CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 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. 15508/89                     by Ludwig and Maria PRÖTSCH                     against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 31 August 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 12 June 1989 by Ludwig and Maria PRÖTSCH against Austria and registered on 15 September 1989 under file No. 15508/89;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to :   -     reports provided for in Rule 47 of the Rules of Procedure of the      Commission;   -     the observations submitted by the respondent Government on 25 May      1992 and the observations in reply submitted by the applicant on      9 July 1992;        Having deliberated;        Decides as follows:     THE FACTS        The facts, as submitted by the applicants, may be summarised as follows :        The applicants, Austrian citizens who own a farm in Wufing, Upper Austria, are represented by Mr. Erich Proksch, a lawyer practising in Vienna. They complain of the length of agricultural proceedings and the impossibility of obtaining compensation in respect of temporary disadvantages which they allegedly suffered in connection with agricultural land consolidation proceedings (Zusammenlegungsverfahren) under the Upper Austrian Agricultural Land Planning Act (Flurverfassungsgesetz).        The proceedings were apparently instituted ex officio in 1979. In 1979 and 1980 the Gmunden Agricultural District Authority (Agrarbezirksbehörde) ordered the provisional transfer (vorläufige Übergabe) of the compensation parcels.        The consolidation plan (Zusammenlegungsplan) was issued in October 1983.        On 24 May 1984 the Provincial Land Reform Board (Landes- agrarsenat), on the applicants' appeal, quashed part of the consolidation plan, dismissed the appeal for the remainder and referred the case back to the Agricultural District Authority.   The applicants appealed against this decision.        On 3 April 1985 the Supreme Land Reform Board (Oberster Agrarsenat) quashed the decision of 24 May 1984 and referred the case back to the Provincial Land Reform Board following the applicants' argument that the appeal could not have been partly dismissed, as the compensation of the applicants was an indivisible whole.        On 11 July 1985 the Provincial Land Reform Board set the consolidation plan aside on the ground that the compensatory parcels did not fully reach the quality of the former parcels and that therefore the compensation was not lawful, and referred the case back to the District Authority.        In January 1986 the Agricultural District Authority issued a new consolidation plan.   The applicants appealed against this plan and subsequently lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against the further decision of the Provincial Land Reform Board.   The Constitutional Court refused to deal with the complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof) which decided to discontinue the proceedings on 23 February 1988.        On 26 January 1988 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 had suffered a loss of crops in the amount of approximately 210,000 AS between 1980 and 1987.        On 22 February 1988 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.   According to the decision the agricultural authorities were only competent to decide on facts concerning the implementation of the consolidation.        On 7 July 1988 the Provincial Land Reform Board dismissed the applicants' appeal on the ground that there was neither a legal nor a factual basis for a claim for compensation in the present case.        The applicants challenged this decision before the Administrative Court alleging that the authorities had the duty to apply the provisions of civil law.   The Administrative Court, however, found that the authorities were not competent to decide on compensation claims of civil law and dismissed the complaint on 27 September 1988.        The applicants also complained to the Constitutional Court invoking their constitutional rights to the inviolability of property and to a decision by the lawful judge. However, on 28 February 1989 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.   COMPLAINTS   1.    The applicants complain that Article 1 of Protocol No. 1 to the Convention has been violated in that they are unable to obtain compensation for the damage caused to them by the assignment of insufficient compensation parcels at the provisional transfer in 1979/80.   They had immediately complained of the situation created by this measure which, however, remained in force until the conclusion of the consolidation proceedings in 1987, causing them important losses of crops during seven years.   They deny any responsibility for the delay of the relevant proceedings and invoke the cases of Erkner-Hofauer and Poiss where the Convention organs found a breach of Article 1 of Protocol No. 1 in a similar situation (cf. Eur. Court H.R., Judgments of 23 April 1987, Series A No. 117).   2.    The applicants further complain that Article 6 of the Convention has been violated in that the proceedings before the agricultural authorities and the Courts of public law were not conducted in conformity with the requirements of this provision; in their view the organisation and composition of the agricultural authorities, in particular the Land Reform Boards, did not meet the requirements of a tribunal within the meaning of Article 6.   They allege in particular that the Land Reform Boards, when deciding on claims for compensation arising from the assignation of insufficient parcels of the provisional transfer of land, are not impartial because they are themselves responsible for the decision by which a damage was caused to the private party concerned.   THE LAW   1.       The applicants complain that by a provisional transfer of lands ordered in connection with agricultural land consolidation proceedings in 1979 and 1980 they received insufficient compensation parcels and that this situation was maintained for seven years until 1987 when as a result of the final decision in the consolidation proceedings they got lawful compensation parcels.   They claim that the situation created by the provisional transfer, which could neither be altered nor redressed by the adjudication of financial compensation, amounted to an unjustified interference with their property rights as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention.           This provision reads as follows:   "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."           In the Erkner/Hofauer and Poiss judgments of 23 April 1987 (Series A no. 117), the European Court of Human Rights held that a provisional transfer of lands is a measure interfering with the right of property which falls to be considered under the first sentence of the first paragraph of Article 1 (Art. 1).   It will be compatible with this provision only if a proper balance is struck between the demands of the community's general interest and the requirement of protecting the property rights of the individual.   The Court observed that the Austrian system of provisional transfers of land suffered from a degree of inflexibility in that, before the entry into force of a consolidation plan, it provided 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.   In the cases then before the Court, where the restrictions had lasted about sixteen and twenty-four years respectively, it was found that there had been no proper balance between the conflicting interests involved and that the applicants in those cases had been made to bear a disproportionate burden incompatible with Article 1 of the Protocol (P1-1) (cf. Erkner and Hofauer judgment, loc. cit., p. 64 et seq., paras. 71-80; Poiss judgment, loc. cit., p. 107 et seq., paras. 61-70).           The respondent Government point out that in the present case, the restriction of the applicants' property right caused by the provisional transfer of lands was maintained only for about six years, which is considerably shorter than in the above-mentioned cases. They also consider that the applicant did receive adequate compensation parcels and did not have to bear a disproportionate burden.        The applicants maintain that they sustained important losses which in their opinion are proven by the fact that eventually the consolidation plan was set aside on the ground that their compensatory parcels did not fully reach the quality of the former ones.        In this respect the Commission recalls the Erkner/Hofauer case where it stated inter alia the following (Application No. 9616/81, Comm. Rep. 24.1.86, para. 131):           "The Commission considers that it can in principle be justified in the public interest that by the operation of the provisional transfer of lands, as conceived by the domestic legislation, the individual has to sustain a temporary disadvantage if this disadvantage is not wholly disproportionate to the legitimate aim generally pursued by this measure.   There is no appearance that such a measure is in itself contrary to Article 1 of the Protocol (P1-1)."           On the other hand the Commission has recently declared admissible an application where the same type of restriction was maintained for eleven years (No. 12650/87, Dec. 31.5.91, unpublished).           Although the period in question is of only seven years the present case is still comparable to the above case and the Commission therefore finds that the complaint under Article 1 Protocol No. 1 (P1-1) raises complex and difficult issues which require to be determined as to the merits. It follows that the applicants' complaint cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   2.       The applicants further complain of the organisation of the agricultural authorities which dealt with their case, claiming that it fell short of the requirements of Article 6 (Art. 6) of the Convention. In particular they allege that due to the participation of a majority of civil servants, the disproportionate influence of the specialised civil servants who also assume the functions of experts, and the lack of a true adversarial character of the proceedings, the competent Land Reform Boards cannot be regarded as independent and impartial tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission notes that the applicants' above allegations are essentially the same as those submitted by the applicant in the Ettl case (Eur. Court H.R., judgment of 23 April 1987, Series A No. 117).   The present applicants give particular weight to the status and functions of the expert civil servant members of the Land Reform Boards; but they have failed to indicate any element which could be held to justify a distinction of the present case from the Ettl case.   In view of the Court's finding in that case concerning the general organisation and procedure of the Land Reform Boards, these Boards must in the present case be considered to fulfil the requirements of independent and impartial tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           This part of the application must accordingly be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicants furthermore complain that the land reform authorities, when deciding on claims for compensation, were not "impartial" within the meaning of Article 6 (Art. 6) of the Convention.           The Commission notes, that in the present case the Land Reform Boards declined jurisdiction to decide on the applicants' compensation claim.   It follows that the authorities in fact did not decide on the merits of the compensation claim in question.   Therefore an issue of impartiality as alleged by the applicants cannot arise. This part of the application is accordingly also 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 of the case, the      applicants' complaint of unjustified interference with their right      to the peaceful enjoyment of possessions.        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                    (A. WEITZEL)