CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 22811/93                       by Ernst and Anna LUGHOFER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, 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. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 27 September 1993 by Ernst and Anna LUGHOFER against Austria and registered on 25 October 1993 under file No. 22811/93;        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 applicant couple, both of Austrian nationality, are farmers in Vöcklabruck.   They are represented by Mr. E. Proksch, a lawyer practising in Vienna.        It follows from their statements and the documents submitted that their farm was involved in agricultural land consolidation proceedings (Zusammenlegungsverfahren) under the Agricultural Land Planning Act (Flurverfassungsgesetz).   These proceedings were instituted by the Agricultural Authorities at Gmunden (Agrarbezirksbehörde) on 22 February 1973.        A hearing at which the farmers concerned could express their wishes (Wunschverhandlung) was held on 21 August 1984 and on 22 August 1985 the provisional transfer of the properties concerned was ordered. Subsequently a consolidation plan (Zusammenlegungsplan) was adopted and made public between 3 July and 21 July 1989 in the Pilsbach Town Hall (Gemeindeamt).   The applicants raised objections alleging that they had not received adequate land in exchange for their parcels AK 2   and AK 8.   Their appeal (Berufung) was dismissed by the Provincial Land Reform Board (Landesagrarsenat) in Linz on 5 July 1990 subsequent to an oral hearing held in private, but in presence of the parties and their lawyer.        The Board found that the applicants had acquired the parcels AK 2 and AK 8 by a sales contract concluded on 21 September 1984 with the couple R. who had agreed to receive the compensation parcels provided for as planned in the consolidation plan. Attempts to take into account the compensation wishes of the new owners with regard to the plots in question failed as two neighbours, namely H. and O. objected to a change of the adopted project of the consolidation plan.        The Board further found that although the value classification of the newly-allotted parcels was 5 to 6 points lower than the applicants' original properties this unimportant disadvantage was counterbalanced by the fact that the newly-attributed parcels were better formed and situated. They were also sufficiently accessible via public roads.   Examining all the circumstances in detail the Board came to the conclusion that the applicants had received adequate compensation and their objections were therefore unfounded.        The applicants then brought the case to the Administrative Court which dismissed their appeal (Beschwerde) on 15 December 1992 as being unfounded.   This decision was received by applicant's counsel on 22 April 1993.        The court noted that judged globally the new territories attributed to the applicants in exchange for their former territories were as valuable.   In respect of the applicants' allegation that compensation parcel no. 25/56 was difficult to accede to, the court noted that a new transport road had been constructed and easy access was now guaranteed. In so far as the applicants had alleged to have paid an important price for their former parcel AK 8 and that this parcel was also future construction land, the court noted that the price allegation had not been made in the prior proceedings and that the allegation as to constructability was contrary to the existing plans.   After examination of all factual circumstances on the basis also of a comparison of reference values (Wertklassen) the court concluded that the applicants had received adequate land parcels in compensation.   Therefore the applicants' argument that they were not bound by their predecessors' acceptation of the consolidation plan was irrelevant.        The court finally noted in its decision that, in accordance with Section 39 para. 2 no. 6 of the Administrative Court Act (VwGG), it had not granted the applicants' request for an oral hearing.   COMPLAINTS        The applicants maintain that their right to the peaceful enjoyment of possessions was violated in that the compensation parcel they received for their parcel AK 8 was insufficient.   The compensation parcel no. 25/56 was practically worthless and could at best be sold at 10 AS per square metre while their former parcel had a value of 62,80 AS per square metre.        They also invoke Article 6 of the Convention on the ground that the land consolidation proceedings were not held in public.   THE LAW   1.    The applicants have 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 land allocated to them in the land consolidation proceedings was 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 according to the findings of the Austrian Administrative Court the applicants received adequate compensation parcels and they have not shown that this finding is arbitrary and that in fact the attribution of other land deprives them of a considerable part of their property values such as to constitute an intolerable and excessive burden on them.        It follows that this part of the application has 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 furthermore complained that in the land consolidation proceedings they were denied an oral hearing held in public.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government without however requesting written observations before a judgment is given in the case of Stallinger and Kuso pending before the European Court of Human Rights and raising a similar issue.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE the applicants' complaint that there has      been an unjustified interference with their property rights.        DECIDES TO ADJOURN the applicants' complaint that they did not      have a public hearing in the land consolidation proceedings.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)