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CASE OF ERKNER AND HOFAUER AGAINST AUSTRIA

Doc ref: 9616/81 • ECHR ID: 001-55603

Document date: March 21, 1994

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CASE OF ERKNER AND HOFAUER AGAINST AUSTRIA

Doc ref: 9616/81 • ECHR ID: 001-55603

Document date: March 21, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgments of the European Court of

Human Rights in the case of Erkner and Hofauer against Austria

delivered on 23 April 1987 and 29 September 1987 and transmitted

the same days to the Committee of Ministers;

Recalling that the case originated in an application against

Austria lodged with the European Commission of Human Rights on

3 April 1979 under Article 25 (art. 25) of the Convention by

Mr Johann Erkner and Mrs Theresia Erkner and after Mr Erkner's

death, Mr Josef Hofauer and Mrs Theresia Hofauer, all of whom are

Austrian nationals, who complained of violations of their right

to a hearing within a reasonable time and of their right of

property;

Recalling that the case was brought before the Court by the

Commission on 14 May 1986;

Whereas in its judgment of 23 April 1987 the Court

unanimously:

- held that there had been a breach of Article 6,

paragraph 1 (art. 6-1), of the Convention as regards observance

of the "reasonable time" requirement;

- held that it had no jurisdiction to entertain the other

complaints made by the applicants under this provision;

- held that there had been a breach of Article 1 of

Protocol No. 1 (P1-1);

- held that the question of the application of Article 50

(art. 50) of the Convention was not ready for decision;

Whereas in its judgment of 29 September 1987 the Court took

formal note of a friendly settlement reached between the

government and the applicants according to which the government

agreed to pay the applicants 650 000 Austrian schillings, and

decided unanimously, after having been informed that the sum in

question had also been paid to the applicants, to strike the case

out of its lists;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of Austria to inform it of the

measures which had been taken in consequence of the judgments of

23 April 1987 and 29 September 1987, having regard to Austria's

obligation under Article 53 (art. 53) of the Convention to abide

by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Austria gave the Committee

information about the measures taken in consequence of the

judgments, which information appears in the appendix to this

resolution,

Declares, after having taken note of the information

supplied by the Government of Austria, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (94) 22

Information provided by the Government of Austria

during the examination of the Erkner and Hofauer

case by the Committee of Ministers

The Austrian Government considers that the legislative

amendments made over the last years will simplify and speed up

the proceedings in land consolidation cases and also provide an

adequate compensation regulation, thus preventing the repetition

of violations of the kind found in the present case.

The Agricultural Proceedings Act (Agrarverfahrensgesetz

1950) has been amended (BGBl Nr. 901/1993) in order to adapt it

to recent developments in administrative law, in particular under

the General Administrative Procedure Act (Allgemeines

Verwaltungsverfahrensgesetz 1950); the new act streamlines the

procedure and provides among other things for a public hearing

in agricultural proceedings.

Changes have also been introduced in the Federal

Agricultural Authorities Act (Agrarbehördengesetz 1950 - BGBl

Nr. 902/1993) in order to take into account the problems which

have arisen under the Convention. According to the new

legislation questions regarding compensation under the Federal

Agricultural Land Planning (General Principles) Act

(Flurverfassungs-Grundsatzgesetz 1951) are henceforth to be

decided by the Provincial Land Reform Board (Landesagrarsenat)

at first instance, with a right to appeal to the Supreme Land

Reform Board (Oberster Agrarsenat).

An amendment to the Federal Agricultural Land Planning

(General Principles) Act (BGBl Nr. 903/1993) introduces a general

right to compensation in land consolidation cases (Article 10 of

the act). According to the new provision, compensation may be

accorded in all cases of unlawful redistribution of land. Claims

can be filed within one month from the entry into force of the

decision confirming the consolidation plan (Zusammenlegungsplan).

The compensation in principle is calculated by comparing the

yield of the ceded property with that of the property unlawfully

given and is to be paid by those other property owners who bear

the costs of the responsible Agricultural Authority

(Agrarbehörde).

The last three reforms entered into force on 1 January 1994.

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