CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 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 }                        AS TO THE ADMISSIBILITY OF                       Application No. 19166/91                     by Josef, Ingeborg and Anna POISS                     against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 6 April 1994, 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                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             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 26 July 1991 by against Josef, Ingeborg and Anna POISS and registered on 6 December 1991 under file No. 19166/91;        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 and farmers in Palterndorf.   They are represented by Mr. E. Proksch, a lawyer practising in Vienna.   All three applicants belong to the Poiss family.        It follows from their submissions and the documents submitted that the applicants were parties in land consolidation proceedings.   The first land consolidation plan concerning the applicants' community had been issued by the Lower Austrian District Agricultural Authority (Agrarbezirksbehörde) on 1 September 1965.   The applicants, Leopold and Barbara Poiss lodged appeals which were to no avail.   However, on 1 October 1975 a request for a retrial was granted by the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme Board").        Eventually, by decision of 6 March 1985, the Supreme Board amended the original consolidation plan in favour of the applicants, Leopold and Barbara Poiss but rejected their request for the payment of compensation.        All the applicants appealed to the Administrative Court which on 15 July 1986 quashed the Supreme Board's decision as regards the land in compensation, on the grounds of procedural irregularities.   The claim for financial compensation was however dismissed by the Administrative Court for want of any statutory basis.        The Poiss family then brought an application before the European Commission of Human Rights which was eventually decided by the European Court of Human Rights which held in its judgment of 23 April 1987 (Series A, No. 117, p. 86 et. seq.) that there had been a breach of Article 6 para. 1 of the Convention as regards observance of the "reasonable time" requirement.   It further held that there had been a breach of Article 1 of Protocol No. 1.   In the latter respect the Court took into consideration that nearly twenty four years had already lapsed since the provisional transfer of compensation parcels without the applicants having received under a final consolidation plan the compensation in land provided for by law.   The Court further considered that the applicants did not have any possibility of obtaining compensation for the loss they might have sustained on account of the forced exchange of their land for other inferior land pursuant to the provisional transfers.   It concluded that under these particular circumstances the necessary balance between protection of the right of property and the requirements of the public interest was lacking.        Insofar as the applicants had criticised the fact that the hearings before the Land Reform Boards were not held in public and contended that the boards were not independent and impartial, the European Court of Human Rights pointed out that these were new complaints which had not been raised as such before the Commission.   Consequently the Court considered that it had no jurisdiction to entertain these complaints (par. 49 of the judgment of 23 April 1987).        In the domestic proceedings the Supreme Board on 4 May 1988 confirmed the earlier consolidation measures and drew up a new consolidation plan.   It dismissed as being unfounded the applicant family's claim that the compensation parcels allotted to them were insufficient and the compensation therefore unlawful.        Insofar as the applicants had relied on an expert opinion by expert B., the Supreme Board pointed out that the expert had visited the sites in question ten years after the provisional transfer.   His opinion on the original value could only therefore be based on indications he received from the applicants, i.e. the parties.   Examining in detail the different compensation parcels in question and certain points raised in the expert opinion, the Supreme Board came to the conclusion that the complainants had received adequate compensation both as regards size and value which was therefore unobjectionable.        Insofar as the applicants had alleged that part of their former property had been of special value in that the land in question was constructible, the Supreme Board relied on an expert estimation on the market values of the compensation parcels as compared to the applicant's prior property and pointed out that the estimated value of the compensation parcels was even higher than those of the previous properties.        Insofar as a private expert of the applicants came to a different conclusion the Board stated that this expert had not taken into account that the parcels in question had for decades been used as farm land.   It also pointed out that the official expert opinion proved to be correct as the estimated values corresponded to the prices obtained for the sale of comparable parcels.   The Board concluded that for their constructible land the applicants had received constructible compensation parcels of the same value.        Insofar as the applicants had alleged that two of the previous parcels had to be regarded as constructible in view of their proximity to the community, the Board stated that there were no concrete indications that these parcels would in the near future become constructible.        Finally, the Supreme Board rejected the applicant's complaint that the compensation parcels had been arbitrarily distributed among the Poiss family members by the authorities. The Board considered that, when attributing compensation parcels, the authorities had correctly taken into account the pre-existing proprietorial situation.   Lastly, the Supreme Board stated that it had seen no reason to invite the expert to attend the oral hearing and to proceed to a visit of the properties in question. It added that in any event, according to constant jurisprudence, the parties did not have a right to put questions to the expert and the applicable procedural law did not provide for a hearing on the spot (Lokalaugenschein).        The applicants then lodged a constitutional complaint which, however, the Constitutional Court (Verfassungsgerichtshof) refused to admit for a decision on the merits.   It is stated in its decision of 28 November 1988 that insofar as the applicants' alleged violations of their property right, of their right to equal treatment and to a fair trial before an impartial tribunal, they did not raise any issues of constitutional law, the alleged violations being the result of the alleged misapplication of ordinary law.   Insofar as violations of Article 6 of the Convention had been alleged, the court referred to its own case- law and to the Ettl judgment of 23 April 1987 of the European Court of Human Rights from which it follows that the complaints were clearly unfounded.        The applicants also appealed to the Administrative Court (Verwaltungsgerichtshof) which dismissed their appeal on 4 December 1990 (served on 31 January 1991) as being unfounded. It is stated in the Administrative Court's decision that the procedural rules for administrative proceedings did not provide for a right of parties to put questions to experts.        Insofar as the applicants had complained that the court- appointed expert had not sufficiently taken into account the quality of the soil of the real estate in question, the court pointed out that under the applicable law the compensation parcels had to be equivalent (gleichartig) to their prior property.   The court replied that "equivalent" did not mean that the parcels were equal or homogeneous in every respect.   They only had to be equal with regard to the specific value.   However, in the prior proceedings the applicants had only alleged that the compensation parcels were less valuable and less well situated. Also in their complaint to the Constitutional Court they had alleged that the location and the extension of the compensation parcel were not equal to the prior property.   However, so the Administrative Court pointed out, the compensation parcels were all situated in the vicinity of the same road and only some hundred meters away from the prior property.   It was also uncontested that the compensation parcels constituted viable constructible plots of a size of 3,715 sq. meters while the comparable constructible former property was of a size of 3,360 sq. meters.   Therefore the applicants' complaints in this respect were considered to be unfounded.        The Administrative Court furthermore stated that the applicants had not indicated any reasons for the motion to have another hearing on the spot and that there had in fact been no necessity for such further taking of evidence.        In addition to the argument that the applicant had received as many square meters of real property as they had been obliged to give away, the court pointed out that the fact that part of the applicants' prior property was of special value because of its constructibility had been taken into account twice by the authorities when fixing the compensation.        Insofar as the applicants had complained that the community and other parties to the consolidation proceedings had not been heard, it is stated in the decision that possible violations of the rights of others were irrelevant in the present proceedings. Furthermore the legality of the compensation in the applicants' case did not depend on   the question whether or not other parties had received lawful compensation.   In any event, the consolidation plan and the manner in which it affected other parties was accessible to or known by the applicants.        Finally the court stated that the attribution of compensation parcels only to some members of the Poiss family was unobjectionable for the reasons already stated in the decision of the Supreme Board.   COMPLAINTS        The applicants submit that the Supreme Board, having itself established the consolidation plan, could no longer be considered as an impartial tribunal with regard to the question of whether or not this consolidation plan was lawful.   Furthermore, the applicants complain that no other parties either in the community or other farm owners were heard in their proceedings.   They therefore consider that they did not have a fair trial before an impartial tribunal and these shortcomings were not remedied by the fact that they could appeal to an Administrative Court.        They also allege a violation of Article 1 of Protocol No. 1 arguing that they did not receive adequate compensation parcels in the land consolidation proceedings.   THE LAW   1.    The applicants have invoked Article 6 (Art. 6) of the Convention arguing that they did not have access to an independent tribunal which could have examined their claim.        However, even assuming that Article 6 (Art. 6) applies and further assuming that the present complaint has been brought before the Commission within the six-months time-limit (Article 26) (Art. 26), the Commission notes that the applicants could and in fact did complain of the Supreme Board's decision to the Administrative Court the impartiality of which is not in question.   Further it has not been shown in the present case that there were factual issues before the Administrative Court which that court was prevented from examining (cf. Eur. Court H.R. Ettl judgment of 23 April 1987, Series A, No. 117, p. 86 et. seq. para. 34).   Consequently it cannot be found that the Administrative Court was in any way limited in its competence to examine the issues raised by the applicants.   The Administrative Court found that the applicants' complaints were unfounded. There is nothing to indicate that this finding is inconsistent with any provisions of the Austrian legal order or arbitrary for any other reason.        Insofar as the applicants complain that other persons involved in the consolidation proceedings could not participate in the proceedings relating to their appeals it has to be noted that there is nothing to show that the applicants were thereby prejudiced insofar as procedural guarantees are in question.        Consequently there is, in the particular circumstances of the case, no appearance of a violation of Article 6 (Art. 6) of the Convention and to this extent the application has therefore to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants have further complained that their right to the peaceful enjoyment of possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1), was violated, alleging that the compensation parcels allocated to them were not adequate.        Article 1 of Protocol No.1 (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.        The Commission considers that the measure in question concerned the regulation of the use of the applicants' property. It first notes that the applicants have not contested that the measure was taken on the basis of domestic law.   The Commission further considers that the consolidation of agricultural land is in the general interest.   Finally, as far as the question of a fair balance between the general interest of the community and the requirements of the protection of the individual's fundamental rights is concerned (cf. Eur. Court H.R., Sporrong and Lönnroth judgment of 24 September 1982, Series A No. 52, p. 26, para. 69), the Commission notes that in the applicants' case the consolidation plan was eventually amended in favour of the applicants Leopold and Barbara Poiss by the Supreme Board on 6 March 1985 but the applicants' further appeals were rejected as being unfounded.   The Supreme Board and the Administrative Court carefully examined the arguments advanced by the applicants and also took into consideration the conclusion of the private expert opinion submitted by them.   However, they found that the private expert based his opinion mainly on indications received from the applicants.   They also indicated reasons why they relied on the official expert opinion and not that of the private expert.   It has not been shown that these reasons are unwarranted and in any way incompatible with the evidence available to the domestic courts.   There is consequently nothing to show that attribution of compensation parcels and the situation created thereby constituted a measure imposing an intolerable or excessive burden on the applicants.        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 THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)