CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  In the case of Erkner and Hofauer*,   _______________ *   Note by the Registrar: The case is numbered 16/1986/114/162.   The    second figure indicates the year in which the case was referred to the    Court and the first figure its place on the list of cases referred in    that year; the last two figures indicate, respectively, the case's    order on the list of cases and of originating applications (to the    Commission) referred to the Court since its creation. _______________   The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:           Mr. R. Ryssdal, President,         Mr. G. Lagergren,         Mr. F. Gölcüklü,         Mr. F. Matscher,         Mr. B. Walsh,         Sir Vincent Evans,         Mr. C. Russo,   and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy Registrar,   Having deliberated in private on 24 October 1986 and 24 March 1987,   Delivers the following judgment, which was adopted on the last-mentioned date:   PROCEDURE   1.       The present case was referred to the Court by the European Commission of Human Rights ("the Commission") on 14 May 1986, within the three-month period laid down in Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention.   It originated in an application (no. 9616/81) against the Republic of Austria lodged with the Commission under Article 25 (art. 25) by Mr. Johann Erkner, Mrs. Theresia Erkner and, after Mr. Erkner's death, Mr. Josef Hofauer and Mrs. Theresia Hofauer, all Austrian nationals, in 1979 and 1984.   The Commission's request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Austria recognised the compulsory jurisdiction of the Court (Article 46) (art. 46).   The purpose of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 (art. 6-1) of the Convention and Article 1 of Protocol No. 1 (P1-1).   2.       In response to the enquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicants stated that they wished to take part in the proceedings pending before the Court and designated the lawyer who would represent them (Rule 30).   3.       On 5 June 1986, the President of the Court referred the case to the Chamber constituted to consider the case of Ettl and Others (Rule 21 § 6).   This included ex officio Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the Convention) (art. 43) and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)).   The other five members, chosen by lot on 25 October 1985, were Mr. D. Evrigenis, Mr. F. Gölcüklü, Mr. B. Walsh, Sir Vincent Evans and Mr. C. Russo (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).   Subsequently, Mr. Evrigenis died, and his place was taken by Mr. G. Lagergren, substitute judge (Rules 22 § 1 and 24 § 1).   On 17 June 1986, the President of the Court gave the applicants' lawyer leave to use the German language (Rule 27 § 3).   4.       Having assumed the office of President of the Chamber (Rule 21 § 5), Mr. Ryssdal consulted, through the Deputy Registrar, the Agent of the Austrian Government ("the Government"), the Commission's Delegate and the applicants' lawyer on the need for a written procedure (Rule 37 § 1).   On 30 June 1986, he directed that the said Agent and lawyer should each have until 15 August 1986 to submit memorials, and that the Delegate should be entitled to file a memorial in reply within two months of the day on which the last filed of these memorials was forwarded to him by the Registrar.   The applicants' memorial reached the registry on 18 August.   The Permanent Representative of Austria to the Council of Europe and the Secretary to the Commission informed the Registrar, on 21 August and 22 September respectively, that the Government and the Commission's Delegate did not intend to submit any observations in writing.   5.       Having consulted - through the Deputy Registrar - the Government's Agent, the Commission's Delegate and the applicants' lawyer, the President of the Court directed on 25 September that the oral proceedings should commence on 20 October 1986 (Rule 38).   On 13 October, the Commission provided the Registrar with a number of documents he had asked for on the President's instructions.   6.       The hearing was held in public in the Human Rights Building, Strasbourg, on the appointed day.   The Court had held a preparatory meeting immediately beforehand.   There appeared before the Court:   - for the Government     Mr. H. Türk, Legal Adviser,                 Ministry of Foreign Affairs,             Agent,     Mr. D. Okresek, Federal Chancellery,     Mr. D. Hunger, Federal Ministry of Agriculture and                 Forestry,                                Advisers;   - for the Commission     Mr. F. Ermacora,                                       Delegate;   - for the applicants     Mr. E. Proksch, Rechtsanwalt,                          Counsel.   The Court heard addresses by the above, as well as their replies to its questions.   The applicants produced documents during the hearing.   7.       On 30 December 1986 and 27 January 1987, Mr. Proksch filed with the registry two documents, the first of which gave further particulars of one point in his clients' claim for just satisfaction. The Agent of the Government supplied a document on 7 January 1987.   AS TO THE FACTS   8.       The applicants, Johann Erkner (deceased on 22 June 1983), his wife, Theresia Erkner, their son-in-law, Josef Hofauer, and their daughter, Theresia Hofauer, are Austrian farmers resident at Pöndorf, Upper Austria.   They complain of consolidation proceedings (Zusammenlegungsverfahren) taken in respect of their land since January 1969.   I.       The circumstances of the case   1.   The initial stages of consolidation   9.       In a decision given on 27 February 1969, the Gmunden District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") opened land-consolidation proceedings at Forstern-Pöndorf. Thirty-eight landowners were affected, and the operation covered 266 hectares; of these, 16 hectares were owned by Mr. and Mrs. Erkner, and about 3.5 hectares by Johann Erkner and his sister.   10.      A land-valuation hearing was held on 21 April 1969.   The twenty-six landowners present (the Erkners had been summoned, but did not attend) concluded an agreement, which was approved by the District Authority on the following day.   The decision was served on the Erkner family on 27 May 1969; they did not appeal.   Between 2 and 16 July 1969, all the parties were given notice of the valuation schedule (Bewertungsplan).   The applicants were also given notice of the remedies available but they did not appeal, and the schedule accordingly became final.   11.      A further hearing was held on 8 August 1969.   This was attended by the Erkners and their lawyer, who stated their wishes as regards reorganising the consolidation area inasmuch as it affected them.   12.      By August 1970, the District Authority had drawn up a communal facilities plan and a draft consolidation plan.   The compensatory parcels of land to be allotted to the landowners concerned had been marked out.   Mr. and Mrs. Erkner raised objections, which they maintained by and large in subsequent proceedings, including the proceedings for provisional transfer of land, which were concluded in 1975 (see paragraph 17 below), and the proceedings regarding the main reorganisation, which began in 1976 (see paragraph 19 below) and have not yet been concluded.   They argued that the parcels of land offered them were less than their due, since they were being required to give up first-class farmland which faced south and was close to their farmhouse, in return for plots which were slightly larger in area but of poor - indeed very poor - quality, being wet, and also further from the farm.   2.   The provisional transfer of parcels in compensation   13.      On 10 August 1970, the District Authority ordered the provisional transfer of compensatory parcels on the basis of the draft consolidation plan.   This decision was taken at the request of thirty-four of the landowners and opposed by the four others (including the Erkners), and it was based on section 97 of the 1911/1954 Upper Austrian Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see paragraph 40 below).   It referred to the interests of the thirty-four - in particular the interest they had in rationalising their holdings and familiarising themselves with the new land situation.   These interests outweighed the objections of those opposed to the scheme, who were at all events entitled to appeal against the consolidation measures.   The difference in area between the land held by the majority (221 hectares) and the minority was sufficient security for any compensation which the latter might later be entitled to claim.   The decision was served on the Erkners on 4 April 1973, together with a note stating that by the terms of section 97(5) of the 1911/1954 Act no appeal was possible (see paragraph 45 below).   According to the Government, several previous attempts to serve the decision had failed.   14.      The Erkners then appealed to the Administrative Court (Verwaltungsgerichtshof), claiming that this note was incorrect, since section 7 of the Federal Agricultural Authorities Act (Agrarbehördengesetz 1950 - see paragraphs 38, 45 and 48 below) had repealed section 97(5) of the 1911/1954 Act.   While essentially confirming that this was the case, the Administrative Court nonetheless dismissed the appeal on 21 September 1973, on the ground of non-exhaustion of remedies: the Erkner family should have appealed direct to the Provincial Land Reform Board (Landesagrarsenat - "the Provincial Board").   15.      The applicants had in fact applied for leave to bring an appeal (Berufung) out of time, but the District Authority had declared this application inadmissible on 25 June 1973.   That decision was upheld on 19 March 1974 by the Provincial Board, which held, notwithstanding the Administrative Court's decision, that any appeal was now ruled out by section 22(5) of the Provincial Act of 1972 (see paragraph 40 below).   16.      The Erkners then appealed to the Constitutional Court (Verfassungsgerichtshof), claiming, inter alia, that their right to be heard by the lawful judge (gesetzlicher Richter) had been violated. On 11 December 1974, the Constitutional Court dismissed the appeal as unfounded but, at the applicants' request, referred the case to the Administrative Court for a decision whether any non-constitutional rights had been infringed.   17.      In its second decision, of 23 June 1975, the Administrative Court confirmed its earlier opinion that a remedy existed and accordingly set aside the Provincial Board's decision to refuse to allow an appeal out of time.   The Board dismissed the appeal on 25 November 1975 nonetheless, and the applicants did not appeal against that decision.   18.      In spite of these proceedings, the provisional transfer of land had been effected in the meantime.   The Erkners initially continued to cultivate the fields near their farm; but the police expelled them, and the corn they had sown was destroyed.   The couple consistently refused to cultivate any of the compensatory parcels of land allotted to them.   3.   The consolidation plans and related proceedings   (a)   The first plan   19.      On 7 May 1976, the District Authority adopted the consolidation plan, which ratified unchanged the situation brought into being by the draft plan of 1970 (see paragraph 12 above); the plan was published on 25 May.   20.      Mr. and Mrs. Erkner appealed against this plan on 3 June, challenging it on essentially the same grounds as those on which which they had already objected to the provisional transfer.   They relied on an expert opinion by a university specialist in agronomy, who concluded that the exchange of land had been to the applicants' clear disadvantage and put the value of the annual loss of yield at approximately 50,000 schillings.   The Provincial Board gave its decision on 26 April 1977.   In so far as the Erkners had challenged the valuation of the land in question, it held the appeal to be inadmissible, since the valuation schedule had already become final.   In so far as they had claimed financial compensation, it ruled that it had no jurisdiction, since the District Authority had not determined the matter.   However, it allowed the appeal as regards the land awarded in compensation, finding that the applicants had lost about 14 hectares of good, south-facing land and had received in return a little under 23 hectares of land in the three least valuable categories, which faced north, was more overshadowed by forest and lay further from the farmhouse.   This meant that they had not been properly compensated as provided for by statute, especially as the arrangement adopted would require a major change in their type of farming.   The Provincial Board accordingly quashed the entire consolidation plan and remitted the case to the District Authority with a direction to reconsider the matter and adopt a new plan.   The decision was served on the applicants on 31 May 1977.   (b)   The second plan   21.      The District Authority failed to give a decision within the statutory six-month time-limit (section 73(1) of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) - see paragraph 55 below).   On 19 January 1979, the applicants applied to have jurisdiction transferred from the District Authority to the Provincial Board (section 73(2) of the same Act).   The Provincial Board granted this application and issued a new plan more advantageous to the Erkners on 18 December 1979.   The Erkners, however, considered it unsatisfactory and incompatible with the applicable legislation, and on 22 January 1980 lodged an appeal with the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme Board").   22.      The Supreme Board failed to give a decision within the statutory six-month period, and Mr. and Mrs. Erkner accordingly applied to the Administrative Court on 14 October 1980 to determine the matter itself under Article 132 of the Federal Constitution (Bundes-Verfassungsgesetz - see paragraph 55 below).   This application was not pursued, since the Supreme Board allowed the applicants' appeal on 3 December 1980 and remitted the case to the District Authority with a direction that it should adopt a new plan. It held that the allocation of a larger tract of north-facing land could not compensate for the loss of the good land facing south.   The decision was served on the applicants on 29 December.   (c)   The third plan   23.      Once again, the District Authority failed to give a decision within the statutory time-limit.   Instead, it began to consider a drainage scheme for some of the lands allotted to the Erkners, who regarded this as unreasonable.   On 30 November 1981, they accordingly applied to the Provincial Board to determine the matter itself (section 73(2) of the General Administrative Procedure Act - see paragraph 55 below).   On 14 January 1982, the Provincial Board dismissed this application. It found that the District Authority had taken steps to prepare a new plan and was not therefore responsible for the delay.   It also considered that planning a drainage scheme was acceptable at this stage in the proceedings.   24.      On 3 February, the applicants appealed to the Supreme Board against the Provincial Board's decision, which had been served on them on 21 January.   The appeal was dismissed on 22 June.   On 15 July 1982, the District Authority adopted a new plan, which provided in particular for additional communal facilities that would drain some of the land allocated to the Erkners.   This plan was published on 27 July.   25.      On 23 August, the applicants appealed against the new plan to the Provincial Board, claiming that it still failed to provide compensation complying with the Supreme Board's decision of 3 December 1980 (see paragraph 22 above).   They also challenged the accuracy of the legal description of the improvement scheme as a communal facility.   On 28 April 1983, the Provincial Board allowed the appeal.   It ordered certain changes in the land allocations made to the Erkners and other parties but confirmed, and even widened, the drainage schemes planned by the District Authority, holding that the creation of additional communal facilities of this kind was lawful.   This decision was served on the parties on 9 June.   26.      While recognising that progress had been made, the applicants considered that the requirements laid down by the Supreme Board on 3 December 1980 (see paragraph 22 above) had still not been entirely satisfied.   On 20 June 1983, they accordingly lodged a further appeal - supported by an expert opinion - with the Supreme Board.   They complained that the land offered in compensation still contained too many wet areas and had other disadvantages.   They also challenged the Provincial Board's jurisdiction to order new communal facilities and sought a decision on their claim for financial compensation for the damage they had sustained since the provisional transfer of the compensatory parcels of land (see paragraph 20 above).   On 4 April 1984, the Supreme Board dismissed the appeal as unfounded, holding that the advantages of the consolidation scheme as a whole outweighed any disadvantages and no longer made any changes in production methods necessary; the allocation decided on by the Provincial Board accordingly satisfied legal requirements.   This decision was served on the applicants on 30 May.   4.   The appeals to the Administrative Court   27.      Following the death of Johann Erkner on 22 June 1983, his daughter and son-in-law, Theresia and Josef Hofauer, took over the whole of the farm, including the share of Johann Erkner's widow, Theresia.   28.      On 10 July 1984, the three parties together lodged an appeal with the Administrative Court against the Supreme Board's decision. They argued that they had not received proper compensation in kind as provided for by statute, since there was still a deficit of south-facing land; that the allocation of land requiring additional communal drainage - at unspecified cost - was unreasonable; and that they had not been allotted land of special value (i.e. building land) close to their farm.   They further claimed that their right to be heard had been infringed and that the problem of financial compensation remained unsettled.   In a decision given on 19 March 1985 and served on 7 May, the Administrative Court declared the appeal inadmissible in so far as it had been brought by Theresia Erkner, as she was no longer a party, and in respect of the failure to determine the question of financial compensation, on the ground of non-exhaustion of remedies.   It allowed the appeal of the other two applicants as to the rest and accordingly quashed the impugned decision.   It ruled that, under the law in force, full details of communal facilities, including their cost, should be decided on when the consolidation plan was adopted, at the latest.   29.      On 3 July 1985, pursuant to this decision, the Supreme Board set aside the consolidation plan drawn up by the Provincial Board, in so far as it laid down the compensation due to the Hofauer family.   In its decision, which was served on the applicants on 16 July, the Supreme Board stated that the question of the communal facilities had to be settled first.   30.      On 18 July 1985, Mr. and Mrs. Hofauer again appealed to the Administrative Court.   They claimed that section 66 of the General Administrative Procedure Act had been contravened, since the Supreme Board had neither determined the merits itself (subsection 4) nor remitted the case to the Provincial Board for decision (subsection 2). The middle course of quashing the decision and simultaneously adjourning the proceedings was not provided for in the Act, which did not allow appeal proceedings to be resumed once a communal facilities plan had been finally adopted.   If the Supreme Board determined their appeal after the event, they would no longer have any remedy for the other complaints, which the Administrative Court had not had occasion to consider on 19 March 1985.   The Administrative Court dismissed the appeal on 12 September 1985 and notified its decision to Mr. and Mrs. Hofauer on 8 November.   31. In the meantime, the Provincial Board had taken a fresh decision on 24 October 1985 (served on the applicants on 31 October), reconsidering Mr. and Mrs. Hofauer's appeal against the latest consolidation plan, i.e. the one of 15 July 1982 (see paragraph 24 above).   In accordance with the Administrative Court's earlier judgment, of 19 March 1985 (section 63(1) of the Administrative Court Act - see paragraph 28 above), it quashed the plan on the ground that it did not comply with the procedural rules applying to any decision on communal facilities.   It added, however, that there was no reason to abandon the scheme for draining the wet land allocated to the Hofauers, since the Administrative Court had not regarded the communal facilities required for this purpose as inherently unlawful.   The District Authority should now therefore order the necessary communal measures and facilities and, once these had been completed, publish a new consolidation plan.   32.      Earlier, on 27 August 1985, Mr. and Mrs. Hofauer had applied to the District Authority for part of their land to be exempted from consolidation.   This application was dismissed on 21 April 1986, and an appeal lodged on 7 May was dismissed by the Provincial Board on 3 July.   On 25 August 1986, Mr. and Mrs. Hofauer applied to the Constitutional Court, which has not given a decision to date (24 March 1987).   33.      As the proceedings relating to the communal measures and facilities are still pending, no new consolidation plan has been adopted to date.   On 27 May 1986, however, the District Authority ordered Mr. and Mrs. Hofauer to allow a drainage system to be installed.   An appeal against this decision, lodged with the Provincial Board on 13 June, was dismissed on 23 October 1986.   On 23 December 1986, the applicants applied to the Constitutional Court, which has not given judgment to date.   5.   The proceedings relating to the claim for financial compensation   34.      In the meantime, the District Authority had contacted the applicants on the question of their claim for financial compensation for damage sustained since the provisional transfer of land - a matter which had been raised in 1976, and then in 1978, 1982, 1984 and 1985. It wanted particulars of the amount of the claim, the persons or authorities against whom it was directed and its legal basis.   On this last question, it pointed out that the statute applicable to the case - the Act of 1911/1954 - made no provision for financial compensation.   On 30 July 1985, the applicants' lawyer replied that his clients were claiming 50,000 schillings per annum since 1970, the year the provisional transfer was made, i.e. a total of 750,000 schillings, plus interest.   He said that it was not his business to inform the Authority of the relevant law, but he nevertheless referred to the decision on the provisional transfer, which expressly mentioned the possibility of claiming compensation and alluded to the property of the majority group of landowners as security.   The applicants' claim related to deprivation of property and could be founded, if no other provision applied, on Article 365 of the Civil Code.   Unless compensation was paid, the deprivation of property would amount to unconstitutional despoliation and the whole operation would be vitiated by a fundamental procedural defect making it necessary to restore the original situation.   35.      On 26 September 1985, the District Authority held that it had no jurisdiction to entertain the claim, which in any case appeared to have no basis in law.   On 11 November, the applicants appealed to the Provincial Board against this decision, which they claimed was wrong in law.   The Act itself confirmed that the agricultural authorities had jurisdiction in the matter.   No other judicial body was competent to deal with the question of an unlawful provisional transfer and compensation for ensuing damage.   The District Authority's intention in referring in its decision of 10 August 1970 (see paragraph 13 above) to the existence of sufficient security had been to make it clear that the provisional transfer should not be detrimental to the applicants. Having decided on "forced expropriation" by means of the "forced exchange", the authority was bound to mitigate the damage and find a means of offering compensation (Ausgleich).   36.      On 9 January 1986, the Provincial Board held that the appeal was inadmissible in respect of Mrs. Erkner, who was no longer a party to the proceedings (see paragraphs 27-28 above), and ill-founded in respect of Mr. and Mrs. Hofauer.   Their claim had no basis in the relevant law: the authorities had no jurisdiction to entertain compensation claims unless such matters were necessarily (unbedingt) part of the land operations, which was not so in the instant case.   It was not for the Board to determine whether or not the applicants could submit their claims to the ordinary courts.   On 19 March 1986, Mr. and Mrs. Hofauer made an application to the Constitutional Court, which has not given a decision to date (24 March 1987).   II.      The relevant legislation   1.   In general   37.      Powers in respect of land reform in Austria are divided between the Federation and the Länder.   Legislation establishing general principles is the responsibility of the Federation, while implementing legislation and law enforcement is the responsibility of the Länder (Article 12(1)(3) of the Federal Constitution).   By Article 12(2) of the Federal Constitution, decisions at final instance and at Land level are taken by boards consisting of a "chairman, judges, civil servants and experts"; "the board which decides at final instance shall be set up within the appropriate Federal Ministry". "Provision shall be made in a Federal Act for the organisation, functions and procedure of the boards and for the principles for organising the other authorities concerned with land reform".   This Act must provide that the executive shall not be able to set aside or vary the boards' decisions; it cannot exclude appeals to the provincial board against decisions by the authority of first instance.   38.      Within this constitutional framework the Federal Parliament has passed three Acts dealing with the following matters:   (i)   the legal principles applicable to land reform (Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs- Grundsatzgesetz 1951), as amended in 1977);   (ii)   the organisation of the land reform boards and the principles for organising the authorities of first instance (Federal Agricultural Authorities Act (Agrarbehördengesetz 1950), as amended in 1974);   (iii)   proceedings before agricultural authorities (Federal Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which refers to the General Administrative Procedure Act).   2.   The consolidation of agricultural land   39.      The basic rules applying to the consolidation of agricultural land are embodied in the Federal Agricultural Land Planning (General Principles) Act.   The Länder have regulated the matters for which they are made responsible under the Federal legislation in provincial agricultural land planning Acts (Flurverfassungs-Landesgesetze).   40.      In Upper Austria, consolidation is governed by the Agricultural Land Planning Act 1979 ("the Provincial Act").   This replaced an Act of 1972, which had itself replaced an Act of 1911 that had been brought into force again in 1954.   The latter Act applied when the disputed proceedings began and will accordingly remain applicable until they are concluded.   41.      The purpose of consolidation is to improve infrastructure and the pattern of agricultural holdings in a given area.   It comprises communal measures and facilities and redistribution of land.   The operation takes place in the following stages:   - the initial proceedings (section 64 et seq. of the 1911/1954 Act);   - ascertainment of the occupiers of the land in question and assessment of its value (sections 78-83);   - planning of communal measures and facilities (sections 84-92);   - provisional transfer of land, where appropriate (section 97);   - adoption of the consolidation plan (sections 92-110).   None of these stages may begin until the previous stage has been terminated with a final decision.   42.     The initial proceedings, which are instituted officially, serve to determine the consolidation area, which, in addition to farmland and forest, may include land voluntarily offered for consolidation and land required for communal facilities.   The owners form an association (Zusammenlegungsgemeinschaft), which is a corporate body governed by public law.   The institution of proceedings means that land use is restricted until the proceedings are concluded; any change in use must be approved by the appropriate agricultural authority.   43.      Once the decision to open proceedings has become final, the agricultural authority ascertains who are the occupiers of the land and assesses its value.   Its decision (Besitzstandsausweis und Bewertungsplan) determines the value of the land in accordance with precise statutory criteria.   Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others.   Once the agricultural authority's decision has become final, however, it is binding on all of them.   44.      Communal measures (e.g. soil improvement, alterations to terrain or landscape) and communal facilities (e.g. private roads, bridges, ditches, drainage and irrigation) are ordered where they are needed to provide suitable access to or permit effective cultivation of the compensatory parcels of land, or if they otherwise assist the consolidation scheme in the interests of the majority of the parties concerned.   Alteration, relocation or removal of existing facilities may also be ordered.   All these matters are embodied in a specific decision by the relevant authority (Plan der gemeinsamen Massnahmen und Anlagen), which must also settle the question of costs, usually shared by the landowners.   45.      Under section 97 of the Provincial Act of 1911/1954, land may be provisionally transferred, even if some owners object, where:   - the compensatory parcels provided for in the draft consolidation plan have already been marked out;   - delay in implementing the said plan might seriously prejudice the owners requesting a transfer; and   - there is sufficient security that owners opposed to the transfer will be compensated for any disadvantages they may suffer.   By section 97(5), decisions by the competent authorities ordering provisional transfers are not appealable; but section 7 of the (later) Federal Agricultural Authorities Act provides that the final decision shall lie with the Provincial Land Reform Board, except in cases where an appeal lies to the Supreme Board (see paragraph 48 below).   The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period. The land transferred becomes the property of the transferees subject to a condition subsequent: it reverts if the allocation is not confirmed in the final consolidation plan (Eigentum unter auflösender Bedingung).   46.      At the end of the proceedings, the agricultural authority adopts the consolidation plan (Zusammenlegungsplan).   Since 1977, this has had to be published within three years of the final decision to provisionally transfer parcels of land (section 7a(4) of the Federal Agricultural Proceedings Act).   The adoption of the plan is an administrative act which is supported by maps and other technical data, and whose main function is to determine the compensation due to the landowners who are parties to the proceedings.   The Provincial Act includes the following regulations on this matter:   - "When compensatory parcels are being determined, regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme" (section 91(1));   - "Any landowner whose land is included in the consolidation scheme   ... shall be entitled to compensation corresponding to [its] value   ... in the form of other land included in the [same] scheme" (section 27(1));   - "No one may, against his will, be allocated compensatory parcels which he cannot cultivate without relocating his farmhouse or substantially changing the nature of his farm" (section 28(1)).   An implementing decree (Zusammenlegungsverordnung), likewise of 1911, further provides that:   - the ratio between value and area of the compensation parcels shall be the same as for the lands transferred or to be transferred (section 108);   - the proportions of orchard, field and meadow shall generally remain the same (section 109);   - as far as possible, the compensatory parcels shall be adjacent and so shaped as to facilitate cultivation, and their orientation shall be the same as that of the lands surrendered or to be surrendered (section 110);   - their length and width shall be in proportion (section 110);   - the average distance between them and the farmhouse shall not as a rule be greater than that between the farmhouse and the lands transferred or to be transferred (section 114).   47.      Financial compensation may be paid for differences in value not exceeding 5% of the compensation due (sections 27(2) and 29(2) of the Provincial Act).   The provincial legislation does not provide for any financial compensation for damage which landowners who have successfully challenged the lawfulness of compensation received in land suffer before a final consolidation plan comes into force.   3.   The agricultural authorities   48.      The first-instance authority in Upper Austria is the District Agricultural Authority, which is a purely administrative body.   The higher authorities are the Provincial Board, established at the Office of the Provincial Government (Amt der Landesregierung), and the Supreme Board, set up within the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft).   Decisions (Bescheide) of the District Authority can be challenged by way of appeal (Berufung) to the Provincial Board, whose decision is final except where it has varied the decision in question and where the dispute concerns one of the issues listed in section 7(2) of the Federal Agricultural Authorities Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board.   In Austrian law the land reform boards are classified as boards whose members include judges (Kollegialbehörden mit richterlichem Einschlag) and which constitute a kind of "specialised administrative tribunal".   49.      The Provincial Board has eight members, all appointed by the Government of the Land (section 5(2) and (4) of the Federal Agricultural Authorities Act), viz.:   - 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 (Landesbeamter des höheren Dienstes) with experience in agronomic matters;   - a senior Land civil servant with experience in forestry matters; and   - an agricultural expert within the meaning of section 52 of the General Administrative Procedure Act.   50.      The Supreme Board likewise has eight members (section 6(2) and (4) of the Federal Agricultural Authorities Act), viz.:   - 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; and   - an agricultural expert within the meaning of section 52 of the General Administrative Procedure Act.   The judicial members are appointed by the Federal Minister of Justice, and the others by the Federal Minister of Agriculture and Forestry.   51.      Section 52 of the General Administrative Procedure Act, which is referred to in sections 5(2) and 6(2) of the Federal Agricultural Authorities Act, provides:   "1.   If it becomes necessary to take expert evidence, the authority shall rely on the services of the official experts (Amtssachverständige) attached to it or put at its disposal.   2.   However, by way of exception, the authority may also consult other suitable persons sworn as experts if no official experts are available or if it becomes necessary having regard to the particular circumstances of the case.   ..."   52.      Members of land reform boards are appointed for five years and may be re-appointed (section 9(1) of the Federal Agricultural Authorities Act).   They cease to hold office before the expiry of their term if, inter alia, they no longer satisfy the conditions of appointment (section 9(2)).   Any member may, at his own request, be relieved of his office on health grounds or for professional reasons which prevent him from properly discharging his duties (section 9(3)). If a judicial or civil-servant member is suspended from duty by decision of a disciplinary tribunal, he shall automatically also be suspended from duty as a member of a land reform board (section 9(4)).   53.      The members of these boards discharge their duties independently and are not subject to any instructions (section 8 of the Federal Agricultural Authorities Act and Article 20(2) of the Federal Constitution).   The executive can neither set aside nor vary their decisions (section 8 of the Federal Act and Article 12(2) of the Federal Constitution - see paragraph 37 above).   The decisions can be challenged in the Administrative Court (section 8 of the Federal Act).   54.      The pattern of organisation described above was the outcome of a legislative change in 1974 following a judgment of the Constitutional Court in the same year.   In the Constitutional Court's view, the land reform boards as constituted under the 1950 Act could not be regarded as being independent and impartial tribunals within the meaning of Article 6 § 1 (art. 6-1) of the Convention - their members included at that time a Minister from the Federal Government (in the case of the Supreme Board) or the relevant provincial government (in the case of the provincial boards), and the other members could be dismissed at any time by the relevant authorities (judgment of 19 March 1974, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974, vol. 39, no. 7284, pp. 148-161).   The new legislation excluded from the boards anyone who was a member of either the Federal Government or a provincial government, introduced provisions governing the term of office and the dismissal of members and provided for appeal to the Administrative Court (sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities Act 1974).   4.   Procedure before land reform boards   55.      Procedure before the land reform boards is governed by the Federal Agricultural Proceedings Act (see paragraph 38 above), section 1 of which stipulates that the General Administrative Procedure Act shall apply - except for one section of no relevance in the instant case - subject to the variations and additional provisions made in the Federal Act.   The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act).   By section 9(1) and (2) of the Federal Act, the boards take their decisions after a private hearing.   This is normally attended by the parties, who may consult the file (section 17 of the General Administrative Procedure Act).   The parties may appear in person or be represented (section 9(3) of the Federal Act).   The chairman may call witnesses and, in order to obtain information, civil servants who contributed to the decision at first instance and to the preparation of the decision (section 9(5)).   Hearings begin with a report by the rapporteur; the board then clarifies the subject-matter of the dispute by hearing evidence from the parties and the witnesses and by looking at the legal and economic situation in detail (eingehend) (section 10(2)).   It proceeds on the basis of the facts found by the authority below, but can also order further investigations to be made by that authority or by one or more of its own members (section 10(1)).   The parties must be able to acquaint themselves with the findings made as a result of the taking of evidence (Beweisaufnahme) and to submit their comments (section 45(3) of the General Administrative Procedure Act).   The boards deliberate and vote without the parties being present. After discussing the outcome of the hearing, the rapporteur submits conclusions (Antrag); anyone wishing to submit different conclusions (Gegen- und Abänderungsanträge) must give reasons for them (section 11(1) of the Federal Act).   The chairman determines the order in which the conclusions are put to the vote (ibid.).   The rapporteur votes first, followed by the judges and then the other members, including the chairman, who votes last and has a casting vote if the votes are divided equally (section 11(2)).   If an appeal is brought - within the prescribed two weeks (section 7(3)) - and is held to be admissible, the appropriate board will, if it considers the findings of fact so defective that a new hearing appears to be unavoidable, quash the disputed decision and remit the case to the authority below; otherwise it will determine the merits of the case itself (section 66(2) and (4) of the General Administrative Procedure Act).   It may vary either the operative part of the impugned decision or the reasons given for the decision (section 66(4)).   Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73(1)).   If the board's decision (Erkenntnis) is not notified to the parties concerned within that time, the parties may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73(2)).   If the latter authority fails to give a decision, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act).   Reasons must be given for the boards' decisions, which must summarise clearly (klar und übersichtlich) the findings of the investigation, the assessment of the evidence, and the ruling - on the basis of that material - on the legal issues arising in the case (sections 58(2) and 60 of the General Administrative Procedure Act).   Decisions are sent to the parties; a board may, however, choose to give its decision forthwith (section 13 of the Federal Act).   5.   Appeals to the Constitutional Court and the Administrative Court   56.      The decisions of land reform boards can be challenged in the Constitutional Court.   The latter reviews whether there has been any infringement of an applicant's rights under the Constitution and whether any decree (Verordnung) unauthorised by statute law or any unconstitutional statute or international treaty unlawful (rechtswidrig) under Austrian law has been applied (Article 144 of the Federal Constitution).   57.      As an exception to the general rule laid down in Article 133(4) of the Federal Constitution, section 8 of the Federal Agricultural Authorities Act provides for an appeal to the Administrative Court against the decisions of land reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court, which, if it rules that there has been no infringement of the right relied on in the application to it, will refer the case to the Administrative Court if the applicant so requests (Article 144(3) of the Federal Constitution).   Under Article 130 of the Federal Constitution, the Administrative Court hears determines applications alleging the unlawfulness of an administrative act (Bescheid) or coercion (Befehls- und Zwangsgewalt) against an individual or the breach by a competent authority of its duty to take a decision.   It also hears appeals against decisions by boards whose members include judges - such as the land reform boards - where such jurisdiction is conferred on it by statute (see paragraphs 48 and 54 above).   If the Administrative Court does not dismiss the application as unfounded, it will quash the decision appealed against; it determines the merits itself only where the relevant authority has failed in its duty to give a decision (section 42(1) of the Administrative Court Act (Verwaltungsgerichtshofgesetz)).   When reviewing the lawfulness of an administrative act or of a