THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 27648/95

by Wilibald and Hermine PFLEGER [Note1]

against Austria [Note2]

The European Court of Human Rights ( Third Section) sitting on 24 November 1998 as a Chamber composed of

Mr N. Bratza, President,

Mr J.-P. Costa,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 March 1995 by Wilibald and Hermine PFLEGER against Austria and registered on 19 June 1995 under file No. 27648/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the Government’s waiver of observations on 8 September 1997, upon which the applicant did not comment;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, born in 1932 and 1933, respectively, are a couple residing in Schindlau. They are both Austrian nationals. In the proceedings before the Court they are represented by Mr. E. Proksch, a lawyer practising in Vienna.

A. The particular circumstances of the case

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

The applicants are farmers, whose property was involved in agricultural land consolidation proceedings (Zusammenlegungsverfahren) under the Upper Austrian Agricultural Land Planning Act (Flurverfassungsgesetz).

In 1988 the Linz District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") issued a consolidation plan for Schindlau which included the applicants' land. The applicants lodged an appeal with the Provincial Land Reform Board (Landesagrarsenat - "the Provincial Board"). Subsequently they requested that jurisdiction be transferred to the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme Board") on the ground that the Provincial Board had failed to decide within the statutory time-limit.

On 4 April 1990 the Supreme Board, granting the applicants' request, quashed the consolidation plan, inter alia, on the ground that the compensation in land awarded to the applicants carried a number of disadvantages which in their entirety made the compensation unlawful. The matter was remitted to the District Authority.

On 16 August 1991 the District Authority issued a new consolidation plan making, inter alia, a number of variations in the compensation in land awarded to the applicants. In particular one parcel of land close to the applicants' farm (Hofwiese) was returned to them, while certain other parcels that had been criticised by the applicants were not reallocated to them. With regard to two further compensation parcels, the construction of a public way and drainage measures were ordered, respectively.

On 15 June 1992 the Provincial Board, upon the applicants' appeal, gave its decision after having held a hearing with the applicants and their counsel and other parties. It had also carried out supplementary investigations, ordered a technical report and an agricultural expert opinion and had heard the applicants as regards the results.

The Provincial Board partly granted the applicants' appeal, in particular increasing the compensation in money awarded to them and changing several orders relating to the construction of a way. The Provincial Board dismissed the remainder of the applicant's appeal finding in particular that the fragmentation of the applicants' property as well as the distance between their farmhouse and their plots of land had been considerably reduced. Having regard to the results of its investigations and in particular to the expert opinions, the Provincial Board found that the compensation parcels allocated to the applicants did not require a change of their type of farming and, provided it was duly cultivated, offered yield at least equal to their former property. It noted that not each and every disadvantage which had been criticised by the Supreme Board in its decision of 4 April 1990 had been removed by the new consolidation plan, but in sum the advantages for the applicants now outweighed the disadvantages. As regards the applicants’ submissions that one of their former plots had a higher value, the Provincial Board noted that, in 1987, a request to have its designation changed had been refused and that it was still designated as agricultural land.

On 5 May 1993 the Supreme Board dismissed the applicants' appeal, after hearing the applicants and their counsel in private. It found that the compensation in land allocated to the applicants by the new consolidation plan did not show disadvantages which, in their entirety, would make the compensation unlawful. It confirmed the Provincial Board's finding that the fragmentation of land had been reduced and noted in particular that a plot close to the applicants' farm had been reallocated to them. As to the other parcels, their accessibility had been improved or measures for their improvement had been ordered. Considered as a whole, the compensation awarded to the applicants was in accordance with the law.

The Supreme Board also noted that the applicants' counsel, at the appeal hearing, had complained that the proceedings were not in conformity with the European Convention on Human Rights, in particular as they lacked publicity. The Supreme Board stated that hearings in land consolidation proceedings were to be held in private, which was in principle contrary to Article 6 § 1 of the Convention but was covered by the Austrian reservation.

On 19 July 1993 the applicants lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). Referring to Article 6 § 1 of the Convention they claimed that the land consolidation proceedings concerned their civil rights and, therefore required a public hearing and a public pronouncement of the decisions. However, according to S. 9 of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz), the authorities take their decisions after an oral hearing in the presence of the parties, i.e. they do not hold public hearings. Their decisions did not have to be pronounced publicly either. In accordance with Article 13 of the said Act the decisions were usually not pronounced at all and were only served on the parties.

On 28 September 1993 the Constitutional Court refused to deal with the applicants' complaint and, upon the applicants' request, referred the case to the Administrative Court (Verwaltungsgerichtshof).

On 15 December 1993 the applicants supplemented their complaint. They submitted in particular that the compensation in land was not in conformity with the Land Planning Act, as they had not been awarded land of equal quality and value. Further, they requested the Administrative Court to hold an oral hearing.

On 28 July 1994 the Administrative Court dismissed the applicants' complaint rejecting at the same time, in accordance with S. 39 para. 2 (6) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the applicants' request for an oral hearing. It noted that the applicants in essence complained about a violation of S. 19 para. 1 of the Land Planning Act, which guaranteed a right to be awarded compensation in land of possibly equal quality as the former property. However, in arguing that this principle had been violated by the re-allotment of parcel DO 7, they had disregarded a number of factors: the expert on agronomy had found that the underground water pipe did not infringe the use of the parcel at issue and the applicants had failed to make any submissions which would cast doubt on his findings. No considerable disadvantages had occurred on account of transmission poles as the parcel had been made smaller and only one such pole remained on the applicants' ground. As to the quality of the soil, the agricultural authorities, having had regard to the opinion of the expert member of the Provincial Board, had found that the measures for the reduction of stones, which had been carried out at public expense, made regular cultivation possible. It was true that the parcel was not suitable for every type of cultivation, but this had not been the case as regards one of the applicants' former parcels either. The applicants' submissions concerning another parcel did not show that the compensation in land was unlawful, in particular as they had failed to submit in the course of the consolidation proceedings that there were obstacles in cultivating it. As to the applicants' submissions that one of their former plots of land could be expected to be designated for building purposes, the Supreme Board had already found on 4 April 1990 that this plot was not of particular value. On account of new facts alleged by the applicants, the Provincial Board carried out investigations, as reflected in its decision of 15 July 1992. However, they showed that the plot at issue was still agricultural land. As regards a further plot of land, the Supreme Board had already found on 4 April 1990 that it did not carry disadvantages for the applicants, a finding by which the authorities were bound in the absence of any new facts. The applicants' further submissions were either unsubstantiated or they referred to parcels which they had previously criticised and which had not been re-allotted to them.

The decision was served on 12 September 1994.

B. Relevant domestic law and practice

Composition of the Agricultural Authorities

The Regional Board has eight members, all appointed by the Government of the Land of the Austrian Federation in which it exercises jurisdiction (S. 5 paras. 2 and 4 of the Federal Agricultural Authorities Act (Agrarbehördengesetz). These eight members are:

- one Land civil servant, who is legally qualified (rechtskundig) and acts as chairman;

- three judges;

- a legally qualified Land civil servant with experience in land reform, who acts as rapporteur;

- a senior Land civil servant with experience in agronomic matters;

- a senior Land civil servant with experience in forestry matters;

- an agricultural expert within the meaning of S. 52 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz).

The Supreme Board has also eight members, of which the judges are appointed by the Federal Minister of Justice and the other members by the Federal Minister of Agriculture and Forestry (see S. 6 paras 2. and 4 of the Federal Agricultural Authorities Act). These eight members are:

- one legally qualified senior civil servant from the Federal Ministry of Agriculture and Forestry, who acts as chairman;

- three members of the Supreme Court;

- a legally qualified senior civil servant from the Federal Ministry of Agriculture and Forestry with experience in land reform who acts as rapporteur;

- a senior civil servant from the Federal Ministry of Agriculture and Forestry with experience in agronomic matters;

- a senior civil servant from the Federal Ministry of Agriculture and Forestry with experience in forestry matters;

- an agricultural expert within the meaning of S. 52 of the General Administrative Procedure Act.

Procedure of the agricultural authorities

According to S. 9 paras. 1 and 2 of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz), the above agricultural authorities take their decisions after an oral hearing in the presence of the parties.

Oral hearings before the Administrative Court

According to S. 39 para. 1 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. However, §39 para. 2 (6) which was added to the Act in 1982 provides that, notwithstanding a party's application, the Administrative Court may decide not to hold a hearing if it is apparent to the Court from the written pleadings of the parties and from the files relating to the prior proceedings that an oral hearing is not likely to contribute to clarifying the case.

Public access to judgments of the Administrative Court

It is the practice of the registry of the Administrative Court to make the Court's judgments available on request. The Administrative Court also publishes a selection of its decisions each year (Eur. Court HR, Szücs judgment v. Austria and Werner judgment v. Austria, both of 24 November 1997, Reports 1997-VII, p. 2476, § 24 and p. 2505, § 24, respectively).

COMPLAINTS

1. The applicants complain under Article 6 § 1 about the lack of a public hearing and the absence of a public pronouncement of the decisions in the land consolidation proceedings involving their property.

2. The applicants also complain under Article 6 § 1 about the organisation of the agricultural authorities, claiming that they cannot be regarded as independent and impartial tribunals within the meaning of this Article. They submit in particular that the District Agricultural Authority is a purely administrative body and that the Provincial Land Reform Board, composed of three judges and five civil servants, is dominated by the latter, because some of them also act as experts. As, in case of objections of the parties, they have to decide on their own expert opinions, the proceedings also lack an adversarial character. The Constitutional and Administrative Courts also cannot be regarded as tribunals because they do not have jurisdiction as to all factual and legal issues of the case but can only quash the decisions of the agricultural authorities.

3. Moreover, the applicants complain under Article 1 of Protocol No. 1 about a violation of their right to property. They submit in particular that they received inadequate compensation in land and that the agricultural authorities as well as the Administrative Court did not duly consider their arguments as regards the loss in value and the difficulties in cultivating the land received.

PROCEDURE

The application was introduced on 6 March 1995 and registered on 19 June 1995.

On 27 February 1997 the Commission decided to communicate the applicants’ complaint concerning the lack of a public hearing and of a public pronouncement of the decisions in the land consolidation proceedings relating to their property to the respondent Government and to adjourn the proceedings pending the Court’s judgment in the Stallinger and Kuso v. Austria case. On 9 July 1997 the Commission decided to ask the Government to submit their observations, following the Court’s Stallinger and Kuso  v. Austria judgment of 23 April 1997.

The Government submitted on 8 September 1997 that they did not wish to file written observations. The applicants did not submit observations either.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court, in accordance with the provisions of that Protocol.

THE LAW

1. The applicants complain under Article 6 § 1 about the lack of a public hearing and the absence of any public pronouncement of the decisions in the land consolidation proceedings involving their property.

Article 6 § 1 of the Convention reads as follows:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

The Government, in view of the Court's judgment in the case of Stallinger and Kuso v. Austria of 23 April 1997, did not wish to submit any observations. The applicants did not submit observations either.

The Court considers that this part of the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicants also complain under Article 6 § 1 about the organisation of the agricultural authorities, claiming that they cannot be regarded as independent and impartial tribunals within the meaning of this Article.

They submit in particular that the District Agricultural Authority is a purely administrative body and that the Provincial Land Reform Board, composed of three judges and five civil servants, is dominated by the latter, because some of them also act as experts. As, in case of objections by the parties, they have to decide on their own expert opinions, the proceedings also lack an adversarial character. The Constitutional and Administrative Courts also cannot be regarded as tribunals because they do not have jurisdiction as to all factual and legal issues of the case but can only quash the decisions of the agricultural authorities.

The Court recalls that in the Ettl v. Austria case the membership of and the procedure before the land reform boards was found to be in conformity with the requirements of Article 6 § 1 of the Convention. In particular, the Court held that the fact that the majority of these boards' members were civil servants and that some of them sat on account of their experience in agronomy, forestry and agriculture, cannot give rise to doubts about the independence and impartiality of these boards. It found that such experts are needed in cases concerning land consolidation, which is an operation of great complexity and affects not only the owners directly concerned but also the community as a whole. The Court did not have doubts about the adversarial character of the proceedings either, noting in particular that, where civil servants prepare a written opinion on a given issue, the law requires that it be communicated to the parties who must be given an opportunity to submit their comments. The Court also recalls that these findings have recently been confirmed in the Stallinger and Kuso case (Eur. Court HR, Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117-A, pp. 18-19, §§ 38-40; Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports 1997-II, p. 677, § 37).

The Court finds that the applicants have not submitted any convincing arguments, which would distinguish the present application from the above-mentioned cases. Thus, there is no appearance of a violation of the applicants' right under Article 6 § 1 to have their case determined by "an independent and impartial tribunal".

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. Finally, the applicants complain under Article 1 of Protocol No. 1 about a violation of their right to property. They submit in particular that they received inadequate compensation in land and that the agricultural authorities as well as the Administrative Court did not duly consider their arguments as regards the loss in value and the difficulties in cultivating the land received.

Article 1 of Protocol No. 1 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."

The Court finds that the present case has to be considered under the first sentence of the first paragraph of Article 1 ( mutatis mutandis , Eur. Court HR, Prötsch v. Austria judgment of 15 November 1996, Reports 1996-V, p. 1824, § 42; Wiesinger v. Austria judgment of 30 October 1991, Series A no. 213, p. 26, § 72). It must, therefore, be established whether a proper balance has been struck between the demands of the community's general interest and the requirements of protecting the fundamental rights of the individual (Prötsch judgment, op. cit., § 43; Wiesinger judgment, op. cit., § 73).

The Court recalls that the purpose of land consolidation is to improve the infrastructure and the pattern of agricultural holdings by redistributing the land and providing communal facilities. It serves the interests of both the landowners concerned and the community as a whole by increasing the profitability of holdings and rationalising cultivation (Prötsch judgment, op. cit., § 44; Wiesinger judgment, op. cit., § 74).

The Court finds that the present application differs from previous land consolidation cases, in which the final consolidation scheme had not been adopted at the time the Court gave judgment and a violation was found on the ground that an excessive burden had been placed on the respective applicants due to the duration of the proceedings and the impossibility to obtain either a reconsideration of the provisional transfer or compensation for damages sustained (see Eur. Court HR., Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117-B, p. 66, §§ 77-80; Poiss v. Austria judgment of 23 April 1987, Series A no. 117-C, p. 109, §§ 67-70).

In the present case, the applicants do not complain about the provisional transfer of land, but that the compensation in land allocated to them by the final consolidation plan was inadequate. The Rapporteur notes that the 1988 consolidation plan was quashed by the Supreme Board upon the applicants' appeal in 1990. A new consolidation plan was issued in 1991. In a further set of appeal proceedings the Provincial Board as well as the Supreme Board found that the advantages which the new consolidation plan offered to the applicants outweighed the disadvantages, and that the compensation awarded to the applicants was lawful. In particular the plots allocated to them offered at least an equal yield as their former property, the fragmentation of their property had been diminished and the distance between their farmhouse and their plots of land had been reduced. In 1994 the Administrative Court, after a detailed examination of the applicants' complaints relating to the reallocation of land, upheld the Supreme Board's decision. In these circumstances there is no indication that the interference with the applicants' right to property was disproportionate to the demands of general interest involved in the consolidation proceedings ( mutatis mutandis Prötsch judgment, op. cit., pp. 1825-26, §§ 47-48).

Thus, the Court concludes that there is no appearance of a violation of the applicants' right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicants’ complaints about a lack of a public hearing and the absence of any public pronouncement of the decisions in land consolidation proceedings involving their property;

DECLARES INADMISSIBLE the remainder of the application.

S. DOLLÉ N. BRATZA

Registrar     President

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.