AS TO THE ADMISSIBILITY OF

                      Application No. 12650/87

                      by Alois and Hertha WIENINGER

                      against Austria

        The European Commission of Human Rights (Second Chamber)

sitting in private on 31 May 1991, the following members being

present:

              MM. S. TRECHSEL, President of the Second Chamber

                  F. ERMACORA

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H.G. SCHERMERS

             Mrs.  G. H. THUNE

             Mr.  F. MARTINEZ

             Mrs.  J. LIDDY

             MM.  J.-C. GEUS

                  M.P. PELLONPÄÄ

             Mr.  K. ROGGE, Secretary to the Second 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 12 December 1986

by Alois and Hertha Wieninger against Austria and registered on

22 January 1987 under file No. 12650/87;

        Having regard to:

        - the Commission's decision of 11 July 1989 to bring the

        application to the notice of the respondent Government

        and to invite them to submit written observations on its

        admissibility and merits;

        - the observations submitted by the respondent Government on

        20 November 1989 and the observations in reply submitted by

        the applicant on 3 January 1990 and supplemented on

        11 February 1991;

        - the Commission's decision of 8 December 1990 to refer the

        case to the Second Chamber;

        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 agreed by the parties may be summarised as follows:

        The applicants, Austrian citizens who own a farm at Weitersfeld,

Lower Austria, are represented by Rechtsanwalt Dr.  Erich Proksch of Vienna.

They complain of the impossibility of obtaining compensation in respect

of temporary disadvantages which they allegedly suffered in connection

with agricultural land consolidation proceedings (Zusammenlegungsver-

fahren) under the Lower Austrian Agricultural Land Planning Act (Flur-

verfassungsgesetz).

        The proceedings in question were instituted ex officio in January

1969.  In October 1971 the Agricultural District Authority (Agrarbezirks-

behörde) ordered the provisional transfer (vorläufige Übergabe) of the

compensation parcels.  At the relevant time there was no possibility

of appealing against the provisional transfer.  The applicants, who

immediately claimed that their compensation parcels were insufficient,

thus could only assert their claims in the main proceedings.

        The consolidation plan (Zusammenlegungsplan) was issued in

April 1972 in conformity with the situation created by the provisional

transfer.  The applicants' appeals against this plan were eventually

successful.  On 6 September 1978 the Supreme Land Reform Board

(Oberster Agrarsenat) quashed this plan insofar as it concerned the

applicants' compensation parcels finding that they were insufficient.

The Agricultural District Authority adopted a new plan on 22 May 1980

which was amended by decisions of the Provincial Land Reform Board

(Landesagrarsenat) of 24 November and 23 December 1981.  The

applicants thereby received, with effect from autumn 1982,

compensation parcels which they considered as satisfactory.

        In December 1979 the applicants applied for financial compensation

in respect of the damages allegedly caused to them by the fact that

they had received insufficient compensation parcels by the provisional

transfer which at that time was still in force.  They submitted an

expert opinion according to which they suffered an annual loss of

crops in the amount of approximately 50,000 AS.  In its above decision

of 22 May 1980 the Agricultural District Authority reserved this issue

for a separate decision.  On 24 March 1982 the applicants requested an

adjournment of the proceedings in this respect.  On 10 June 1985 they

applied for the resumption of the proceedings, indicating that they

now claimed compensation in the total amount of 597,927 AS.

        On 12 June 1985 the Agricultural District Authority rejected

the applicants' claim as being inadmissible.  It observed that the

Agricultural Land Planning Act did not provide for any compensation in

respect of damage caused by the fact that there was a long period

between the provisional transfer and the assignment of lawful

compensation parcels by the final consolidation plan.  A compensation

claim could only arise if the authority had been at fault (schuldhaft)

and assigned unlawful compensation parcels at the provisional

transfer.  However, such a claim did not fall within the jurisdiction

of the agricultural authorities but had to be asserted in proceedings

under the Official Liability Act (Amtshaftungsgesetz).

        This decision was confirmed on appeal by a decision of the

Provincial Land Reform Board of 10 December 1985.  It referred to a decision

of the Supreme Land Reform Board of 6 March 1985, according to which there

was no legal basis for a claim such as the one of the applicants.

        The applicants challenged this decision before the

Constitutional Court (Verfassungsgerichtshof) invoking their

constitutional rights to the inviolability of property and to a

decision by the lawful judge.  However, on 7 June 1986 the

Constitutional Court, in summary proceedings under Article 144 para. 2

of the Federal Constitution, refused to deal with these complaints,

holding that in the light of its constant case-law they did not show

any prospects of success.

        The applicants also complained to the Administrative Court

(Verwaltungsgerichtshof) alleging the unlawfulness of the Provincial

Board's above decision and suggesting that the lack of legal

provisions on compensation should be brought before the Constitutional

Court in proceedings for the review of the constitutionality of

legislation.  The Administrative Court rejected the complaint on

30 September 1986.  It considered that the applicants' claim did not

come under the provisions of the Provincial Land Planning Act

concerning financial compensation for certain temporary damages and

that the agricultural authorities were not competent to deal with

other compensation claims, including claims based on Section 365 of

the Civil Code which the applicants had invoked in this respect.  The

Administrative Court had no doubts concerning the constitutionality of

the applicable legal provisions and therefore saw no necessity to

refer this question to the Constitutional Court.

        The applicants also tried to assert their claim in official

liability proceedings.  Their claim was, however, rejected by the

Provincial Governor on 29 August 1985.  The applicants thereupon

lodged an action with the Regional Civil Court (Landesgericht für

Zivilrechtssachen) of Vienna on 1 October 1985.  In his reply of

29 October 1985 the Provincial Governor submitted that the official

liability proceedings were subsidiary to the above administrative

proceedings which, at that time, were still pending.  The liability

proceedings were then stayed by a mutual agreement of the parties.

They were resumed after the Administrative Court had handed down

its above decision of 30 September 1986.  A hearing took place on

4 December 1986.  The Court decided to obtain expert evidence and

ordered the parties to advance the costs for the expertise.  They did

not comply and therefore the proceedings remained suspended.

COMPLAINTS

1.     The applicants complain that Article 1 of Protocol No. 1 to

the Convention has been violated in that they are unable to obtain

compensation for the damage caused to them by the assignment of

insufficient compensation parcels at the provisional transfer in 1971.

They had immediatly complained of the situation created by this

measure which, however, remained in force until the conclusion of the

consolidation proceedings in 1982, causing them important losses of

crops during eleven years.  They deny any responsibility for the delay

of the relevant proceedings and invoke the cases of Erkner-Hofauer

and Poiss where the Convention organs found a breach of Article 1 of

Protocol No. 1 in a similar situation (cf.  Eur.  Court H.R., judgments

of 23 April 1987, Series A no. 117).

2.      The applicants further complain that Article 6 of the

Convention has been violated in that the proceedings before the

agricultural authorities and the Courts of public law were not

conducted in conformity with the requirements of this provision;  in

their view the organisation and composition of the agricultural

authorities, in particular the Land Reform Boards, did not meet the

requirements of a tribunal within the meaning of Article 6.

PROCEEDINGS

        The application was introduced on 12 December 1986 and

registered on 22 January 1987.

        On 11 July 1989 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

observations in writing on the admissibility and merits of the

application before 10 November 1989.  At the Government's request,

this time-limit was extended to 27 November 1989.

        The Government submitted their observations on 20 November 1989

and the applicants replied thereto on 3 January 1990.  Subsequently,

they announced the submission of further observations having regard to

plans existing at the time to introduce amending legislation as

proposed at an inquiry organised by the Federal Ministry of Forestry

and Agriculture in 1989.  On 11 February 1991 the applicants informed

the Commission that the plans to introduce such legislation had

apparently been abandoned.

        In the meantime, the Commission, after consulting the parties,

decided on 8 December 1990 to refer the case to the Second Chamber.

THE LAW

1.     The applicants complain that by a provisional transfer of lands

ordered in connection with agricultural land consolidation proceedings

in 1971 they received insufficient compensation parcels and that this

situation was maintained for 11 years until 1982 when as a result of

the final decision in the consolidation proceedings they got lawful

compensation parcels.  They claim that the situation created by the

provisional transfer, which could neither be altered nor redressed by

the adjudication of financial compensation, amounted to an unjustified

interference with their property rights as guaranteed by Article 1 of

Protocol No. 1 (P1-1) to the Convention.

        This provision reads as follows:

"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."

        In the Erkner/Hofauer and Poiss judgments of 23 April 1987

(Series A no. 117), the European Court of Human Rights held that a

provisional transfer of lands is a measure interfering with the right

of property which falls to be considered under the first sentence of

the first paragraph of Article 1 (Art. 1).  It will be compatible with this

provision only if a proper balance is struck between the demands of

the community's general interest and the requirement of protecting the

property rights of the individual.  The Court observed that the

Austrian system of provisional transfers of land suffered from a

degree of inflexibility in that, before the entry into force of a

consolidation plan, it provided no means of altering the position of

landowners or of compensating them for damage they may have sustained

in the time up to the final award of the statutory compensation in

land.  In the cases then before the Court, where the restrictions had

lasted about sixteen and twenty-four years respectively, it was found

that there had been no proper balance between the conflicting

interests involved and that the applicants in those cases had been

made to bear a disproportionate burden incompatible with Article 1

of the Protocol (P1-1) (cf.  Erkner and Hofauer judgment, loc. cit.,

p.64 et seq., paras. 71-80;  Poiss judgment, loc. cit., p. 107 et

seq., paras. 61-70).

        In the present case, the restriction of the applicants'

property right caused by the provisional transfer of lands was

maintained for about 11 years.  During this period the applicants were

allotted insufficient compensation parcels.  The situation created by

the provisional transfer could not be altered pending the entry into

force of the final consolidation plan, and the applicants could not

get any compensation in administrative proceedings under the land

reform legislation.

        This was confirmed by decisions of the Constitutional Court and

the Administrative Court.  The applicants claim that by appealing to

these courts they have exhausted the domestic remedies in conformity

with the requirements of Article 26 (Art. 26) of the Convention.

        The Government submit that the applicants could have obtained

compensation if they had pursued the official liability proceedings

instituted by them.  The applicants consider that they were not

required under Article 26 (Art. 26) to take official liability

proceedings since such proceedings can give rise to compensation only

if it is established that the competent authorities have caused damage

by unlawful and faulty behaviour.  They claim that under the

Convention they are entitled to compensation even if there is no

unlawful and faulty behaviour on the part of the authorities.

        Unlike in the Erkner/Hofauer and Poiss cases (cf.  No. 9816/82,

Poiss v.  Austria, Dec. 9.3.84, D.R. 36 p. 170) an official liability

action was available to the applicants in the present case at the time

of the introduction of their application, the consolidation

proceedings having been finally concluded.  The applicants introduced

this remedy but did not pursue it.  The Commission is required to

determine whether the action would have constituted an effective

remedy by which the applicants could have obtained redress for the

specific violation of the Convention alleged by them.

        The applicants claim that Article 1 of Protocol No. 1 (P1-1) was

violated in that a disproportionate burden was placed upon them by the

provisional transfer of lands in respect of which they were not

entitled to compensation except if they could show that the competent

authorities had caused them damage by faulty and unlawful behaviour.

The limited scope of the right to compensation is therefore part of

the applicants' complaint under Article 1 of the Protocol (P1-1).

Insofar as the applicants might have suffered damages not attributable

to faulty and unlawful behaviour on the part of the authorities, the

official liability action therefore could not constitute an effective

remedy for the applicants.  The Government do not claim that in each

and every case in which a provisional transfer leads to a

disproportionate burden on the individual landowner concerned the

courts seized with an official liability action would assume unlawful

and faulty behaviour on the part of the authorities.  Nor has it been

claimed that special circumstances in the applicants' case justified

the assumption of such behaviour.  On the contrary, the Government

seem to hold the view that the applicants' complaint is in substance

unjustified because they only complain of the normal and inevitable

consequences of a provisional transfer of lands for which the

authorities are not to blame.  The Commission concludes that the

official liability action did not constitute an effective remedy which

the applicants were required to exhaust under Article 26 (Art. 26) of

the Convention.

        As regards the substance of the applicants' above complaint,

the Commission considers that it cannot at this stage be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  The Government argue that the system of

provisional land transfers is not as such contrary to Article 1 of

Protocol No. 1 (P1-1), that the disadvantages which it may entail for

individual landowners must be weighed against the beneficial effects

of an early and effective reform of the agricultural structure and the

long-term improvements for each enterprise, and that having regard to

these considerations, the restriction on the applicants' property

rights, which lasted a much shorter time than in the Erkner/Hofauer

and Poiss cases, was not disproportionate.  The Commission considers,

however, that the case raises complex and difficult issues concerning

the application of Article 1 of Protocol No. 1 (P1-1) which require to be

determined as to the merits.

2.      The applicants further complain of the organisation of the

agricultural authorities which dealt with their case, claiming that it

fell short of the requirements of Article 6 (Art. 6) of the

Convention.  In particular they allege that due to the participation

of a majority of civil servants, the disproportionate influence of the

specialised 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 (Art. 6-1)

of the Convention. According to the applicants this deficiency is not

remedied by the subsequent review of the Constitutional and

Administrative Courts because it is not sufficiently wide in scope.

        The Government contest the applicants' arguments.  They refer

to the Ettl and Others judgment of 23 April 1987 (Eur.  Court H.R.,

Series A no. 117), where the agricultural authorities were recognised

as tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

        The Commission notes that the applicants' above allegations

are essentially the same as those submitted by the applicants in the

Ettl case.  The present applicants give particular weight to the

status and functions of the expert civil servant members of the Land

Reform Boards;  but they have failed to indicate any element which

could be held to justify a distinction of the present case from the

Ettl case.  In view of the Court's finding in that case concerning the

general organisation and procedure of the Land Reform Boards, these

Boards must in the present case be considered to fulfil the

requirements of independent and impartial tribunals within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention.

        This part of the application must accordingly 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,

-       by a majority DECLARES ADMISSIBLE,

        without prejudging the merits of the case,

        the applicants' complaint of unjustified

        interference with their right to the

        peaceful enjoyment of their possessions;

-       unanimously DECLARES the remainder

        of the application INADMISSIBLE.

Secretary to the Second Chamber         President of the Second Chamber

        (K. ROGGE)                            (S. TRECHSEL)