CEDH · CASELAW;REPORTS;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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 15506/89                        A., E., M. and H. P.                               against                               Austria                      REPORT OF THE COMMISSION                     (adopted on 31 August 1994)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-48) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 49-69) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaint declared admissible           (para. 49). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 50). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 6 para. 1 of the Convention           (paras. 51-59). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 60). . . . . . . . . . . . . . . . . . . . .8        D.    As regards Article 1 of Protocol No. 1 to the           Convention           (paras. 61-68). . . . . . . . . . . . . . . . . . .9             CONCLUSION           (para. 69). . . . . . . . . . . . . . . . . . . . 10   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 11   APPENDIX II : DECISION OF THE COMMISSION AS TO THE               ADMISSIBILITY OF THE APPLICATION. . . . . . . 12   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, born in Stegersbach and resident in Stegersbach, Burgenland.   They were represented before the Commission by Mr. Erich Proksch.   3.    The application is directed against Austria.   The respondent Government were represented by Mr. F. Cede, Deputy Secretary General and Legal Counsel of the Austrian Federal Ministry of Foreign Affairs.   4.    The case concerns agricultural land consolidation proceedings. The proceedings are still pending and the applicants complain of their length and the negative effect on their property situation.   They invoke Article 6 para. 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.   B.    The proceedings   5.    The application was introduced on 4 July 1989 and registered on 15 September 1989.   6.    On 7 October 1991 the Commission (First Chamber) 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 the admissibility and merits of the applicants' complaints under Article 6 para. 1 of the Convention and Article 1 Protocol No. 1 to the Convention.   7.    The Government's observations were submitted on 19 February 1992 after extension of the time-limit fixed for this purpose.   The applicants replied on 25 March 1992.   8.    On 30 June 1993 the Commission declared the application admissible without prejudging the merits of the complaint relating to the length of the domestic proceedings and the complaint about the alleged violation of the applicants' right to the peaceful enjoyment of possessions.   It declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 12 August 1993 and they were invited to submit   a proposal for a friendly settlement.   10.   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   11.   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                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV   12.   The text of this Report was adopted on 31 August 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   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.   14.   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.   15.   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   16.   The applicants, Austrian citizens, own a farm at Stegersbach, Burgenland.   They were initially represented by Mr. Erich Proksch, a lawyer practising in Vienna but withdrew the power of attorney in the course of the proceedings without appointing another counsel.   17.   The applicants' farm is involved in agricultural land consolidation proceedings (Zusammenlegungsverfahren) under the Agricultural Land Planning Act (Flurverfassungsgesetz) of Burgenland.   18.   The proceedings in question were ordered ex officio on 24 July 1961 by the Agricultural Authority of first instance (Agrarbehörde 1. Instanz) established at the Provincial Government (Landesregierung).   In a hearing on 2 March 1964 the committee representing the parties in the proceedings (Ausschuß der Parteien) did not raise any objections against the projected roads and drains. However, on 5 March 1964 the applicants' parents, who owned the farm at that time, raised objections against a road projected directly behind their house and proposed to relocate it elsewhere.   The operational director in the proceedings (Operationsleiter), however, proposed to carry out the road project as planned.   19.   On 7 April 1964, the Agricultural Authority of first instance determined the state of occupation of land (Besitzstand) and the valuation schedule (Bewertungsplan). Between 28 April and 12 May 1964 all parties were given notice of the state of occupation and the valuation schedule.   20.   On 19 May 1964 an "appeal" against the state of occupation of land and the valuation schedule introduced by the applicants' parents reached the Agricultural Authority of first instance. However, in this "appeal" the applicants' parents raised only objections against the above-mentioned road.   By letter of 30 June 1964 the Provincial Land Reform Board (Landesagrarsenat) informed the applicants' parents that their submissions did not constitute an appeal and would be dealt with as a mere suggestion to the operational director.   21.   On 16 October 1964 the Agricultural Authority of first instance ordered the provisional transfer of the compensatory parcels according to the draft consolidation plan.   22.   On 15 September 1964, 13 October and 24 November 1965 and 22 April 1966 the applicants and their mother (the father had died in the meantime) raised objections against the planning of a drain alongside their compensatory parcels and a possible granting of a building-permit on another party's compensatory parcel. The authority informed the applicants that their objections could not be dealt with before the consolidation plan was issued.   23.   On 24 August 1967 the Provincial Land Reform Board granted a building-permit for a sawmill on the other party's compensatory parcel.   24.   Subsequently, the first and the fourth applicant lodged a complaint against the decision of 16 October 1964 which had not been communicated to them as the heirs before 19 October 1967 with the Constitutional Court (Verfassungsgerichtshof).   On 26 June 1968 the Constitutional Court dismissed the complaint and referred it to the Administrative Court (Verwaltungsgerichtshof) which discontinued the proceedings on 13 December 1968 as the applicants had not remedied defects in the complaint.   25.   On 31 October 1969 the consolidation plan (Zusammenlegungs-Plan) was issued.   26.   On 15 December 1969 the applicants and their mother appealed against this decision, claiming inter alia that some of their parcels had been included in the consolidation proceedings contrary to the law. Moreover they claimed that the result of the proceedings was incompatible with the requirements of the land reform legislation.   27.   On 12 March 1971 the Provincial Land Reform Board dismissed the appeal.   This decision was confirmed by the Supreme Land Reform Board (Oberster Agrarsenat) on 7 March 1973.   28.   On 19 March 1974 the Constitutional Court quashed the decision of the Supreme Land Reform Board on the ground that it had not been competent to decide on the appeal.   According to an amendment of the relevant legislation the Provincial Land Reform Board's decision of 12 March 1971 had to be regarded as the final decision. The applicants then lodged a complaint against the latter decision with the Constitutional Court.   29.   On 4 December 1974 the Constitutional Court quashed the decision of 12 March 1971 and the Provincial Land Reform Board was accordingly required again to determine the applicant's appeal against the first instance consolidation plan of 31 October 1969.   30.   On 8 April 1976 the Provincial Land Reform Board inspected the land consolidation area.   31.   On 10 June 1976 the Provincial Land Reform Board quashed the consolidation plan as far as the road was concerned and referred this part of the case back to the authority of first instance.   The remainder of the appeal was dismissed on the ground that the value of the compensatory parcels corresponded to the value of the applicants' former parcels.   With regard to their original parcels, which in their view were possible future building plots, the Land Reform Board found that these parcels did not directly border on a built-up area.   The fact that later on a building permit had been granted for these parcels to another party did not turn them into land of particular value, as the valuation of the parcels had been finally decided.   In any event, the authority considered that the applicants had received land of the same value.   32.   On 5 March 1979 the Constitutional Court dismissed the applicants' complaint and referred it to the Administrative Court.   33.   On 30 October 1979 the Administrative Court quashed the Provincial Land Reform Board's decision of 10 June 1976 holding that the reasoning of the Board concerning the valuation of the parcels in question had been based on an error of law.   The Administrative Court found that notwithstanding the initial valuation in 1964 the authority would have been legally obliged to assess the value of the parcels on the basis of their market value (Verkehrswert) at a later stage of the proceedings. As parts of the parcels had in fact been designated as a "development area for industrial buildings" (Aufschließungsgebiet für Industriebauten) during the land consolidation proceedings, the Administrative Court found the qualification of these parcels as possible building plots to be reasonable. Moreover it denied that the applicants had obtained a compensatory parcel of the same value.   34.   On 22 April 1980 the Provincial Land Reform Board also referred to the authority of first instance the remainder of the case which it had not already referred back by its decision of 10 June 1976.   35.   On 15 November 1982 the Agricultural Authority of first instance decided that a road should be constructed across two of the applicants' parcels and be transferred to the public property. The authority allotted a number of compensatory parcels to the applicants and granted them a certain amount of financial compensation.   36.   On 13 June 1983 the Provincial Land Reform Board dismissed the applicants' appeal.   The applicants lodged a complaint with the Constitutional Court.   37.   On 22 November 1985 the Constitutional Court refused to deal with the complaint and referred it to the Administrative Court.   38.   On 8 November 1988 the Administrative Court quashed the decision as far as it concerned the compensation of the applicants and dismissed the remainder of the complaint.   The matter was referred back.   39.   On 1 June 1989 the Provincial Land Reform Board quashed the decision of the agricultural authority of first instance dated 15 November 1982,   and further referred the case back to this first instance. It observed that it could not decide on the merits itself because an oral hearing - which must be held before the first instance - appeared unavoidable.   40.   The Agricultural Authority of first instance made some proposals which the applicants did not accept, but it did not take a decision before 28 December 1990, after the applicants had made an application for transfer of jurisdiction to the Provincial Land Reform Board.   This application was granted.   41.   Eventually the matter was however decided by the Supreme Land Reform Board to which the applicants had successfully complained of the inaction of the Provincial Land Reform Board.   42.   Before deciding on the matter, the Supreme Land Reform Board had investigations carried out on the spot by delegates (Abgeordnete) on 19 March 1992.   43.   On 1 April 1992 the Supreme Land Reform Board amended the consolidation plan and designated the properties which the applicants received as compensation.   44.   It is stated in the decision that the applicants had a right to receive real estate properties which corresponded in value to their former property.   The Board took into account that part of the applicants' former property had become constructible subsequent to the allotment.   On the other hand, as the court pointed out, the applicants had received constructible land in compensation and the size of this land corresponded to their prior property.   It was also pointed out that the applicants had not put in question the value (Verkehrswerte) of the property allotted to them.   It is further pointed out that the possible increase or decrease of value in respect of constructible land would have had affected both the applicants prior property as well as the property allotted to them and consequently they had not suffered any damage.   45.   The Board further found that the applicants had also received as much property in size in respect of agricultural property as the property which had been taken from them at the beginning of the allotment proceedings.   46.   Insofar as the applicant E. P. had complained that she had not received adequate compensation for the property No. 9679, the Board pointed out that this property had been bought by the applicant in 1982.   However, at that time the decision on the re-allocation of this particular property had already become binding (rechtskräftig).   47.   Insofar as the applicants complained that one of the new sites allotted to them was hillside property, and therefore the costs of construction would be higher than on flat land, as had been their former property, the Board pointed out that, contrary to the applicants' former corresponding properties, the new site offered the possibility of constructing two houses with gardens while the applicants' former plot had been too small for a comparable use. Therefore possible higher construction costs were balanced by the higher value of the property.   48.   Subsequently the applicants lodged an appeal to the Administrative Court.   On 30 October 1992 the Supreme Land Reform Board submitted its observations to the Administrative Court on the applicants' appeal.   The appeal is still pending.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   49.   The Commission has declared admissible the complaint relating to the length of the proceedings and the complaint about the alleged violation of the applicants' right to the peaceful enjoyment of possessions.   B.    Points at issue   50.   The following points are at issue in the present case:   (a)   Whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention, in that the applicants' civil rights and obligations were not determined within a reasonable time;   (b)   Whether the situation created by the provisional transfer of the applicants' property and the alleged insufficiency of the compensation parcels which the applicants have to accept pending their appeal amounts to a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention (length      of the proceedings)        (1)   Applicability of Article 6 para. 1 (Art. 6-1) of the           Convention.   51.   The relevant part of the first sentence of Article 6 para. 1 (Art. 6-1) of the Convention 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......"   52.   The applicability of this provision to land consolidation proceedings is uncontested and was repeatedly confirmed by the European Court of Human Rights (see Wiesinger judgment of 30 October 1991, Series A no. 213, p. 34, para. 75, with further references).        (2)   The period to be taken into consideration.   53.   While the Commission considered in its decision on admissibility of the present application that the proceedings in question started on 16 October 1964, it now finds after further consideration that the relevant period to be considered under Article 6 para. 1 (Art. 6-1) of the Convention did not start until 15 December 1969 when the applicants and their mother appealed against the consolidation plan which had been established on 31 October 1969.   54.   The earlier date, namely 16 October 1964, when the Agricultural Authority ordered the provisional transfer of the compensatory parcels according to the draft consolidation plan, cannot be considered to be decisive as the applicants did not lodge a complaint against this decision before the autumn of 1967 after the Provincial Land Reform Board had granted, on 24 August 1967, a building permit for a sawmill to another party's compensatory parcel.   However, this complaint was not pursued by them and therefore the Administrative Court had discontinued the proceedings on 13 December 1968.   55.   Consequently, a genuine dispute between the parties did not arise until 15 December 1969 when the applicants and their mother lodged the appeal against the consolidation plan.   56.   The proceedings started thereby are still pending.   Thus, the period under consideration has to date lasted nearly 25 years.        (3)   Reasonableness of the length of the proceedings.   57.   The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court's case-law and in the light of the circumstances of the case, which in this instance called for an overall assessment (cf. Eur. Court H.R., Messina judgment of 26 February 1993, Series A No. 257H, p. 103, para. 26).   58.   In this context the Commission first recalls that it is recognised in the jurisprudence of the Convention organs that land consolidation proceedings are, by their nature, complex and difficult (cf. Wiesinger judgment op. cit., p. 21 para. 55).   However, a lapse of nearly 25 years is in itself quite exceptional and the Government have conceded in their observations on admissibility and merits that the admittedly long duration of the proceedings was also due to the conduct of the Austrian authorities as a whole.   In this context the Commission further notes that the Supreme Land Reform Board in its decision of 1 April 1992 considered the applicant's complaint about the inaction of the Provincial Land Reform Board to be justified.   59.   Insofar as the Respondent Government submitted that the applicants, by their large number of appeals, contributed to the considerable length of the proceedings, it must be noted in the light of the result of these appeals that the remedies pursued by the applicants were not in vain.   It cannot therefore be held against them that the applicants availed themselves of all possible remedies.        CONCLUSION   60.   The Commission concludes, unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention, in that the applicants' civil rights and obligations were not determined within a reasonable time.   D.    As regards Article 1 of Protocol No. 1 (P1-1) to the Convention   61.   Article 1 of Protocol No. 1 (P1-1) to the Convention 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."   62.   The applicants' claim that there has been a violation of this provision in that the provisional transfer of land deprived them of constructible plots.   They admit that in the meantime some of their compensation plots have also become constructible but still consider that they have been less favourably treated than another owner whose property became constructible many years earlier.   Furthermore they allege that a road construction project will affect the value of some of their land.   63.   The Government deny that the applicants were given insufficient compensation parcels and points out that proceedings on this issue are still pending.   64.   The Commission had regard to the Erkner and Hofauer case and the Poiss case where the interference, in the form of a provisional transfer of property, continued over a long period and therefore violated Article 1 of Protocol No. 1 (P1-1) (Eur. Court H.R., judgments of 23 April 1987, Series A No. 117).   65.    The present complaint has to be examined in the light of the judgments given in these cases.   66.   In the Wiesinger case the European Court of Human Rights found that the purpose of a provisional transfer, which is mainly to ensure that the consolidation area is continuously and rationally cultivated during the interim period, would be upset if repeated changes were allowed (op.cit. p. 27 para. 76).   This reasoning applies a fortiori to the situation where the provisional transfer of property is confirmed by the adoption of the land consolidation plan.   The Commission notes that upon appeal by the applicants the Austrian Agricultural Authorities which enjoyed a margin of appreciation (cf. Wieninger judgment, op. cit. p. 27, para. 76) amended the consolidation plan in the applicants' favour on 15 November 1982.   In particular a number of compensatory parcels were allotted to the applicants and they were granted a certain amount of financial compensation.   67.   Moreover, on 1 April 1992, the Supreme Land Reform Board further amended the consolidation plan.   The applicants have not shown that these amendments were totally insufficient.   68.   In view of all these circumstances the Commission considers that the present case is to be distinguished from the Erkner and Hofauer case and the Poiss case (judgments cited above) and that the interference with the applicants' right of property cannot be held as being disproportionate with the demands of the general public interest involved in the consolidation proceedings.        CONCLUSION   69.   The Commission concludes, unanimously that there has been no violation of Article 1 of Protocol No. 1 (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 _________________________________________________________________   4 July 1989               Introduction of application   15 September 1989         Registration of application   Examination of admissibility   7 October 1991            Commission's decision (First Chamber) to                          communicate the case to the respondent                          Government and to invite the parties to                          submit observations on admissibility and                          merits   19 February 1992          Government's observations   25 March 1992             Applicant's observations in reply   30 June 1993              Commission's adoption of text of decision                          on admissibility   Examination of the merits   12 August 1993            Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits   13 December 1993          Government's observations   8 February 1994           Applicant's observations   14 February 1994          Meeting called in Vienna with parties,                          applicant did not attend   8 March 1994              Applicants inform Commission that not                          prepared to enter into friendly settlement   17 May 1994               Commission's consideration of state of                          proceedings   31 August 1994            Commission's deliberations on the merits,                          final vote and consideration of text of                          the Report   31 August 1994            Adoption of Report