AS TO THE ADMISSIBILITY OF

Application No. 14696/89 Application No. 14697/89

by Alois and Amalia STALLINGER by Johann and Elisabeth KUSO against Austria                                                                  against Austria

The European Commission of Human Rights sitting in private on 29 March 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M. NOWICKI

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 November 1988 by Alois and Amalia STALLINGER and Johann and Elizabeth KUSO against Austria and registered on 27 February 1989 under files No. 14696/89 and 14697/89 respectively;

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 facts as submitted by the applicants may be summarised as follows:

Application No. 14696/89, Alois and Amalia STALLINGER

        The applicants, Austrian citizens, own a farm in Harrau , Upper Austria.  They are represented by Mr. Erich Proksch , a lawyer practising in Vienna.

        The applicants' land was involved in agricultural land consolidation proceedings ( Zusammenlegungsverfahren ) under the Upper Austrian Land Planning Act ( Flurverfassungsgesetz ).

        In December 1980 the Agricultural District Authority ( Agrar - bezirksbehörde ) issued the consolidation plan.

        On 14 January 1982, on the applicants' appeal, the Provincial Land Reform Board ( Landesagrarsenat ) set the consolidation plan aside and referred the case back to the District Authority.

        In September 1983 the District Authority issued a new consolidation plan.

        On 25 October 1984 the Provincial Land Reform Board set the consolidation plan aside again.

        On 28 February 1986 the District Authority issued a third consolidation plan.

        On 16 October 1986 the Provincial Land Reform Board dismissed the applicants' appeal.

        On 24 September 1987 the Constitutional Court ( Verfassungs - gerichtshof ) refused to deal with the applicants' complaint and referred it to the Administrative Court ( Verwaltungsgerichtshof ).

        On 3 May 1988 the Administrative Court dismissed the complaint. The decision was served on the applicants on 1 June 1988.

Application No. 14697/89, Johann and Elizabeth KUSO

        The applicants, Austrian citizens, own a farm in Au/ Leithagebirge , Lower Austria.  They are represented by Dr. Erich Proksch , a lawyer practising in Vienna.

        The applicants' land was involved in agricultural land consolidation proceedings ( Zusammenlegungsverfahren ) under the Lower Austrian Land Planning Act ( Flurverfassungsgesetz ).

        In May 1974 the Agricultural District Authority ( Agrar - bezirksbehörde ) issued the consolidation plan.

On 24 March 1975, on the applicants' appeal, the Provincial Land Reform Board ( Landesagrarsenat ) set the consolidation plan aside and referred the case back to the District Authority.

On 9 September 1975 the District Authority issued a new consolidation plan.

On 15 April 1976 the Provincial Land Reform Board dismissed the applicants' appeal. This decision was quashed by the Administrative Court ( Verwaltungsgerichtshof ).

On 31 January 1979 the Provincial Land Reform Board set the consolidation plan aside.

  On 5 September 1980, on the applicants' appeal, the Supreme Land Reform Board ( Oberster Agrarsenat ) quashed the decision of the Provincial Land Reform Board and referred the case back to the District Authority.

On 30 January 1984 the District Authority issued a new plan which was confirmed by the Provincial Land Reform Board on 18 December 1984.

  On 26 November 1985 the Administrative Court set the consolidation plan aside.

On 17 February 1987 the Provincial Land Reform Board issued a new consolidation plan.

On 24 September 1987 the Constitutional Court ( Verfassungsgerichtshof ) refused to deal with the applicants' complaint and referred it to the Administrative Court.

On 19 April 1988 the Administrative Court dismissed the complaint.  The decision was served on the applicants on 18 May 1988.

COMPLAINTS

        The applicants complain of the organisation of the agricultural authorities which dealt with their case, claiming that it fell short of the requirements of Article 6 of the Convention.

        In particular they allege that due to the participation of a majority of 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 of the Convention. According to the applicants this deficiency is not remedied by the subsequent review by the Constitutional and Administrative Courts because it is not sufficiently wide in scope.

        The applicants also complain that the Land Reform Boards were not "established by law" because the participation of substitute members in their case was not lawful.

        The applicants further complain that they did not have a public hearing.

        The applicants finally complain of a violation of Article 1 para. 1 of Protocol No. 1 to the Convention in that the new land assigned to them yielded less than their former land.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 16 November 1988 and registered on 27 February 1989.

On 17 October 1991 the Commission decided to join the applications and to request the parties to submit written observations on the admissibility and merits of the applications and to deal in particular with the following questions:

1. Given that the Austrian reservation concerning Article 6 of the Convention expressly refers to "principles governing public court hearings laid down in Article 90 of the 1929 version of the Federal Constitutional Law", does the reservation cover the absence of a public hearing before the Provincial and Supreme Land Reform Boards being considered as administrative organs having the character of tribunals in the present case?

2. If the Austrian reservation concerning Article 6 of the Convention does not apply, did the applicants have a public hearing before a tribunal?

The respondent Government submitted their observations on 13 March 1992 and the applicants replied on 13 May 1992.

THE LAW

The applicants allege a violation of Article 6 para. 1 of the Convention in that the land reform proceedings in which they were involved did not conform in various respects with the requirements of this provision, in particular in that they did not have a public hearing.

The absence of a public hearing is covered by the Austrian reservation to Article 6 of the Convention which provides as follows:

"The provisions of Article 6 of the Convention shall be so applied that there shall be no prejudice to the principles governing public court hearings laid down in Article 90 of the 1929 version of the Federal Constitutional Law."

Referring to the jurisprudence of the European Court of Human Rights ( Ringeisen judgment of 16 July 1971, Series A No. 13, pp. 40-41, para. 98, and Ettl judgment of 23 April 1987, Series A No. 117, p. 19, para. 42), the Government submit that this reservation is valid and applies so as to prevent the Commission from considering this question.

The applicants argue to the contrary.

The Commission finds that this part of the applications raises complex issues of law under the Convention, including questions concerning the interpretation of the Austrian reservation to Article 6 of the Convention, the examination of which must be reserved to an examination of the merits (cf. the still pending application No. 16922/90, Dec. 8.9.92).  This part of the applications therefore has to be declared admissible, no other ground for rejecting it having been established.

2. The applicants also complain of a violation of Article 1 para. 1 of Protocol No. 1 to the Convention in that the new land assigned to them yielded less than their former land.  However, the authorities ordered the re-allocation of the land in question in the public interest and, on the basis of expert opinions, found that the compensation parcels finally assigned to the applicants were appropriate.  The applicants have not substantiated that the authorities' decisions were unreasonable or arbitrary.

The Commission is of the opinion that, in their final decisions, the authorities struck a fair balance between the community's general interests and the requirement of protecting the applicants' individual property rights.

This part of the applications, therefore, has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE the complaints under Article 6 of the Convention, without prejudging the merits of the case;

DECLARES INADMISSIBLE the remainder of the complaints.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard )