THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33915/96 by Franz WALDER against Austria

The European Court of Human Rights ( Third Section ), sitting on 27 April 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr P. Kūris, Mrs F. Tulkens, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 May 1996 and registered on 20 November 1996,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1935 and living in Innervillgraten , Austria. He is represented before the Court by Mr Robert Kerschbaumer , a lawyer practising in Lienz (Austria).

The facts of the case, as submitted by the parties, may be summarised as follows.

On 15 April 1971  the Tirol Regional Government acting as Agricultural Authority of First Instance ( Landesregierung als Agrarbehörde 1.Instanz , “the Agricultural Authority”) received a motion of 19 January 1971 for opening land consolidation proceedings at Kalkstein in the municipality of Innervillgraten , signed by the land owners concerned including the applicant.

According to the applicant, the head of the Office for Agriculture ( Amt für Landwirtschaft ) gave him assurances as to the compensatory plots to be expected before he signed the motion of 19 January 1971. The Government point out that the applicant signed the motion without adding any conditions (for details see below, decision of the Provincial Land Reform Board [ Landesagrarsenat , “the Provincial Board”] of 5 February 1981).

On 3 May 1971 the Agricultural Authority ex officio opened the Kalkstein land consolidation proceedings ( Zusammenlegungsverfahren ), involving property in Innervillgraten of which the applicant and his siblings are co-owners.

On 28 May 1974 the Agricultural Authority held a hearing at which the land owners concerned, including the applicant, were heard as regards the provisional transfer ( vorläufige Übergabe ) of land. The majority of land owners accepted the authority’s proposal, whereas the applicant opposed it. He did not indicate any particular reasons for his refusal. According to the minutes, the decision ordering the provisional transfer was delivered orally at the close of the hearing and the participants were informed that no remedy was available against it in accordance with S. 23 § 5 of the Tirol Agricultural Land Planning Act 1969 ( Flurverfassungs - Landesgesetz 1969 ). The parties were not informed about the possibility to request a written copy of the decision and to lodge a complaint with the Administrative Court ( Verwaltungsgerichtshof ).

On 7 May 1979 the District Authority issued the consolidation scheme ( Zusammenlegungsplan ).

On 5 February 1981 the Provincial Board upon, inter alia , the applicant’s appeal, set aside the consolidation scheme. Further, it declared that the area had to be cultivated as provided for in the provisional transfer of land of 28 May 1974 until a new consolidation scheme was issued.

The Provincial Board found that the Agricultural Authority had failed to carry out a valuation of the plots of land involved in the consolidation proceedings. Such a valuation was necessary unless all parties concerned declared that all plots of land were of equal value. The applicant’s request of 19 January 1971 for the opening of consolidation proceedings, in which he had waived his right to a separate valuation, did not contain such a declaration. This request was based on a draft plan by the Local Chamber for Agriculture which the applicant and his co-owners had only accepted on condition that changes be made in two specific areas. He had indicated these changes in the draft plan. The Provincial Board noted that it had questioned the head of the Office for Agriculture, before whom the applicant had signed the above request. The latter had confirmed that he and the applicant had agreed that changes as requested by the applicant should be made and the applicant had signed the request of 19 January 1971 upon the assurance that his wishes would be taken into account. The question whether all plots of land included in the consolidation proceedings were of equal value had not been discussed in the preceding talks. In this respect the head of the Office of Agriculture had stated that he had considered that the applicant could only draw advantage from the consolidation proceedings and that it would finally be possible to convince him of the draft plan. In conclusion, the Provincial Board found that the applicant’s request of 19 January 1971 could not be regarded as a declaration that all plots of land were of equal value, as the allocation of land adopted in the consolidation scheme had not taken account of the changes requested by him. Thus, the Agricultural Authority had failed to carry out a valuation. The Provincial Board added that, without such a valuation, it was not possible to review whether the compensation in land received by the applicant was of equal value to the land he had brought into the proceedings.

On 14 September 1982 the Administrative Court, upon the complaint of the applicant and his co-owners, quashed the Provincial Board’s declaration that the consolidation area had to be cultivated as provided for in the provisional transfer of land of 28 May 1974 until a new consolidation scheme was issued. It found that the Provincial Board had not been competent to make such a declaration. It was only called upon to decide on the merits of the case which had been before the Agricultural Authority, i.e. in the present case it had to decide on the lawfulness of the consolidation scheme. The Administrative Court added that, in any case, the decision on the provisional transfer of land had become legally effective long ago.

After having held a hearing on 28 April 1983, the Agricultural Authority issued an occupation and valuation schedule ( Besitzstandsausweis und Bewertungsplan ).

On 1 December 1983 the Provincial Board dismissed the applicant’s appeal. It noted that the applicant had not contested the occupation schedule. As regards the valuation, the Board found that it had been carried out in accordance with the law for each single plot of land on the basis of criteria which had been elaborated with due regard to the particular conditions pertaining to the consolidation area. All relevant documents had been made available to the parties, who had been heard on 28 April 1983. It was therefore not credible that the applicant had not been sufficiently informed about the valuation process. Moreover, the applicant had not submitted any arguments as regards the valuation of specific plots of land. There were no reasons to depart from the Agricultural Authority’s findings.

On 8 October 1984 the Constitutional Court ( Verfassungsgerichtshof ) declined to deal with the applicant’s complaint and referred the case to the Administrative Court.

On 28 May 1985 the Administrative Court dismissed the applicant’s complaint. It noted the applicant’s submissions that the opening of the consolidation proceedings had been unlawful and that all decisions taken, in particular the provisional transfer of land, had become void following the Administrative Court’s decision of 14 September 1982. The Administrative Court emphasised that such an effect could by no means be attributed to the said decision, in which it had, to avoid any misunderstanding, stated that the provisional transfer had become legally effective. Thus, the court reiterated that the decisions opening the consolidation proceedings as well as the provisional transfer of land were legally effective. It followed that the Agricultural Authority had to continue the proceedings by issuing the occupation and valuation schedule. The applicant’s allegations that the proceedings had been instituted upon an agreement which had later been disregarded by the authority could no longer be examined upon an appeal against the occupation and valuation schedule. As regards this schedule, the applicant had not submitted any specific objections.

On 28 January 1990 the Agricultural Authority received further documents relating to a number of changes in the valuation of land.

On 17 May 1991 the Agricultural Authority issued a new consolidation scheme. As regards the applicant, the Agricultural Authority, having regard to the valuation of the land, found that the difference in value between the plots the applicant had owned prior to the proceedings and the plots allocated to him was less than the 5% which were admissible under the Agricultural Land Planning Act. For this difference it ordered payment of compensation. The consolidation scheme was open to public inspection at the Innervillgraten local authority during two weeks in July 1991.

The applicant did not appeal against the consolidation scheme which, following its publication, became final on 1 July 1991.  However he appealed against the notification of 17 May 1991 by which the Agricultural Authority had informed the parties of the envisaged publication of the consolidation scheme.

On 29 October 1992 the Provincial Board rejected the applicant’s appeal as being inadmissible. It noted that the said appeal was directed against the notification of 17 May 1991, which was in itself not subject to appeal. In case the applicant’s appeal was meant  to be directed against the consolidation scheme, it was premature as the scheme had not been public on 31 May 1991, the date when the applicant lodged his appeal.

On 14 June 1993 the Constitutional Court declined to deal with the applicant’s complaint and referred the case to the Administrative Court.

On 24 October 1995 the Administrative Court dismissed the applicant’s complaint. It confirmed the Provincial Board’s finding that the notification of 17 May 1991 was not a decision subject to appeal. As the applicant’s appeal had clearly been directed against the said notification there was no room for the Board’s alternative reasoning.

By decision of 12 April 1996 the Agricultural Authority closed the consolidation proceedings following the entry of all changes of property in the land register in 1993 and the final settlement of the costs in early 1996.

On 21 June 1996 the Provincial Board dismissed the applicant’s appeal against the decision of 12 April 1996.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about the length of the land consolidation proceedings. He submits, in particular, that the various sets of proceedings before the Administrative Court caused undue delays.

2. The applicant also complains under Article 6 that the consolidation proceedings were unfair. He submits that the competent authority misled him as regards the compensatory plots to be expected, in order to obtain his agreement to the opening of the proceedings.

3. Further, he complains under Article 6 that the decision concerning the provisional transfer of land was only delivered orally and that no appeal lay against it despite its far reaching consequences, namely that the provisional distribution of land remained in force until the consolidation scheme became final.

4. Finally, the applicant complains under Article 1 of Protocol No. 1 about a violation of his right to property. He claims in particular that he received inadequate compensation in land. He argues that the Agricultural Authority following the Administrative Court’s 1982 decision should have been obliged to reallocate to him the property he owned prior to the land consolidation proceedings.

THE LAW

1. The applicant complains under Article 6 of the Convention about the length of the land consolidation proceedings.

Article 6 § 1, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ...”

a. The Government submit that the applicant failed to comply with the requirements of Article 35 § 1 of the Convention. As to the provisional transfer of land, the Government submit that the applicant has not lodged a complaint with the Administrative Court and has therefore not exhausted domestic remedies. As to the consolidation scheme, they submit that the applicant’s appeal against the notification of the publication cannot be regarded as an effective remedy. As he did not appeal against the 1991 consolidation scheme as such, which thus became final on 1 July 1991, he has again failed to exhaust domestic remedies. Finally, the Government argue that the six month period started running from the last-mentioned date, as the measures following the adoption of the consolidation scheme were of a merely formal nature and, thus, should not be considered as part of the land consolidation proceedings. Thus, the applicant who introduced his complaint on 23 May 1996 also failed to comply with the six months rule.

The applicant contests the Government’s view. He submits that the consolidation proceedings are to be considered as a whole, with the consequence that it is not necessary to pursue remedies against every single decision which is given in the proceedings. As to the provisional transfer of land, he maintains that the complaint to the Administrative Court is not an ordinary remedy and that he was, moreover, not made aware of this possibility. As to the consolidation scheme, he claims - without giving any details - that the remedies he used were appropriate.

The Court notes that Government have not claimed that the applicant failed to make use of any remedy which could have prevented or redressed the alleged violation as regards the length of the proceedings. Thus, this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.

Moreover, the Court finds that the land consolidation proceedings have to be considered as a whole. In this respect, the Court notes that the various procedural steps following the adoption of the consolidation scheme cannot be considered as mere formalities executing the scheme. They involved inter alia a final settlement of the costs, a matter which is so closely linked with the substantive proceedings that it forms part of the “determination of civil rights and obligations (see mutatis mutandis Robins v. the United Kingdom judgment of 23 September 1997, p. 1809, § 29). Thus, the final decision was given on 21 June 1996 when the Provincial Board dismissed the applicant’s appeal against the decision which formally closed the land consolidation proceedings. The applicant introduced his complaint on 23 May 1996 and has therefore complied with the six months rule.

b. As to the duration of the proceedings, the Government contend that they lasted from 15 April 1971, when the request to conduct land consolidation was received, until 1 July 1991, when the consolidation scheme became final, that is twenty years and two and a half months. They submit that the proceedings were complex, as land consolidation proceedings generally are. Nevertheless the authorities tried to conduct the proceedings expeditiously. The applicant, who filed a large number of often unsuccessful remedies also contributed to the length of the proceedings.

The applicant contests the Government’s view and maintains that the overall duration of the proceedings was unreasonable.

The Court considers, in the light to the criteria established by the case-law on the question of “reasonable time” and having regard to all the information in its possession, that an examination of the merits of the complaint is required.

2. The applicant also complains under Article 6 § 1 of the Convention that the consolidation proceedings were unfair. He submits that the competent authority misled him as regards the compensatory plots to be expected, in order to obtain his agreement to the opening of the proceedings.

The Government contest the applicant’s allegation that he was lured into giving his consent to the opening of the land consolidation proceedings at issue. They point out that he signed the motion for opening the proceedings without attaching any conditions, and that he did not mention any assurances given to him when he opposed the provisional transfer of land in 1974. In any case, the Government argue that land consolidation proceedings are to be conducted ex officio . Thus, the consent of the land owners concerned is not required.

The applicant maintains that, even if his consent was not required, the proceedings were unfair, as the head of the Office for Agriculture gave assurances to him as to the compensatory plots he would receive. As he expected that they would be complied with, he could not duly prepare himself for the hearing on the provisional transfer of land.

Assuming compliance with the requirements of Article 35 § 1 of the Convention, the Court notes that there is some disagreement between the parties as to circumstances in which the applicant signed the request for opening the land consolidation proceedings. On the basis of the file, and in particular the decision of the Provincial Board of 5 February 1981, the following facts can be established: On 19 January 1971, the applicant - as well as other land owners - made a request for opening land consolidation proceedings, in which he also waived his right for separate valuation of the land on condition that certain changes be made to the draft plan prepared by the local Chamber of Agriculture. He signed this request upon assurances by the head of the Office for Agriculture that his wishes would be taken into account in the proceedings.

The Court considers that an issue under Article 6 of the Convention may arise where an authority obtains a party’s request to open proceedings by improper methods and relies upon it in the subsequent proceedings. However, in the present case, the land consolidation proceedings were opened ex officio and, thus, the inclusion of the applicant’s property in these proceedings did not depend on his consent. Moreover, the Provincial Board, when dealing with the question whether the applicant waived his right to a separate land valuation, carefully examined the circumstances in which he made the request of 19 January 1971. It concluded that he had not validly waived the said right and that the Agricultural Authority was thus obliged to draw up a valuation schedule. In these circumstances, there is no appearance of  a violation of Article 6.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complains under Article 6 § 1 of the Convention that the decision concerning the provisional transfer of land was only delivered orally and that no appeal lay against it despite its far reaching consequences, namely that the provisional distribution of land remained in force until the consolidation scheme became final.

The Court notes that, contrary to the applicant’s assertions, a remedy was available against the provisional transfer of land, namely a complaint to the Administrative Court. As the decision on the provisional transfer of land was only delivered orally and the land owners were not informed of the possibility of complaining to the Administrative Court, the complaint rather raises the question whether the applicant had effective access to that court. However, the Court is not called upon to examine this issue, as the provisional transfer of land became final on 28 May 1974, but the applicant failed to introduce this complaint before the Convention organs within six months, as required by Article 35 § 1 of the Convention.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

4. Finally, the applicant complains of a violation of his right to property guaranteed by Article 1 of Protocol No. 1 which insofar as relevant provides 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 … .

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 … .”

The applicant claims in particular that he received inadequate compensation in land. He argues that the Agricultural Authority, following the Administrative Court’s 1982 decision, should have been obliged to reallocate to him the property he owned prior to the land consolidation proceedings. He maintains that the provisional transfer of land was to his detriment and submits an expert opinion of 8 November 1996 according to which he suffered a yearly loss of yield of about 60,000 Austrian schillings . Further, he claims that the 1991 consolidation scheme failed to take present-day conditions into account.

The Government submit that the applicant has not suffered any disadvantages from the reallocation of land either by the provisional transfer of land or by the final consolidation scheme. They also point out that he failed to substantiate why the consolidation scheme was prejudicial to him. His assertion that the Agricultural Authority would have been obliged to reallocate his former property to him following the Administrative Court’s decision of 1982 was simply wrong, as the Administrative Court had confirmed that the provisional transfer of land was legally effective.

Assuming compliance with the requirements of Article 35 § 1 of the Convention, the Court notes that the applicant has throughout the domestic proceedings, and despite his repeated requests to have his former property reallocated to him, never substantiated the prejudice he actually suffered with regard to the compensation in land allocated to him first by the provisional transfer of land and subsequently by the consolidation scheme. In particular, he never claimed to have suffered any loss of yield. The Court further notes that the Agricultural Authority in its decision of 17 May 1991 concerning the second consolidation scheme, after having carried out the valuation of the land involved in accordance with the procedure provided for by law, found that the property allocated to the applicant was of approximately equal value to his former property. He was given financial compensation for the difference.

In these circumstances, the Court finds that there has not been an arbitrary interference with the applicant’s property rights, the land consolidation proceedings having been executed in the general interest. Moreover, given the compensation the applicant received both in land and money, it cannot be said that he had to bear an undue burden. Accordingly, the Court  concludes that the present case does not disclose any appearance of a violation of Article 1 of Protocol No. 1.

It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaint [Note1] that the land consolidation proceedings involving his property lasted unreasonably long;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza Registrar President 

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.