CEDH · CASELAW;REPORTS;ENG — 11 janvier 1994

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 12650/87                              Wieninger                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 11 January 1994)   TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1 - 17). . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2 - 4). . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5 - 12) . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 13   - 17) . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 18 - 26) . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 27   - 39). . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 27). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 28). . . . . . . . . . . . . . . . . . . . .5        C.    Article 1 of the First Protocol           (paras. 29 - 38). . . . . . . . . . . . . . . . . .5        CONCLUSION      (para.   39). . . . . . . . . . . . . . . . . . . . . . .7   APPENDIX I      : HISTORY OF THE PROCEEDINGS . . . . . . . . .8   APPENDIX II     : DECISION ON THE ADMISSIBILITY   . . . . . . .9   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicants are Austrian citizens, the first applicant born in Weitersfeld and the second applicant in Rasingdorf, and resident in Weitersfeld.   They were represented before the Commission by Mr. Erich Proksch.   3.    The application is directed against Austria.   The respondent Government were first represented by their then agent, Ambassador Helmut Türk, Deputy Secretary General and Legal Counsel of the Federal Ministry of Foreign Affairs and subsequently by Mr. Franz Cede.   4.    The case concerns the impossibility of the applicants to obtain compensation in respect of alleged temporary disadvantages suffered in connection with Agricultural Land Consolidation proceedings under the lower Austrian Agricultural Land-Planning Act (Flurverfassungesetz). The applicants invoke Article 1 of Protcol No. 1 to the Convention.   B.    The proceedings   5.    The application was introduced on 12 December 1986 and registered on 22 January 1987.   6.    On 11 July 1989 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 20 November 1989 after one extension of the time-limit fixed for this purpose.   The applicants replied on 3 January 1990 and 11 February 1991 after one extension of the time-limit.   8.    The case was referred to the Second Chamber on 8 December 1990.   9.    On 31 May 1991 the Commission (Second Chamber) declared admissible the applicant's complaint under Article 1 of the First Protocol.   It declared inadmissible the remainder of the application.   10.   The case was subsequently transferred to the First Chamber.   11.   The text of the Commission's decision on admissibility was sent to the parties on 10 June 1991 and they were invited to submit such further information or observations on the merits as they wished.   12.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present report   13.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA   14.   The text of this Report was adopted on 11 January 1994 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        i)    to establish the facts, and        ii)   to state an opinion as to whether the facts found disclose      a breach by the State concerned of its obligations under the      Convention.   16.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   17.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   18.   The applicants, Austrian citizens who own a farm at Weitersfeld, Lower Austria, are represented by Rechtsanwalt Dr. Erich Proksh of Vienna.   They complain of the impossibility of obtaining compensation in respect of temporary disadvantages which they allegedly suffered in connection with agricultural land consolidation proceedings (Zusammenlegungsverfahren) under the Lower Austrian Agricultural Land Planning Act   (Flurverfassungsgesetz).   19.   The proceedings in question were instituted ex officio in January 1969. In October 1971 the Agricultural District Authority (Agrarbezirksbehörde) ordered the provisional transfer (vorläufige Übergabe) of the compensation parcels.   At the relevant time there was no possibility of appealing against the provisional transfer.   The applicants, who immediately claimed that their compensation parcels were insufficient, thus could only assert their claims in the main proceedings.   20.   The consolidation plan (Zusammenlegungsplan) was issued in April 1972 in conformity with the situation created by the provisional transfer.   The applicants' appeals against this plan were eventually successful.   On 6 September 1978 the Supreme Land Reform Board (Oberster Agrarsenat) quashed this plan insofar as it concerned the applicants' compensation parcels finding that they were insufficient. The Agricultural District Authority adopted a new plan on 22 May 1980 which was amended by decisions of the Provincial Land Reform Board (Landesagrarsenat) of 24 November and 23 December 1981.   The applicants thereby received, with effect from autumn 1982, compensation parcels which they considered as satisfactory.   21.   In December 1979 the applicants applied for financial compensation in respect of the damages allegedly caused to them by the fact that they had received insufficient compensation parcels by the provisional transfer which at that time was still in force.   They submitted an expert opinion according to which they suffered an annual loss of crops in the amount of approximately 50,000 AS.   In its above decision of 22 May 1980 the Agricultural District Authority reserved this issue for a separate decision.   On 24 March 1982 the applicants requested an adjournment of the proceedings in this respect.   On 10 June 1985 they applied for the resumption of the proceedings, indicating that they now claimed compensation in the total amount of 597,927 AS.   22.   On 12 June 1985 the Agricultural District Authority rejected the applicants' claim as being inadmissible.   It observed that the Agricultural Land Planning Act did not provide for any compensation in respect of damage caused by the fact that there was a long period between the provisional transfer and the assignment of lawful compensation parcels by the final consolidation plan.   A compensation claim could only arise if the authority had been at fault (schuldhaft) and awarded unlawful compensation parcels at the stage of provisional transfer.   However, such a claim did not fall within the jurisdiction of the agricultural authorities but had to be asserted in proceedings under the Official Liability Act (Amtshaftungsgesetz).   23.   This decision was confirmed on appeal by a decision of the Provincial Land Reform Board of 10 December 1985.   It referred to a decision of the Supreme Land Reform Board of 6 March 1985, according to which there was no legal basis for a claim such as the one of the applicants.   24.   The applicants challenged this decision before the Constitutional Court (Verfassungsgerichtshof) invoking their constitutional rights to the inviolability of property and to a decision by the lawful judge. However, on 7 June 1986 the Constitutional Court, in summary proceedings under Article 144 para. 2 of the Federal Constitution, refused to deal with these complaints, holding that in the light of its constant case-law they did not show any prospects of success.   25.   The applicants also complained to the Administrative Court (Verwaltungsgerichtshof) alleging the unlawfulness of the Provincial Board's above decision and suggesting that the lack of legal provisions on compensation should be brought before the Constitutional Court in proceedings for the review of the constitutionality of legislation. The Administrative Court rejected the complaint on 30 September 1986. It considered that the applicants' claim did not come under the provisions of the Provincial Land Planning Act concerning financial compensation for certain temporary damages and that the agricultural authorities were not competent to deal with other compensation claims, including claims based on Section 365 of the Civil Code which the applicants had invoked in this respect.   The Administrative Court had no doubts concerning the constitutionality of the applicable legal provisions and therefore saw no necessity to refer this question to the Constitutional Court.   26.   The applicants also tried to assert their claim in official liability proceedings.   Their claim was, however, rejected by the Provincial Governor on 29 August 1985.   The applicants thereupon lodged an action with the Regional Civil Court (Landesgericht für Zivilrechtssachen) of Vienna on 1 October 1985.   In his reply of 29 October 1985 the Provincial Governor submitted that the official liability proceedings were subsidiary to the above administrative proceedings which, at that time, were still pending.   The liability proceedings were then stayed by a mutual agreement of the parties. They were resumed after the Administrative Court had handed down its above decision of 30 September 1986.   A hearing took place on 4 December 1986.   The Court decided to obtain expert evidence and ordered the parties to advance the costs for the expert.   They did not comply and therefore the proceedings remained suspended.   According to the applicant the proceedings will remain suspended in order to await the outcome of the present application proceedings.   III.   OPINION OF THE COMMISSION   A.    Complaint declared admissible   27.   The Commission declared admissible the applicants' complaint of unjustified interference with their right to the peaceful enjoyment of their possessions.   B.    Point at issue        The issue to be determined is:   28.   Whether the applicants' right to the peaceful enjoyment of possessions as guaranteed by Article 1 of the First Protocol (P1-1) was violated in that they were unable to obtain compensation for the alleged loss of yield from insufficient compensation parcels which they were provisionally attributed during the eleven years of consolidation proceedings.   C.    Article 1 of the First Protocol (P1-1)   29.   Article 1 of the First Protocol (P1-1) provides:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law.        The preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."   30.   The applicants allege that the compensation parcels allotted to them in 1971 caused them annual losses of some AS 50,000 per year.   As the situation complained of lasted eleven years, their total loss allegedly amounts to AS 600,000.   This damage, so they submit, exclusively follows from the fact that their compensation parcels attributed to them are less valuable and has nothing to do with the manner in which the compensation parcels are being cultivated.   31.   The respondent Government argue that denying financial compensation for the disadvantages alleged by the applicants did not amount to a violation of Article 1 of the First Protocol (P1-1).   They first submit that the provisional transfer creates a condition enabling all parties involved to test the new distribution of parcels and, in doing so, makes it possible for the experience gained to be taken into account when the final consolidation plan is drawn up.   Thus, it is an adequate and often necessary means to attain the goals of agricultural consolidation, the new distribution and development of agricultural and forestry holdings as well as to establish the legal and economic basis of agricultural and forestry enterprises according to the principles of modern economics and business management.   The adjusted agricultural structure created in such a way finally benefitted all parties involved.   The advantages gained from this improvement had to be rated much higher than the disadvantages experienced during the proceedings. They furthermore submit that in proceedings involving a variety of parties it would be impossible to quantify the advantages or disadvantages for each individual party.   Also one would have to bear in mind that in cases where the competent authorities eventually find the initial compensation unlawful and change it accordingly, it would be difficult to determine a possible disadvantage for the reason that, as a rule, it is hardly possible or not possible at all to ascertain the reasons for the initial assessment as no written documents are available.   The economic yield also depended on the individual entrepreneur.   In view of the foregoing considerations, the respondent Government concludes that the advantages connected with the legal measure of provisional transfer would seem to be substantially greater than the temporary disadvantages some individual parties concerned may have to suffer.   Finally, it is pointed out that the provisional transfer can become effective only if at least two-thirds of the parties concerned agree to it.   32.   The Commission first notes that in the present case the draft consolidation plan on which the provisional transfer in question was based was elaborated in 1971 and adopted in 1972.   The provisional transfer was ordered in October 1971.   The plan was then quashed on 6 September 1978 but the applicants did not obtain other compensation parcels which they considered as satisfactory before autumn 1982.   33.   The applicants consequently had to content themselves for eleven years with compensation parcels which were apparently insufficient as they eventually were attributed other compensation of parcels.   The amount of damage sustained by the applicants is in dispute between the parties.   This issue can be left undetermined.   What is relevant in the present case is the fact that the applicants cannot claim compensation under Austrian law in respect of the alleged losses incurred during the consolidation proceedings.   34.   The European Court of Human Rights has already recognised in the Erckner and Hofauer judgment and the Poiss judgment, both of 23 April 1986 (Series A no. 117) that the system of provisional land transfers is not as such contrary to Article 1 (P1-1) as long as no disproportionate burden is placed on the individual land-owner.   35.   The Court has considered such transfers under the first paragraph of Article 1 (P1-1-1).   It stated inter alia:        "In authorising a provisional transfer at an early stage of the      consolidation process, its (the legislator's) intention is to      ensure that the land in question can be continuously and      economically farmed in the interest of the landowners generally      and of the communities.   Furthermore, although the applicants      lost their land in consequence of the transfer decided on in      1970, they received other land in lieu, even if they are not      satisfied with it.   The applicable system, however, suffers from      a degree of inflexibility: before the entry into force of a      consolidation plan, it provides no means of altering the position      of landowners or of compensating them for damage they may have      sustained in the time up to the final award of the statutory      compensation in land (loc. cit., pg. 66 para. 78 and pg. 109      para. 68)."   36.   The Court then concluded that the necessary balance between protection of the right of property and the requirement of the public interest was lacking.   37.   It is true that in the cases referred to the proceedings lasted considerably longer than in the present case (and had not even been terminated at the time of the Court's judgment).   However, even a period of eleven years, as in the present case, is substantial.   The Commission recognises that it is the aim of the legislation in question that benefit shall accrue to all parties, but the disadvantages resulting from a wrong provisional transfer affect only some while others may temporarily have unjustified advantages.   Therefore, the long-term benefit which each land-owner may possibly draw from the reallocation of land is irrelevant in the context of the present complaint.   38.   Consequently the very impossibility for the applicants, who may have been prejudiced by reason of the length of the land consolidation proceedings to bring an action for compensation, amounts, in the Commission's opinion, to a violation of the right to peaceful enjoyment of possessions within the meaning of Article 1 of the First Protocol (P1-1), in that an individual and excessive burden is thereby imposed on such owners.        CONCLUSION   39.   The Commission concludes, unanimously that in the present case there has been a violation of Article 1 of the First Protocol (P1-1) to the Convention.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                           (A. WEITZEL)                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                           Item _________________________________________________________________   12 December 1986               Introduction of the application   22 January 1987                Registration of the application   Examination of Admissibility   11 July 1989                   Decision of the Commission to invite                               the Government to submit observations                               on the admissibility and merits of                               the application   20 November 1989               Government's observations   3 January 1990                 Applicants' observations in reply   8 December 1990                Decision to refer the application to                               a Chamber   11 February 1993               Applicants' additional observations                               in reply   31 May 1991                    Commission's (Second Chamber)                               decision on admissibility   Examination of the merits   2 December 1992                Commission's consideration with a                               view to friendly settlement   6 April 1993                   Consideration of state of                               proceedings   7 September 1993               Consideration of state of                               proceedings   11 January 1994                Commission's (First Chamber)                               deliberations on the merits, final                               vote and adoption of the Report