Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17591/90

by Waltrand ZWATZ

against Austria

The European Commission of Human Rights sitting in private on

31 March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

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 30 August 1990 by

Waltrand ZWATZ against Austria and registered on 21 December 1990 under

file No. 17591/90;

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 applicant is an Austrian citizen, born in 1943 and living in

Vienna. She is represented by her husband who is a civil servant.

It follows from the applicant's statements and the documents

submitted by her that on 29 October 1985 the Provincial Land Reform

Board (Landesagrarsenat) of the regional government of Burgenland

changed at the applicant's request a consolidation plan

(Zusammenlegungsplan) concerning the community of Hornstein in that a

parcel of land no. 5992 allotted to the applicant on 25 October 1983

was consolidated with another parcel no. 5989 and the consolidated

parcel was then divided in a different manner than before and one part

re-allotted to the applicant. In this manner, the border line between

the two neighbouring plots was re-defined. The applicant's request for

a straightening of the border line was however not fully granted.

On appeal (Berufung) by the applicant the decision of 29 October

1985 was quashed on 1 October 1986 by the Supreme Land Reform Board of

the Federal Ministry of Agriculture (Oberster Agrarsenat) and the

matter referred back for a new decision.

On 15 June 1987 the Land Reform Board gave another decision

tracing new limits for the applicant's plot without granting however

her request to enable access for motor vehicles from two sides of the

plot. It is stated in the decision that the applicant could make a U-

turn and therefore did not need access from two sides. The decision

furthermore referred to two expert opinions which confirmed that the

plot in question could be used for any kind of agricultural purposes

and in a rational manner. It was also pointed out that the newly

allotted plot was far nearer to the applicant's home than her former

property.

The applicant's appeal against this decision was rejected on 4

November 1987 by the Supreme Land Reform Board .

The applicant then lodged a constitutional complaint. On 25

February 1988 the Constitutional Court (Verfassungsgerichtshof)

rejected this complaint as being inadmissible and referred the matter

to the Administrative Court (Verwaltungsgerichtshof).

On 28 February 1989 the Administrative Court quashed the decision

of 4 November 1987 on the ground that procedural law had been violated.

On 6 September 1989 the Supreme Land Reform Board, having

proceeded to supplementary investigations (two inspections of the site,

one further official expert opinion and submission of a private expert

opinion), again rejected the applicant's appeal. Insofar as the

applicant had again alleged the plot was often watery, it was stated

that this was only so in the case of exceptionally heavy rains, but

drainage work carried out meantime allowed normal agricultural use.

Furthermore it was considered that the consolidation measure did not

negatively affect the applicant.

The applicant again lodged a constitutional complaint. The

Constitutional Court rejected this complaint on 27 November 1989

stating that the decision complained of neither disclosed any

appearance of a violation of the right to property nor to the right to

have the dispute determined by an impartial tribunal established by

law.

On 24 April 1990 the Administrative Court likewise rejected the

applicant's complaints stating that the applicant's objections against

the composition of the agrarian senate were unfounded. The court

further notes that the lower authority had taken into account the

expert opinion submitted by the applicant. It considered that the

findings in the decision complained of were unobjectionable and the

applicant's complaints unfounded.

COMPLAINTS

The applicant alleges that as a consequence of the consolidation

proceedings she lost 6.64% of her real property. She also argues that

the practicability and value of the parcel allotted to her is seriously

affected by the one sided access. In this respect she invokes Article

1 of Protocol No. 1.

Furthermore she complains about the fairness and the length of

the proceedings and submits that more weight was given to the opinion

official expert than to her own private expert.

THE LAW

1. The applicant has mainly complained that her right to the

peaceful enjoyment of possessions, as guaranteed by Article 1 of

Protocol No. 1 (P1-1), was violated, alleging that the plot of land

allocated to her 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 first notes that the applicant was deprived of her

property and therefore para. 1 second sentence of Article 1 (Art. 1)

applies. The applicant has 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 public interest.

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

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

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

James and others judgment of 21 February 1986, Series A No. 98, p. 34,

para. 50), the Commission notes that the applicant received other

property in exchange which is nearer to her house than her former

property. It also notes in this context that the decisions complained

of were reached at on the basis of expert opinion, and further

extensive investigations confirming, in the opinion of the competent

judicial authorities, that the consolidation measure did not negatively

affect the applicant.

It can not in these circumstances be found that the competent

authorities exceeded their margin of appreciation and imposed an

intolerable, excessive burden on the applicant even considering that

compared to her former estate the new one was slightly smaller.

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 applicant has further invoked Article 6 (Art. 6) of the

Convention arguing that she did not have access to an independent

tribunal which could have examined both the factual as well as the

legal issues in the dispute relating to the consolidation matter. She

also complains about the length of the proceedings.

Article 6 (Art. 6) of the Convention is applicable to the

proceedings in question (cf. Eur. Court H.R., Erkner and Hofauer

judgment of 23 April 1987, Series A No. 117, p. 60, para. 62).

a) Insofar as the right to a fair hearing is concerned the

Commission notes that the Administrative Court carefully examined the

applicant's arguments but held them to be unfounded. It has not been

shown that there were factual issues before the Administrative Court

which it was prevented from examining. Consequently it cannot be found

that the Administrative Court was in any way limited in its competence

to examine the complaints raised by the applicant. It follows that the

dispute on the question of whether or not the use of the applicant's

property was lawfully restricted was eventually decided on the basis

of a fair hearing by an impartial tribunal.

b) Insofar as the length of the proceedings is in question the

Commission first notes that the starting point is 25 October 1983 when

the applicant was first allotted a new parcel of land. The proceedings

ended with the Administrative Court's decision of 24 April 1990 and

thus lasted six years and six months.

In judging the reasonableness of the length of proceedings,

regard must be had to their nature, the handling by the authorities and

the applicants own conduct.

As to the nature of the proceedings here in question they seem

to have been of some complexity given that expert opinions were needed

to determine the question of whether or not the property allotted the

applicant replaced the previous property in an adequate manner and

could be used for agricultural purposes.

The handling of the matter by the authorities appears to be

unobjectionable as it was dealt with repeatedly by numerous instances,

each of which dealt with the case without apparent delays. Even

considering that the applicant herself did not cause any delay it

cannot in the particular circumstances of the case be found that the

total length of the period in question is unreasonable.

c) It follows that both complaints under Article 6 (Art. 6) have

likewise to be rejected in accordance with Article 27 para. 2

(Art. 27-2) as being manifestly ill-founded.

For these reasons the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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ZWATZ v. AUSTRIA

ZWATZ v. AUSTRIA

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