CEDH · CASELAW;REPORTS;ENG — 5 avril 1995

.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. 15508/89                      Ludwig and Maria Prötsch                               against                               Austria                      REPORT OF THE COMMISSION                      (adopted on 5 April 1995)                          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. 16-27) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras.16-27) . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 28-38) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 28). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 29). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 1 of Protocol No. 1 to the Convention           (paras. 30-37). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 38). . . . . . . . . . . . . . . . . . . . .6   DISSENTING OPINION OF MM. M. PELLONPÄÄ AND N. BRATZA. . . . .7   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . .8   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .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 and own a farm at Niederthalheim, Upper Austria. They were represented before the Commission by Mr. Erich Proksch, a lawyer practising in Vienna.   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. Nikolaus Scherk, Deputy Legal Adviser.   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 Upper Austrian Agricultural Land-Planning Act (Flurverfassungsgesetz). The applicants invoke Article 1 of Protocol No. 1. to the Convention.   B.    The proceedings   5.    The application was introduced on 12 June 1989 and registered on 15 September 1989.   6.    On 2 December 1991 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 case was subsequently transferred to the First Chamber.   8.    The Government's observations were submitted on 25 May 1992 after one extension of the time-limit fixed for this purpose. The applicants replied on 9 July 1992.   9.    On 31 August 1994 the Commission (First Chamber) declared admissible the applicants' complaint under Article 1 of Protocol No. 1. It declared inadmissible the remainder of the application.   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:             Mr.   C.L. ROZAKIS, President           Mrs. J. LIDDY           MM.   E. BUSUTTIL                A.S. GÖZÜBÜYÜK                A. WEITZEL                M.P. PELLONPÄÄ                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV                G. RESS   12.   The text of this Report was adopted on 5 April 1995 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   A.    The particular circumstances of the case   16.   The applicants, Austrian citizens who own a farm in Niederthalheim, Upper Austria, are represented by Mr. Erich Proksch, a lawyer practising in 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 Upper Austrian Agricultural Land Planning Act (Flurverfassungsgesetz).   17.   The proceedings were apparently instituted ex officio in 1979. In October 1979 and October 1980 the Gmunden Agricultural District Authority (Agrarbezirksbehörde) ordered the provisional transfer (vorläufige Übergabe) of the compensation parcels. The first order related to part of the area, namely Imming, and the second order to the remaining area.   18.   The consolidation plan (Zusammenlegungsplan) was issued in October 1983.   19.   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.   20.   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 be partly dismissed, as the compensation of the applicants was an indivisible whole.   21.   On 11 July 1985 the Provincial Land Reform Board set the consolidation plan aside. The Board pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants, according to which the compensation parcel's yield was below that of the applicants' prior property. It established that the compensation attributed to the applicants was, on the one hand more advantageous, but also contained some negative aspects.        The advantages were :        -     reduction of the splitting up of the parcels (increase of           average size of parcels)      -     reduction of the length of borderlines (abolition of           unproductive balks)      -     better proportionality between length and width of the           parcels      -     better access        The negative criteria were :        -     diminution of average comparative values of the   parcels           by 2.3%      -     increase of average distance from the farm by 2%      -     slight increase of forest border      -     no optimal exploitation of plot No. 4733      -     hook-like form of parcel No.4738, circuit line pylons on           this plot part of which was unproductive.        The Board concluded that in sum the lawfulness of the compensation was still in question (Die Gesetzmässigkeit der Abfindung ... erscheint noch nicht gewährt).   22.   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.   23.   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.   24.   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.   25.   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. In the latter respect, the Board pointed out that it had examined and rejected the applicants' private expert opinion already in its decision of 11 July 1985 (see para. 21 above). Although the original consolidation plan had to be quashed in consequence of the applicants' appeal, this did not mean that the applicants had suffered damage.   In the instant case, it had been found in the earlier decision that among the total of 17 ha of compensation plots allotted to the applicants only a parcel of 2,2 ha (No. 4738) was objectionable. On the other hand, the applicants had also gained certain advantages. Therefore the Board maintained the opinion already expressed in the earlier decision that the applicants had not suffered any damage as far as yield and exploitation facilities (Ertragswert und Betriebserfolg) were concerned.   26.   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.   27.   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 have any prospects of success.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   28.   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:   29.   Whether the applicants' right to the peaceful enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1 (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 consolidation proceedings.   C.    Article 1 of Protocol No. 1 (P1-1)   30.   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."   31.   The applicants allege that the compensation parcels allotted to them in 1979/80 caused them annual losses of some AS 30,000 per year. As the situation complained of lasted seven years, their total loss allegedly amounts to AS 210,000.   This damage, so they submit, exclusively follows from the fact that the compensation parcels attributed to them are less valuable.   32.   The respondent Government deny that the applicants suffered any damages in consequence of the provisional property transfer. They further argue that, in any event, the disadvantages alleged by the applicants did not amount to a violation of Article 1 of Protocol No. 1 (P1-1).   Even if the applicants had experienced some disadvantages these were unimportant and outbalanced by the advantages. It is also submitted that the proceedings in the instant case only lasted six years and thus the disadvantages alleged by the applicants did not have to be borne for an excessive period.   33.   The Commission first notes that the European Court of Human Rights has already recognised in the Erkner, Hofauer and Poiss case (Judgment of 23 April 1986, Series A, no. 117) that the system of provisional land transfers is not as such contrary to Article 1 of Protocol No. 1 (P1-1) as long as no disproportionate burden is placed on the individual land-owner.   34.   The Court has considered such transfers under the first paragraph of Article 1 (P1-1).   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., p. 66 para. 78 and p. 109      para. 68)."   35.   The Court then concluded that in these cases the necessary balance between protection of the right of property and the requirement of the public interest was lacking.   36.   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 six 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.   37.   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 Protocol No. 1 (P1-1), in that an individual and excessive burden is thereby imposed on such owners.        CONCLUSION   38.   The Commission concludes, by nine votes to two, that in the present case there has been a 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)                      (C.L. ROZAKIS)        DISSENTING OPINION OF MM. M. PELLONPÄÄ AND N. BRATZA        We are unable to share the view of the majority of the Commission that there has been a violation of Article 1 of Protocol No. 1 in the present case.        We do not consider it necessary to determine whether the proceedings here in question lasted six or seven years as the applicants allege.   We note that the period involved was in any event considerably shorter than the periods with which the Court was concerned in the Erkner and Hofauer case and the Poiss case, the shortest of which lasted more than sixteen years.        We further note that the Provincial Land Reform Board examined the applicants' allegations concerning the damage caused to them by the provisional property transfer and twice expressed the reasoned opinion that the applicants' complaints were unfounded in both law and fact. In this respect, the present case can be distinguished from the Wieninger case in which the Commission found a violation of Article 1 of Protocol No. 1 (Comm. Report of 11 January 1984, No. 12650/87 not yet published).        In these circumstances there is in our view nothing to indicate that the provisional property transfer imposed on the applicants an individual and excessive burden such as to amount to a violation of Article 1 of Protocol No. 1.                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                      Item _________________________________________________________________   12.06.1989                Introduction of application   15.09.189                 Registration of application   Examination of admissibility   02.12.1991                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   25.05.1992                Government's observations   09.07.1992                Applicant's observations in reply   31.08.1994                Commission's decision to declare                          application in part admissible and in part                          inadmissible   Examination of the merits   15.09.1994                Decision on admissibility transmitted to                          parties. Invitation to parties to submit                          further observations on the merits                            Government's observations   11.11.1994                Applicant's observations                            Commission's consideration of state of                          proceedings                            Commission's deliberations on the merits,                          final vote and consideration of text of                          the Report