CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 juillet 1989

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 13811/88                       by E. et al.                       against Austria             The European Commission of Human Rights sitting in private on 12 July 1989, the following members being present:                MM.   C. A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 14 January 1988 by E. et al.,   against Austria and registered on 29 April 1988 under file No. 13811/88;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are Austrian citizens residing at Obritzberg, Lower Austria.   They are represented by Rechtsanwalt Dr. Richard Wandl of St. Pölten.           The applicants are partly the persons, partly legal successors of the persons who brought Application No. 9273/81 which the Commission declared admissible on 9 March 1984 (cf. D.R. 36 p. 5).   That case concerned the organisation of the agricultural authorities before which land consolidation proceedings under the Lower Austrian Land Planning Act (Flurverfassungsgesetz) were conducted in respect of the applicants' land.   The Commission considered that the organisation of these authorities infringed Article 6 para. 1 of the Convention (cf.   Comm.   Report 3.7.85) whereas the European Court of Human Rights finally found no violation of Article 6 para. 1 in this respect (cf. judgment of 23 April 1987, Series A no. 117 p. 3 et seq.).   The present case concerns the same proceedings.   The applicants now complain of their length.           The development of these proceedings can be summarised as follows:           On 30 July 1973 the Lower Austrian Agricultural District Authority (Agrarbezirksbehörde) published a consolidation plan for Obritzberg which included the applicants' land.   The applicants lodged an appeal with the Provincial Land Reform Board (Landesagrarsenat), claiming that they had not received land compensation as provided for in the Lower Austrian Agricultural Land Planning Act.   The grounds of appeal differed from one applicant to the other according to the way in which the consolidation plan affected each individual's property.           The Provincial Board gave its decisions on 26 and 27 May 1975, after hearing the parties and several other landowners affected by the changes the applicants were seeking.   It made a number of variations in the land compensation awarded to the applicants.           The applicants then appealed to the Supreme Land Reform Board (Oberster Agrarsenat).   On 6 October 1976, the Supreme Board allowed the appeals of the applicants E. and S. to the extent that they were complaining of a danger that some of the parcels of land allotted to them in compensation for their original land might be eroded by water, and it consequently ordered that a number of drainage measures should be taken; for the rest, their appeals were dismissed, as were those of the remaining applicants in their entirety.           The applicants then lodged complaints with the Constitutional Court (Verfassungsgerichtshof).   In particular they claimed that they had been deprived of their right to a decision by the lawful judge (gesetzlicher Richter - Article 83 (2) of the Federal Constitution) and that there had been an infringement of their right of property.           In judgments of 1 and 28 February and 19 March 1980 the Constitutional Court rejected the complaints as unfounded.   At the applicants' request, it referred the cases to the Administrative Court (Verwaltungsgerichtshof) for the latter to determine whether any non-constitutional rights had been infringed.           In the Administrative Court the applicants challenged the lawfulness of the land compensation awarded to them.   They claimed inter alia that the requirements of the Lower Austrian Agricultural Land Planning Act and of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz) had not been complied with.           On 11 and 25 November 1980 the Administrative Court held that there had been a breach of the applicants' procedural rights; it dismissed the other complaints.   The judgments, which were worded in similar terms, stated inter alia that the Supreme Board had ordered a number of measures to be taken - drainage of the land allocated to the applicants E. S. and H. and construction of an access way in the case of the predecessors of the applicants Haftner - without specifying all the works that were necessary, without giving sufficient reasons for its decision and without having established all the material facts.   In the case of the applicants E., the Board had obtained an opinion (Stellungnahme) from its agronomist member on the problem of the erosion of certain land but had not communicated it to the applicants, who had accordingly not been able to comment on it. The Administrative Court consequently quashed the impugned decisions on these points on grounds of procedural irregularity and remitted the cases to the Supreme Board.           On 2 December 1981 the Supreme Board rejected the appeal of the applicants Haas as inadmissible.   These applicants have not complained to the Constitutional and Administrative Courts of this decision, which accordingly became final.           On 3 March 1982 the Supreme Board allowed the appeals of the applicants E. S. and H., finding in each case on the basis of new expert evidence that there were consequences of general measures which could influence the lawfulness of the applicants' land compensation.   As the Supreme Board was not competent to deal with these general measures as such, it referred the three cases to the Agricultural District Authority.           This authority held hearings on 17 December 1982, 16 December 1983 and 20 January and 4 October 1984.   On 27 March 1985 it adopted a plan of general measures involving modification of road construction and canalisation in order to avoid water erosion on the applicants' compensation parcels.   The applicants appealed against this decision, inter alia, on the grounds that the measures adopted were insufficient.   On 1 July 1986 the Provincial Land Reform Board partly allowed the appeals in this respect and referred the case back to the Agricultural District Authority.   By decisions of 19 July 1988 (applicants H.) and 11 October 1988 (two decisions concerning the applicants S.) this authority ordered certain additional measures.   All applicants (including the applicants E.) appealed again to the Provincial Board contending that the new measures unfavourably affected their compensation parcels.   These appeals were still pending on 16 June 1989.   COMPLAINTS           The applicants complain that in the above agricultural land consolidation proceedings their civil rights have not been determined within a "reasonable time" as required by Article 6 para. 1 of the Convention.   They invoke in particular the Poiss judgment of the Court (Eur.   Court H.R., judgment of 23 April 1987, Series A No. 117, p. 84 et seq.).   THE LAW           The applicants complain of the length of agricultural land consolidation proceedings to which their properties were subjected. They invoke Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, reads as follows:   "In the determination of his civil rights and obligations   ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".           The proceedings concerning all applicants started in July 1973. Those concerning the applicants E. S. and H. are still pending and thus have lasted about 16 years.   The Commission finds that further clarification concerning the length of the proceedings is necessary and that the respondent Government, and subsequently the applicants concerned, should be invited to submit observations in writing on the admissibility and merits of this part of the application.           As regards the applicants A. and M. H., the Commission notes that the proceedings in their case were terminated by the decision of the Supreme Land Reform Board of 2 December 1981 against which they did not appeal to the Constitutional Court or the Administrative Court.   Even assuming that such appeals could not have provided redress concerning the length of proceedings, and that for this reason the applicants were not, under Article 26 (Art. 26) of the Convention, required to lodge such appeals for the purpose of exhausting the domestic remedies in this respect, the Commission notes   that they did not introduce the present application until 14 January 1988, i.e. more than six months after the termination of the domestic proceedings.   They thus have not complied with the time-limit stipulated by Article 26 (Art. 26) of the Convention.   The complaint of these applicants must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           1.   DECLARES THE APPLICATION INADMISSIBLE insofar         as it was introduced by A. and M. H.;           2.   DECIDES TO ADJOURN THE PROCEEDINGS as regards         the remaining applicants.     Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)