FIRST SECTION

CASE OF BACHMAYER v. AUSTRIA

( Application no. 36650/05 )

JUDGMENT

STRASBOURG

28 October 2010

FINAL

28/01/2011

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bachmayer v. Austria ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , judges, and Søren Nielsen , Section Registrar ,

Having deliberated in private on 7 October 2010 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 36650/05) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian nationals, Mr Franz Bachmayer , Sr. and Mr Franz Bachmayer , Jr. (“the applicants”), on 12 October 2005 .

2 . The applicants were represented by Mr E. Proksch, a lawyer practising in Wien. The Austrian Government (“the Government”) were r epresented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs .

3 . On 28 August 2008 the President of the First Section decided to give notice of the application to the Gove rnment . I t was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 ) .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicants , Franz Bachmayer , S r . and Franz Bachmaye r , Jr. were born in 1939 and 1968 respectively and live in Stuhlfelden .

5 . The applicants have an inalienable and indefinite right to the use of wood ( Einforstungsrecht ) from certain plots of land now owned by the Republic of Austria and managed by the Austrian Federal Forestry Administration ( Österreichische Bundesforste ). In 1870 and 1876 the applicant ' s predecessors were granted the right to exchange their right to the use of the wood for ownership of the land.

6 . On 6 September 1978 the first applicant and Jakob Bachmayer , the second applicant ' s legal predecessor, requested this exchange.

7 . On 27 June 1985 the Salzburg Office of the Regional Governor in its capacity as Agricultural Authority ( Amt der Landesregierung als Agrarbehörde ) dismissed the request (“count 1”, divided in to “lit.a”, “lit.b” and “lit.c” with regard to different rights). However, in the same decision the authority granted a request by the Austrian Federal Forests to pay compensation in exchange for the right to use the wood (“count 2”). The first applicant and Jakob Bachmayer appealed against this decision to the Regional Land Reform Board ( Landesagrarsenat – hereafter “the Regional Board”) . Subsequently , on 30 April 1986, they filed a r equest for transfer of jurisdiction ( Devolutionsantrag ).

8 . On 2 July 1986 the Supreme Land Reform Board ( Oberster Agrarsenat – S upreme B oard) dismissed the request for transfer of jurisdiction , because the questions at issue were of a high complexity and several expert opinions were required.

9 . A further request for transfer of jurisdiction by the first applicant and Jakob Bachmayer was dismissed by the Supreme Land Reform Board on 27 February 1991. They filed a complaint against this decision with the Administrative Court , which was dismissed on 8 October 1991.

10 . Meanwhile, on 16 January 1991, the second applicant and M r Ja kob Bachmayer concluded a contract on the transfer of the rights of the latter to the second applicant.

11 . On 15 April 1992, a fter having held oral hearings in 1991 and 1992 the Regional Board , in a partial decision, dismissed the appeal against the Office of the Regional Governor of 27 June 1985 as regards “count 2” of the decision and also determined a new amount of compensation. As regard s “count 1” several hearings were held between 1992 and 17 November 1995. On the latter date the Regional Board dismissed the applicants ' appeal against “count 1 lit.c”.

12 . On 21 February 1996 the applicants again requested a transfer of jurisdiction concerning their appeal against “count 1 lit.a” and “lit.b”.

13 . On 5 June 1996 the Supreme Land Reform Board granted the transfer of jurisdiction, and subsequently appointed an expert, inspected the location and gave the applicants and the Austrian Federal Forestry Administration the possibility to submit comments on the expert opinion.

14 . On 1 April 1998 the Supreme Land Reform Board granted the appeal and amended the decision of 27 June 1985. It determined the size of the land the applicants would receive in exchange for their right to the use of the wood and determined the compensation payments to be made by the applicants.

15 . On 4 June 1998 t he Austrian Federal Forestry Administration lodged a complaint with the Administrative Court against that decision.

16 . The Administrative Court , on 21 February 2002 , quashed the decision of the Supreme Land Reform Board. It held , inter alia , that the calculation of the compensation was erroneous, because the additional benefit that could be derived from using the land for hunting had not been taken into account.

17 . On 4 December 2002 the Supreme Land Reform Board held a hearing and decided again on the appeal , modifying its previous decision.

18 . The Austrian Federal Forestry Administration lodged a complaint with the Constitutional Court on 31 January 2003.

19 . On 13 October 2004 t he Constitutional Court instituted proceedings for review of the constitutionality of one of the legal provisions the decision of the Supreme Land Reform Board was based on.

20 . On 10 March 2005 the Constitutional Court held that the legal provision under review was not in accordance with the Federal Constitution and therefore, on the same date and without having held an oral hearing, quashed the decision of the impugned authority of 4 December 2002.

21 . On 7 November 2005 the Supreme Land Reform Board , quashed the Office of the Regional Governor ' s decision of 27 June 1985 and remitted the case back to th at authority . The applicants filed a complaint with the Constitutional Court against that decision.

22 . On 6 June 2006 the Constitutional court declined to deal with the applicants ' complaint for lack of prospect s of success and, upon their request, transferred the case to the Administrative Court . The case is s till pending before that court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

23 . The applicant s complained that the length of the proceedings was incompatible with the “reasonable time” re qu irement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

24 . The Government contested that argument.

A. Admissibility

25 . The Government submitted that the applicant s had failed to exhaust domestic remedies . In addition to applying for transfer of jurisdiction they should also have appealed against the dismissal of those requests by the higher authorities, and eventually file complaints with the Administrative Court and the Constitutional C ourt in ord e r to make full use of this remedy.

26 . The applicants disagreed .

27 . The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see Aksoy v. Turkey , judgment of 18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI, pp. 2275-76, §§ 51-52; Akdivar a nd Others v. Turkey , judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67; and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey , no. 41964/98, § 64, 27 June 2006). Moreover, the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism ; it only requires that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible, both in theory and in practice (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII , and Dalia v. France , 19 February 1998, § 38, Reports 1998-I).

28 . The Court reiterates that a request for transfer of jurisdiction under section 73 of the General Administrative Procedure Act constitutes, in principle, an effective remedy which has to be used in respect of complaints about the length of administrative proceedings (see Egger v. Austria (dec.), no. 74159/01, 9 October 2003).

29 . The Court notes that on various occasions the applicants applied for transfer of jurisdiction. The Supreme Land Reform Board dismissed these r e qu e sts on 2 July 1986, on 27 February 1991 and 7 Oc t ober 1992 . The applicants filed a complaint against the decision of 27 February 1991 with the Administrative C ourt , which, however, was unsuccessful. In February 1996 the applicants again filed a request for transfer of jurisdiction which was accepted by the Supreme Land Reform Board on 5 June 1996.

30 . The Court is therefore not persuaded by the G overnment ' s argument . To expect the applicant s not only to appl y for a transfer of jurisdiction but also to institute court proceedings against the refusal of such a transfer before both the Administrative C ourt and the Constitutional Court would overstretch the duties incumbent on them under Article 35 § 1 of the Convention . Re quiring an applicant to make such an extensive use of this remedy would in the end defeat its primary purpose, namely , to accelerate proceedings , and cannot be considered as “ normal recourse ” to a remedy for the purposes of Article 35 § 1 . The Court concludes that the applicants complied with their obligation to exhaust domestic remedies.

31 . The Court therefore rejects the Government ' s argument that the domestic remedies were not exhausted.

32 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

33 . As regards the period to be taken into consideration the Court observes that the applicants were not party to the proceedings for dissolution of the right to the use of the wood from the beginning. While the first applicant started these proceedings on 6 September 1978 together with Jakob Bachmayer by filing a request for exchange , the second applicant only joined the proceedings on 16 January 1991, when he concluded a contract with Jakob Bachmayer for transfer of the rights to him (see paragraph 10 above). Thus the period to be taken into consideration is different for the two applicants. In respect of the first applicant the relevant period started on 27 June 1985 when the Salzburg Office of the Regional Governor in its capacity as Agricultural Authority partially dismissed the request , as it was from that moment that a “dispute” arose within the meaning of Article 6 § 1 of the Convention (see König v. Germany , 28 June 1978, § 98, Series A no. 27, and Morscher v . Austria , no. 54039/00, § 38, 5 February 2004). In respect of the second applicant it started when he became the successor of Jakob Bachmayer (see Cocchiarella v. Italy [GC], no. 64886/01, § 113 , ECHR 2006 ‑ V ).

34 . The proceedings , which have not yet ended , have lasted more than twenty - five years in respect of the first applicant and more than nineteen years in respect of the second applicant .

35 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, and the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43 , ECHR 2000 ‑ VII ) .

36 . The Court accepts that the proceedings at issue have been complex , as they have involved difficult questions of law , including the review of the constitutionality of the provisions the Austrian authorities applied , leading to the Constitutional Court ' s judgment of 10 March 2005 . T he applicants have not cause d substantial delays. The proceedings have lasted for more than twenty - five years for the first applicant and for more than nineteen years for the second applicant, which cannot be considered reasonable. There has accordingly been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

37 . The applicants further complain ed under Article 6 of the Convention about the lack of a public hearing before the Constitutional Court . The y also complain ed under Article 1 of Protocol No. 1 that the Republic of Austria , by repeatedly appealing against the decisions of the agricultural authorities, wa s trying deliberately to delay the exchange of the right to the use of the wood for ownership of the land.

38 . However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

39 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

40 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

41 . The applicants claimed 10,000 euros (EUR) in respect of pecuniary damage. They submitted that the Federal Forest Administration has been refusing to deliver them timber since the year 2000 and that they have had, therefore, to obtain the timber necessary for their farming elsewhere.

42 . The Government dispute d this claim. They argue d that the applicants have merely claimed a lump sum without giving any explanation as to how they calculated this claim. Moreover, the applicants ceased to receive timber from the Federal Forest Admin i stration as a result of an agreement concluded by both parties in the co urse of a hearing on 4 November 1999 before the Agricultural District Authority , according to which the parties agreed not to use the commutation plots for forestry purposes any more.

43 . The Court considers that the applicants have not succeeded in showing that their cla im for pecuniary damage is well- founded. It therefore rejects this claim.

B. Costs and expenses

44 . The applicants also claimed EUR 34,505.12 for the costs and expenses incurred before the domestic courts and authorities between 1995 and 2008 and EUR 3 , 934 . 61 for those incurred before the Court. Both amounts include turnover tax .

45 . The Government considered these amounts excessive. As regards the domestic proceedings , only expenses relating to the filing of the three request s for transfer of jurisdiction, as a means of accelerating proceedings, could be taken into account.

46 . According to the Court ' s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Moreover, only those costs incurred in domestic proceedings in an attempt to prevent or redress the violation found by the Court may be reimbursed.

47 . In the present case the C ourt considers that in principle the applicants can only claim expenses incurred in the domestic proceedings which had the purpose of expediting the m, namely , the expenses for their repeated requests for transfer of jurisdiction. However, the Court is also convinced that the exceptional length of the proceedings – more than twenty - five years for the first applicant and more than nineteen years for the second applicant – had an effect on the costs of the domestic proceedings which is difficult to specify (see Bouilly v. France , no. 38952/97, § 33, 7 December 1999) . Having regard to these considerations the Court finds it appropriate to awa r d the applicants jointly EUR 2,5 00 for costs and expenses incurred in the domestic proceedings plus any tax that may be chargeable to th e m on this amount.

48 . As to the costs of the proceedings before the Court, the Court considers it reasonable, having regard to similar cases, to award the applicants jointly EUR 1,500 under this head plus any tax that may be chargeable to them on this amount.

C. Default interest

49 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicants jointly , within three months from the date on which the judgment becomes f inal in accordance with Article 44 § 2 of the Convention , EUR 4,000 ( four thousand euros ), plus any tax that may be chargeable to the applicant s in respect of costs and expenses ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant s ' claim for just satisfaction.

Done in English, and notified in writing on 28 October 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President