CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mai 1991

.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 A.E. and L.E.,                          A.S. and R.S. and                          J.H. and M.H.                       against Austria             The European Commission of Human Rights (Second Chamber) sitting in private on 31 May 1991, the following members being present:                 MM. S. TRECHSEL, President of the Second Chamber                   F. ERMACORA                   G. JÖRUNDSSON                   A. WEITZEL                   H.G. SCHERMERS              Mrs.   G. H. THUNE              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                Mr.   K. ROGGE, Secretary to the Second Chamber           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 A.E. and L.E., A.S. and R.S. and J.H. and M.H. against Austria and registered on 29 April 1988 under file No. 13811/88;           Having regard to:        -   the Commission's decision of 12 July 1989 to bring the         application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         6 December 1989 and the observations in reply submitted by         the applicants on 13 February 1990 and supplemented on         25 June 1990, 29 April and 10 May 1991;        -   the Commission's decision of 8 December 1990 to refer the         application to the Second Chamber;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The applicants are Austrian citizens residing at O., 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 pp. 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.   On 27 August 1973 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.   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. and S. and construction of an access way in the case of the predecessors of the applicants H. - 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 3 March 1982 the Supreme Board allowed the appeals of the applicants, 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 ground 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.   The Provincial Board decided the appeals on 19 December 1989.           The applicants S. and H. did not lodge any further remedies against the decisions concerning their cases which therefore became final.   The applicants E. complained to the Constitutional Court.   On 27 June 1990 it took a decision in summary proceedings by which it refused to deal with the matter and referred the case to the Administrative Court, as requested by the applicants.   The latter Court rejected the applicants' complaints on 12 March 1991.   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 23 April 1987, (Eur.   Court H.R., Series A No. 117, p. 84 et seq.).     PROCEEDINGS           The application was introduced on 14 January 1988 and registered on 29 April 1988.           On 12 July 1989 the Commission decided to give notice of the application to the respondent Government who were invited to submit observations in writing on the admissibility and merits of the application before 10 November 1989.   At the Government's request, this time-limit was subsequently extended to 8 December 1989.           The Government submitted their observations on 6 December 1989 and the applicants replied thereto on 13 February 1990.   They submitted supplementary information on 25 June 1990, 29 April and 10 May 1991.           In the meantime, on 8 December 1990, after consulting the parties, the Commission had decided to refer the case to the Second Chamber.   THE LAW           The applicants complain that, in agricultural land consolidation proceedings concerning their property, their civil rights and obligations were not determined "within a reasonable time" as required by Article 6 para. 1 (Art. 6-1), first sentence,   of the Convention which 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 Government do not contest the applicability of this provision.   They further admit that the applicants have complied with the requirements of Article 26 (Art. 26) of the Convention concerning the exhaustion of the domestic remedies.   The Commission is therefore required to deal with the substance of the case.           As regards the beginning of the period to be considered, the Government submit that it started on 27 August 1973, the date when the applicants appealed against the first consolidation plan.   Only from this moment was there a "dispute" concerning the civil rights of the applicants.   The applicants do not contest this.           As regards the end of the relevant period, the applicants submit that the agricultural land consolidation proceedings remained pending: in the case of the applicants S. and H. until the Provincial Land Reform Board's decision of 19 December 1989, and in the case of the applicants E. until the Administrative Court's decision of 12 March 1991.   According to them there was no final determination of their civil rights before these dates.           The Government submit that the applicants' civil claims have been determined by the Administrative Court's decisions of November 1980,   which indicated which compensation parcels would be allotted to the applicants.   They were also the basis of the Supreme Land Reform Board's decision of 3 March 1982.   The subsequent proceedings concerned only general measures (drainage conditions in the E. and S. cases, and development of one parcel in the H. case) and should be considered separately for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.   During both rounds of the proceedings issues of such complexity were to be determined that the length of the proceedings could be regarded as reasonable.           It is thus in dispute between the parties whether the length of the entire proceedings from August 1973 (16 years 3 months and 23 days in the case of the applicants S. and H., 17 years 6 months and 14 days in the case of the applicants E.) is relevant for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention, or whether the running of the relevant period was interrupted in November 1980 or March 1982.           Whatever answer is given to this question, the Commission cannot find that the applicants' complaint concerning excessive length of the proceedings is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) the Convention.   It must be examined as to the merits under Article 6 para. 1 (Art. 6-1) of the Convention.             For these reasons, the Commission unanimously           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case     Secretary to the Second Chamber        President of the Second Chamber              (K. ROGGE)                           (S. TRECHSEL)