Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13811/88

by E. et al.

against Austria

The European Commission of Human Rights sitting in private

on 12 July 1989, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, 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 14 January 1988

by E. et al., against Austria and registered on 29 April 1988 under

file No. 13811/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens residing at Obritzberg,

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 p. 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. 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 to them. 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. S. and H. and construction of an access

way in the case of the predecessors of the applicants Haftner - 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 2 December 1981 the Supreme Board rejected the appeal of

the applicants Haas as inadmissible. These applicants have not

complained to the Constitutional and Administrative Courts of this

decision, which accordingly became final.

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

applicants E. S. and H., 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 grounds 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. These appeals were

still pending on 16 June 1989.

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 the Court

(Eur. Court H.R., judgment of 23 April 1987, Series A No. 117, p. 84

et seq.).

THE LAW

The applicants complain of the length of agricultural land

consolidation proceedings to which their properties were subjected.

They invoke Article 6 para. 1 (Art. 6-1) of the Convention which,

insofar as relevant, 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 concerning all applicants started in July 1973.

Those concerning the applicants E. S. and H. are still pending and

thus have lasted about 16 years. The Commission finds that further

clarification concerning the length of the proceedings is necessary

and that the respondent Government, and subsequently the applicants

concerned, should be invited to submit observations in writing on the

admissibility and merits of this part of the application.

As regards the applicants A. and M. H., the Commission notes

that the proceedings in their case were terminated by the decision of

the Supreme Land Reform Board of 2 December 1981 against which they

did not appeal to the Constitutional Court or the Administrative

Court. Even assuming that such appeals could not have provided

redress concerning the length of proceedings, and that for this reason

the applicants were not, under Article 26 (Art. 26) of the Convention,

required to lodge such appeals for the purpose of exhausting the

domestic remedies in this respect, the Commission notes that they did

not introduce the present application until 14 January 1988, i.e.

more than six months after the termination of the domestic

proceedings. They thus have not complied with the time-limit

stipulated by Article 26 (Art. 26) of the Convention. The complaint

of these applicants must therefore be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission

1. DECLARES THE APPLICATION INADMISSIBLE insofar

as it was introduced by A. and M. H.;

2. DECIDES TO ADJOURN THE PROCEEDINGS as regards

the remaining applicants.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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E. et al. v. AUSTRIA

E. et al. v. AUSTRIA

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