Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13811/88

by A.E. and L.E.,

A.S. and R.S. and

J.H. and M.H.

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 14 January 1988

by A.E. and L.E., A.S. and R.S. and J.H. and M.H. against Austria and

registered on 29 April 1988 under file No. 13811/88;

Having regard to:

- the Commission's decision of 12 July 1989 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

6 December 1989 and the observations in reply submitted by

the applicants on 13 February 1990 and supplemented on

25 June 1990, 29 April and 10 May 1991;

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

application 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 applicants are Austrian citizens residing at O., Lower

Austria. They are represented by Rechtsanwalt Dr. Richard Wandl of

St. Pölten.

The applicants are partly the persons, partly legal

successors of the persons who brought Application No. 9273/81 which

the Commission declared admissible on 9 March 1984 (cf. D.R. 36 p.

5). That case concerned the organisation of the agricultural

authorities before which land consolidation proceedings under the

Lower Austrian Land Planning Act (Flurverfassungsgesetz) were conducted

in respect of the applicants' land. The Commission considered that

the organisation of these authorities infringed Article 6 para. 1 of

the Convention (cf. Comm. Report 3.7.85) whereas the European Court of

Human Rights finally found no violation of Article 6 para. 1 in this

respect (cf. judgment of 23 April 1987, Series A no. 117 pp. 3 et

seq.). The present case concerns the same proceedings. The

applicants now complain of their length.

The development of these proceedings can be summarised as

follows:

On 30 July 1973 the Lower Austrian Agricultural District

Authority (Agrarbezirksbehörde) published a consolidation plan for

Obritzberg which included the applicants' land. On 27 August 1973 the

applicants lodged an appeal with the Provincial Land Reform Board

(Landesagrarsenat), claiming that they had not received land

compensation as provided for in the Lower Austrian Agricultural Land

Planning Act. The grounds of appeal differed from one applicant to

the other according to the way in which the consolidation plan

affected each individual's property.

The Provincial Board gave its decisions on 26 and 27 May 1975,

after hearing the parties and several other landowners affected by the

changes the applicants were seeking. It made a number of variations

in the land compensation awarded to the applicants.

The applicants then appealed to the Supreme Land Reform Board

(Oberster Agrarsenat). On 6 October 1976, the Supreme Board allowed

the appeals of the applicants E. and S. to the extent that they were

complaining of a danger that some of the parcels of land allotted to

them in compensation for their original land might be eroded by water,

and it consequently ordered that a number of drainage measures should

be taken; for the rest, their appeals were dismissed, as were those of

the remaining applicants in their entirety.

The applicants then lodged complaints with the Constitutional

Court (Verfassungsgerichtshof). In particular they claimed that they

had been deprived of their right to a decision by the lawful judge

(gesetzlicher Richter - Article 83 (2) of the Federal Constitution) and

that there had been an infringement of their right of property.

In judgments of 1 and 28 February and 19 March 1980 the

Constitutional Court rejected the complaints as unfounded. At the

applicants' request, it referred the cases to the Administrative Court

(Verwaltungsgerichtshof) for the latter to determine whether any

non-constitutional rights had been infringed.

In the Administrative Court the applicants challenged the

lawfulness of the land compensation awarded. They claimed inter

alia that the requirements of the Lower Austrian Agricultural Land

Planning Act and of the Code of General Administrative Procedure

(Allgemeines Verwaltungsverfahrensgesetz) had not been complied with.

On 11 and 25 November 1980 the Administrative Court held that

there had been a breach of the applicants' procedural rights; it

dismissed the other complaints. The judgments, which were worded in

similar terms, stated inter alia that the Supreme Board had ordered a

number of measures to be taken - drainage of the land allocated to the

applicants E. and S. and construction of an access way in the

case of the predecessors of the applicants H. - without

specifying all the works that were necessary, without giving

sufficient reasons for its decision and without having established all

the material facts. In the case of the applicants E., the Board had

obtained an opinion (Stellungnahme) from its agronomist member on the

problem of the erosion of certain land but had not communicated it to

the applicants, who had accordingly not been able to comment on it.

The Administrative Court consequently quashed the impugned decisions

on these points on grounds of procedural irregularity and remitted the

cases to the Supreme Board.

On 3 March 1982 the Supreme Board allowed the appeals of the

applicants, finding in each case on the basis of new expert evidence

that there were consequences of general measures which could influence

the lawfulness of the applicants' land compensation. As the Supreme

Board was not competent to deal with these general measures as such,

it referred the three cases to the Agricultural District Authority.

This authority held hearings on 17 December 1982,

16 December 1983 and 20 January and 4 October 1984. On 27 March 1985

it adopted a plan of general measures involving modification of road

construction and canalisation in order to avoid water erosion on the

applicants' compensation parcels. The applicants appealed against

this decision, inter alia, on the ground that the measures adopted

were insufficient. On 1 July 1986 the Provincial Land Reform Board

partly allowed the appeals in this respect and referred the case back

to the Agricultural District Authority. By decisions of 19 July 1988

(applicants H.) and 11 October 1988 (two decisions concerning the

applicants S.) this authority ordered certain additional measures.

All applicants (including the applicants E.) appealed

again to the Provincial Board contending that the new measures

unfavourably affected their compensation parcels. The Provincial

Board decided the appeals on 19 December 1989.

The applicants S. and H. did not lodge any further remedies

against the decisions concerning their cases which therefore became

final. The applicants E. complained to the Constitutional Court. On

27 June 1990 it took a decision in summary proceedings by which it

refused to deal with the matter and referred the case to the

Administrative Court, as requested by the applicants. The latter

Court rejected the applicants' complaints on 12 March 1991.

COMPLAINTS

The applicants complain that in the above agricultural land

consolidation proceedings their civil rights have not been determined

within a "reasonable time" as required by Article 6 para. 1 of the

Convention. They invoke in particular the Poiss judgment of 23 April 1987,

(Eur. Court H.R., Series A No. 117, p. 84 et seq.).

PROCEEDINGS

The application was introduced on 14 January 1988 and

registered on 29 April 1988.

On 12 July 1989 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

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

this time-limit was subsequently extended to 8 December 1989.

The Government submitted their observations on 6 December

1989 and the applicants replied thereto on 13 February 1990. They

submitted supplementary information on 25 June 1990, 29 April and

10 May 1991.

In the meantime, on 8 December 1990, after consulting the

parties, the Commission had decided to refer the case to the Second

Chamber.

THE LAW

The applicants 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 Government do not contest the applicability of this

provision. They further admit that the applicants have complied with

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

exhaustion of the domestic remedies. The Commission is therefore

required to deal with the substance of the case.

As regards the beginning of the period to be considered, the

Government submit that it started on 27 August 1973, the date when the

applicants appealed against the first consolidation plan. Only from

this moment was there a "dispute" concerning the civil rights of the

applicants. The applicants do not contest this.

As regards the end of the relevant period, the applicants

submit that the agricultural land consolidation proceedings remained

pending: in the case of the applicants S. and H. until the

Provincial Land Reform Board's decision of 19 December 1989, and in

the case of the applicants E. until the Administrative Court's

decision of 12 March 1991. According to them there was no final

determination of their civil rights before these dates.

The Government submit that the applicants' civil claims have

been determined by the Administrative Court's decisions of November

1980, which indicated which compensation parcels would be allotted to

the applicants. They were also the basis of the Supreme Land Reform

Board's decision of 3 March 1982. The subsequent proceedings

concerned only general measures (drainage conditions in the E. and

S. cases, and development of one parcel in the H. case) and

should be considered separately for the purposes of Article 6 para. 1

(Art. 6-1) of the Convention. During both rounds of the proceedings

issues of such complexity were to be determined that the length of the

proceedings could be regarded as reasonable.

It is thus in dispute between the parties whether the length

of the entire proceedings from August 1973 (16 years 3 months and 23

days in the case of the applicants S. and H., 17 years 6 months and 14

days in the case of the applicants E.) is relevant for the purposes of

Article 6 para. 1 (Art. 6-1) of the Convention, or whether the running

of the relevant period was interrupted in November 1980 or March 1982.

Whatever answer is given to this question, the Commission

cannot find that the applicants' complaint concerning excessive length

of the proceedings is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) the Convention. It must be examined as

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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A.E. and L.E.; A.S. and R.S.; and J.H. and M.H. v. AUSTRIA

A.E. and L.E.; A.S. and R.S.; and J.H. and M.H. v. AUSTRIA

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