CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 septembre 1993

.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. 14249/88                       by L.P. and T.P.                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 1 September 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  N. BRATZA              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 4 June 1987 by L.P. and T.P. against Austria and registered on 27 September 1988 under file No. 14249/88;         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 facts of the case as submitted by the applicants may be summarised as follows:         The applicants, Austrian citizens born in 1902 and 1906 respectively who live on their farm at Dietersdorf, Lower Austria, are represented by Rechtsanwalt Dr. Richard Wandl of St. Pölten. They complain of agricultural land consolidation proceedings (Zusammenlegungsverfahren) under the Lower Austrian Agricultural Land Planning Act (Flurverfassungsgesetz) to which their land has been subjected.         The facts submitted may be summarised as follows.         The consolidation plan (Zusammenlegungsplan) was issued by the Agricultural District Authority (Agrarbezirksbehörde) on 13 December 1973.   Upon appeal by another party this plan was amended by a decision of the Provincial Agricultural Land Reform Board (Landesagrarsenat) on 25 January 1977. A compensation parcel earlier assigned to the other party was now attributed to the applicants while part of a compensation parcel earlier assigned to the applicants was attributed to the other party. The applicants appealed against this decision to the Supreme Land Reform Board (Oberster Agrarsenat). They submitted that they had accepted to give up lands near the village for land of inferior quality situated farther away since this had led to the creation of a new large complex.   By the Provincial Board's decision this complex had been broken up. However, on 5 April 1978 the Supreme Board rejected the applicants' appeal as unfounded.   It stated, inter alia, that possession of a cellar could be held by another person than the owner of the land above the cellar.   Therefore the attribution of the land under which the applicants had their cellar to another party was unobjectionable.         The applicants then lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) alleging unconstitutionality of the applicable provision of the Provincial Act.   The Constitutional Court instituted proceedings for the review of the constitutionality of this provision (Normenkontrollverfahren) and found on 3 October 1984 that it was unconstitutional (Collection of Constitutional Court Decisions No. 10.176).   As a consequence, the Supreme Board's above decision was quashed by the Constitutional Court on 27 February 1985 (Collection of Constitutional Court Decisions No. 10.360).         On 5 March 1986 the Supreme Board took a new decision on the basis of amended legislation introduced subsequently to the Constitutional Court's above decision of 3 October 1984.   However, it again confirmed the Provincial Board's decision of 25 January 1977, finding that the applicants had thereby received lawful compensation parcels.   It noted in particular that they had contributed 11 complexes of land and in exchange had received 3 complexes. They had no right to receive only two complexes as had been the situation before the Provincial Board's above decision; even with 3 complexes there was still a considerable improvement of the economic structure brought about by the consolidation measures.   The Supreme Board also confirmed the lawfulness of the assignment to another party of land situated just above a cellar of the applicants, denying that this land had to be qualified as land of special value which the authority was required to reassign to the original owner.   Concerning a former parcel of the applicants adjoining the cellar which the applicants claimed should have been qualified as a building plot and therefore also as land of special value to be reassigned to them, the Supreme Board likewise confirmed the allotment to another party, noting that this parcel was in fact outside the area designated for constructions purposes and therefore no land of special value; moreover, the applicants originally had not claimed the reassignment of this land. The Supreme Board further did not find it objectionable that the surface of certain land of special value reassigned to the applicants had been reduced as a result of the regulation of an adjoining rivulet and the creation of common installations.   It finally rejected complaints of the applicants that they had received less valuable agricultural land than that which they had contributed and that the economic unity of their farm with that of another party had been disregarded.   Insofar as the applicants had requested to be informed of an expert opinion prepared by a member of the Board, it was stated that such an expert opinion did not exist as the Board could rely on the special knowledge of its expert members for agronomy and agriculture.         The applicants again complained to the Constitutional Court, invoking their constitutional rights to equality before the law, inviolability of property, and decision of the case by the lawful judge.   They also alleged unconstitutionality of a provision of the Provincial Act. However, on 27 November 1986 the Constitutional Court refused to deal with the complaint, finding that in the light of the case-law it was unlikely that an unconstitutionality of the legislative provision in question could be established, and that the case did not raise specific questions of constitutional law.   As regards a possible violation of non-constitutional rights, the case was referred to the Administrative Court (Verwaltungsgerichtshof).         The latter Court rejected the applicants' complaints on 3 December 1987.   It observed that the applicants' appeal against the Provincial Board's decision of 25 January 1977 had been limited to the new measures ordered by this decision and that it was therefore inadmissible to challenge other measures including those relating to the refusal of reassignment of parcels in the area of the applicants' cellar, reduction of the surface of reassigned land of special value, and assignment of allegedly less valuable agricultural land. Regarding the new measures the Supreme Board had rightly confirmed the lawfulness of the applicants' compensation. Furthermore, there had been no violation of the applicants' procedural rights in that they had been sufficiently informed of the results of the investigation. The participation of the expert members in the Board's decision was not objectionable as it served the purpose of providing the authority with the necessary technical expertise.   In this respect the Administrative Court referred inter alia to the Ettl judgment of 23 April 1987 (Eur. Court H.R., Series A no. 117, p. 3 et seq.).     COMPLAINTS         The applicants allege violations of Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1.         Under Article 6 para. 1 of the Convention they complain that they were not heard within a "reasonable time" as the proceedings lasted 15 years.   They further claim that their right to a "fair hearing" was disregarded in particular concerning the allotment of the land situated above their cellar to another party. In this respect they contest the view that only the specific measures appealed against, but not the global result of the consolidation was at issue in the relevant administrative proceedings.         Under Article 1 of Protocol No. 1 to the Convention the applicants complain primarily of the deprivation of their land situated above the cellar. They further complain that by the provisional transfer of lands, which took place before the adoption of the consolidation plan in 1973, and which was upheld until the final decision, they were wrongly deprived of their original land which then was exploited by other parties, the applicants for this reason being unable to assert their rights appropriately in the subsequent main proceedings.   They claim to have suffered considerable damage as a result.   PROCEEDINGS         The application was introduced on 4 June 1987 and registered on 27 September 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 the merits of the application.         The Government submitted their observations on 7 December 1989 and the applicants replied thereto on 25 January 1990.   An English translation of the Government's observations was submitted on 11 March 1991.   THE LAW   1.     The applicants mainly complain that, in agricultural land consolidation proceedings concerning their property, their civil rights and obligations were not determined "within a reasonable time" 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......"         The applicants argue that the proceedings in question have started on 13 December 1973 when the consolidation plan was issued.         The respondent Government argue that this plan had been accepted by the applicants who only objected to its amendment which had been effected by the Provincial Agricultural Land Reform Board in its decision of 25 January 1977 on appeal by a third party.         The Commission considers that in the appeal proceedings instituted by another party the applicant's "civil rights and obligations" were not in dispute.   The applicants admit that in fact their rights were only affected by the Provincial Agricultural Land Reform Board's decision of 25 January 1977 by which the original consolidation plan was amended and other compensation parcels were assigned to them.   Thus, 11 February 1977, when the applicants appealed against the decision in question, is the starting point of the proceedings in which a dispute over the applicants' alleged civil rights was determined.         These proceedings lasted until 3 December 1987 when the Administrative Court's decision was delivered.   This period included proceedings before the Constitutional Court.         The Commission considers, that in the light of the criteria established by the case law of the Convention organs on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities) and having regard to all the information in its possession, a thorough examination of this complaint is required as to the merits.   2.     The applicants have further alleged a violation of their right to a fair hearing in that the Administrative Court did not in its decision of 3 December 1987 deal with their particular complaint that the assignment to another party of land situated just above their cellar interfered with their right to the peaceful enjoyment of possessions.   However, it has to be noted that the Supreme Land Reform Board stated in this respect in its decision of 5 April 1978 that the right of property relating to the cellar could be separated from the right to property to the parcel under which the cellar was situated. Therefore the attribution of the parcel above the applicant's cellar to other parties was unobjectionable.         This finding apparently meant that the applicants remained the owner of the cellar and it has not been shown by them that this ownership has been put in question.         In any event, the Commission notes that according to the findings of the Administrative Court in its decision 3 December 1987 the applicants appeal had been limited to the new measures ordered by the Provincial Board's decision of 25 January 1977 and that it was therefore inadmissible to challenge other measures including those relating to the original assignment of 13 December 1973 to another party of the parcel above the applicant's cellar.         It can in the circumstances of the present case not be found that this interpretation of the applicant's appeal was arbitrary and violated the applicant's right to a fair hearing within the meaning of Article 6 (Art. 6) of the Convention.         This complaint therefore has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicants have finally alleged a violation of their right to the peaceful enjoyment of their possessions.         The Commission first observes that the applicants have failed to appeal against the allotment of compensation parcels effected in application of the consolidation plan issued on 13 December 1973.   The question therefore arises whether they have exhausted domestic remedies in this respect.   In any event, it has to be noted that according to the finding of the Supreme Land Reform Board in its decision of 5 April 1978 the applicants had received adequate compensation parcels in the consolidation proceedings and their property right in regard to the cellar in question has not been affected by the attribution of the land above the cellar to another party.   The applicants have neither shown that contrary to this finding the right to the peaceful enjoyment of possession of the cellar has been contested by public authorities or private parties nor that globally the land attributed to them was considerably less valuable than their prior parcels.         There is consequently no appearance of a violation of Article 1 of Protocol No. 1 (P1-1).         It follows that this part of the application has likewise to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES ADMISSIBLE, without prejudging the merits, the complaint       relating to the length of the proceedings.         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)