to them and consequently they had not suffered

any damage.

The Board further found that the applicants had also received as

much property in size in respect of agricultural property as the

property which had been taken from them at the beginning of the

allotment proceedings.

Insofar as the applicant Ernestine Piplits had complained that

she had not received adequate compensation for the property No. 9679,

the Board pointed out that this property had been bought by the

applicant in 1982. However, at that time the decision on the re-

allocation of this particular property had already become binding

(rechtskräftig).

Insofar as the applicants complained that one of the new sites

allotted to them was hillside property, and therefore the costs of

construction would be higher than on flat land, as had been their

former property, the Board pointed out that, contrary to the

applicants' former corresponding properties, the new site offered the

possibility of constructing two houses with gardens while the

applicants' former plot had been too small for a comparable use.

Therefore possible higher construction costs were balanced by the

higher value of the property.

Subsequently the applicants lodged an appeal to the

Administrative Court. On 30 October 1992 the Supreme Land Reform Board

submitted its observations to the Administrative Court on the

applicants' appeal. The appeal is still pending.

COMPLAINTS

The applicants mainly complain under Article 6 para. 1 of the

Convention that in the above land consolidation proceedings their civil

rights have not been determined within a reasonable time. They further

allege that the competent agricultural authorities did not fulfil the

requirements of an independent and impartial tribunal.

The applicants also allege a violation of Article 1 of Protocol

No.1 to the Convention. They claim that as a result of the

authorities' failure to allot building plots to them which they could

have sold, they suffered a loss of some 700.000 AS. They fear further

losses by the expropriation of land near their farmhouse for the

purpose of the construction of a way of access which they regard as

superfluous.

PROCEEDINGS

The application was introduced on 4 July 1989 and registered on

15 September 1989.

On 7 October 1991 the Commission decided to give notice of the

application to the respondent Government who were invited to submit

observations in writing on the admissibility and merits of the

complaint under Article 6 para. 1 of the Convention before 7 January

1992. At the Government's request, this time-limit was subsequently

extended to 18 February 1992.

The Government submitted their observations on 19 February 1992

and the applicants replied thereto on 25 March 1992. The Government

submitted supplementary information on 24 February 1993.

THE LAW

1. The applicants mainly complain that, in agricultural land

consolidation proceedings concerning their property, their civil rights

and obligations were not determined "within a reasonable time" as

required by Article 6 para. 1 (Art. 6-1), first sentence of the

Convention, which reads as follows:

"In the determination of his civil rights and obligations...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The proceedings in question have started on 16 October 1964, when

the Agricultural Authority ordered the provisional transfer of property

in the applicants' case and have still not been terminated. It is

uncontested that Article 6 (Art. 6) applies to the proceedings in

question (Eur. Court H.R., Ettl and others judgment of 24 April 1987,

Series A No. 117, p. 16 para. 32). Furthermore the respondent

Government have not advanced any objections as to the admissibility of

this complaint.

The Commission considers in the light of the criteria established

by the case-law of the Convention organs on the question of "reasonable

time" (the complexity of the case, the applicants' conduct and that of

the competent authorities) and having regard to all the information in

its possession, that a thorough examination of this complaint is

required as to the merits.

2. The applicants further allege a violation of their right to the

peaceful enjoyment of possessions as guaranteed by Article 1 of

Protocol No. 1 (P1-1).

They allege that they received insufficient compensation in

exchange for the property taken from them, as allegedly the property

allotted to them is less valuable. The respondent Government deny

this.

The Commission first notes that domestic remedies are not yet

exhausted, as the application before the Administrative Court is still

pending. Nevertheless, in view of the length of the proceedings the

effectiveness of this remedy is in question.

The issue is linked to the merits and cannot therefore be

rejected as being inadmissible.

3. The applicants finally argue that the proceedings in question

were neither fair nor carried out before independent tribunals. They

submit that the members of the Land Reform Boards are in general

insufficiently informed, as examinations on the spot will be carried

out, if at all, by delegates only. Furthermore they criticise that

only the community is heard in the proceedings, and not all persons

affected by consolidation plans.

Finally they consider that the Agricultural Authority is

practically to be considered as a party.

The Government submit that the Provincial as well as the Supreme

Land Reform Board is an independent and impartial tribunal. They also

point out that no allegations have been advanced by the applicants

tending to show that they had justified reasons to doubt the

independence and impartiality of the judges in question.

The Commission first observes that the applicants have lodged

another appeal to the Administrative Court and consequently the

question might arise whether they have exhausted domestic remedies in

regard to this particular complaint. In any event it has to be noted

that delegates of the Supreme Land Reform Board carried out a local

inspection and that this Board examined the arguments of the parties.

There is nothing to show that the applicants have so far been denied

a fair hearing or that they had any justified reasons for doubting the

independence and impartiality of the judges of the Supreme Land Reform

Board which is in itself a tribunal established by law (Ettl and Others

judgment, loc. cit., p. 17 para. 34).

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.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE without prejudging the merits the

complaint relating to the length of the proceedings and the

complaint about the alleged violation of the applicants' right

to the peaceful enjoyment of possessions.

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber Acting President of the

First Chamber

(M.F. BUQUICCHIO) (E. BUSUTTIL)

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A.P., E.P., M.P. AND H.P. v. AUSTRIA

A.P., E.P., M.P. AND H.P. v. AUSTRIA

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