Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> WIESINGER v. AUSTRIA - 11796/85 [1991] ECHR 48 (30 October 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/48.html
Cite as: 16 EHRR 258, [1991] ECHR 48, (1993) 16 EHRR 258
[New search] [Contents list] [Help]
In the case of Wiesinger v. Austria*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention** for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of the Rules of Court***, as a Chamber composed
of the following judges:
Mr J. Cremona, President,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Sir Vincent Evans,
Mr A. Spielmann,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 April and 24 September 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 38/1990/229/295. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11) , which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 11 July 1990,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 11796/85) against the Republic of Austria
lodged with the Commission under Article 25 (art. 25) by two
Austrian nationals, Mr Konrad and Mrs Klara Wiesinger, on
12 August 1985.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Austria recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of
its obligations under Article 6 para. 1 (art. 6-1) of the
Convention and Article 1 of Protocol No. 1 (P1-1), alone and in
conjunction with Article 14 (art. 14+ P1-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated
that they wished to take part in the proceedings and designated
the lawyer who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 27 August 1990,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr J. Cremona,
Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr N. Valticos,
Mr I. Foighel, Mr R. Pekkanen and Mr A.N. Loizou (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Sir Vincent Evans, substitute judge, replaced
Mr Valticos who was unable to take part in the further
consideration of the case (Rule 24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Deputy Registrar, consulted
the Agent of the Austrian Government ("the Government"), the
Delegate of the Commission and the lawyer for the applicants on
the need for a written procedure (Rule 37 para. 1). In
accordance with his orders and instructions, the Registrar
received the Government's memorial on 24 January 1991 and the
claims of Mr and Mrs Wiesinger under Article 50 (art. 50) of the
Convention on 7 February and 22 March 1991; the applicants'
claims were drawn up in German with the President's leave (Rule 27
para. 3). On 16 April the Secretary to the Commission
submitted several documents which had been asked for by the
Registrar on the instructions of the President.
5. Having consulted, through the Deputy Registrar, those who
would be appearing before the Court, the President had directed
on 9 October 1990 that the oral proceedings should open on
22 April 1991 (Rule 38).
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held
a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Federal Chancellery, Agent,
Mr F. Haug, Ministry of Foreign Affairs,
Mr J. Jöstl, President of the Supreme Agricultural
Reform Board, Advisers;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicants
Mr P. Wiesauer, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Okresek and Mr Haug for the
Government, by Mr Schermers for the Commission and by Mr Wiesauer
for the applicants, as well as their replies to the questions put
by the Court.
7. For the final deliberations, Mr Cremona, Vice-President of
the Court, replaced as President Mr Ryssdal, who was unable to
take part in the further consideration of the case;
Mr A. Spielmann, who was present at the hearing as a substitute
judge, became a full member of the Chamber (Rules 21 para. 5,
22 para. 1 and 24 para. 1).
AS TO THE FACTS
8. Mr Konrad Wiesinger and his wife Klara are Austrian farmers
residing at Hartkirchen, Upper Austria. They complain of
consolidation measures (Zusammenlegungsverfahren) taken in
respect of their land since July 1975.
I. The circumstances of the case
A. The consolidation measures
9. On 22 July 1975 the Linz District Agricultural Authority
(Agrarbezirksbehörde, "the District Authority") opened the
Hacking land consolidation proceedings, pursuant to section 29
of the Upper Austrian Agricultural Land Planning Act 1972
(Flurverfassungs-Landesgesetz, "the 1972 Act"). The measures
concerned at least 67 landownersand covered approximately
172 hectares, including the applicants' property at Hartkirchen.
On 15 July 1976 Mr and Mrs Wiesinger made a "declaration of
wishes" (Wunschaufnahme), expressing their wish to receive
parcels situated near their farmhouse. On 13 August 1976 the
District Authority adopted the land valuation schedule, against
which the Wiesingers did not appeal.
10. On 13 October 1978 the District Authority ordered the
provisional transfer of compensatory plots (Grundabfindungen) on
the basis of a draft consolidation scheme (Neueinteilungsplan),
pursuant to section 22 of the 1972 Act (see paragraph 36 below).
The applicants had agreed to this plan, which provided them with
a parcel of 23,219 square metres near their farm, and did not
contest the transfer decision. While they lost the ownership of
land formerly belonging to them (including the five plots
mentioned in paragraph 12 below), which passed to the association
of landowners (see paragraph 33 below), they acquired the
provisional ownership of certain plots subject to a condition
subsequent, namely that they would be dispossessed of them under
the final consolidation scheme, if it did not confirm the
allocation thereof to the applicants (section 22 of the 1972
Act).
B. The amendment of the area zoning plan for Hartkirchen
11. On 1 September 1978 the municipal council of Hartkirchen had
adopted an area zoning plan (Flächenwidmungsplan; see
paragraphs 42-43 below), which was approved on 10 October by the
government of the Land. The Wiesingers' property, which was
covered by the consolidation scheme, retained its designation as
agricultural land, although certain adjoining plots had been
redesignated as building land in 1976 and 1978.
12. At the request of the new (provisional) owners, the
municipal council amended the area zoning plan on
16 November 1979. It classified as building land five plots
covering a surface of 25,206 square metres which had previously
belonged to the applicants. On 16 April 1980 the Land government
approved the decision, which became final on 6 May.
Subsequently the five plots were divided into parcels and sold
to several persons who were granted building permits in respect
of them.
C. The proceedings instituted by the applicants following
the amendment of the area zoning plan
13. On 10 August 1982 Mr and Mrs Wiesinger asked the District
Authority to return to them the five plots by withdrawing them
from the consolidation scheme. In their view the plots in
question were now to be regarded as land of special value which
under the relevant legislation was in principle to be left to the
previous owners. In the alternative, they asked to be allocated
building land or to be accorded financial compensation
(Geldwertentschädigung). They also sought compensation
(Schadensersatz) on account of loss of interest (Zinsverlust)
arising from the fact that they had not themselves been able to
sell the five plots after the amendment of the area zoning plan;
they estimated this amount at 1,600,000 schillings on the basis
of a price of 400 schillings per square metre at an interest rate
of 10%.
14. The District Authority replied by a letter of
17 January 1983. It referred to the Upper Austrian Agricultural
Land Planning Act 1979 ("the 1979 Act"), which had replaced the
1972 Act, and drew their attention to the fact that claims for
compensation had to be submitted within six months of the date
on which the consolidation scheme became final (section 20(6);
see paragraph 37 below). It therefore requested the applicants
to await the publication of the scheme which was scheduled for
July.
15. The Wiesingers took the view that the District Authority had
failed to resolve within the statutory time-limit of six months
the questions which they had raised with it and, on
23 August 1983, filed with the Provincial Land Reform Board
(Landesagrarsenat, "the Provincial Board") an application for a
ruling on the matter (section 73 of the General Administrative
Procedure Act, Allgemeines Verwaltungsverfahrensgesetz; see
paragraph 41 below).
The Provincial Board gave its decision on 17 November. It
dismissed the request for the five plots to be withdrawn from the
consolidation scheme. It considered that, in order to attain its
objective, the scheme had to include the land in question and the
fact that the plots were now building land made no difference in
this respect. It found that the District Authority's refusal to
rule on the applicants' other claims was justified since the
merits of such claims could not be determined until the
consolidation scheme had become final. The Provincial Board
ordered the District Authority not to approve or authorise any
further division into parcels of the land in question or to allow
any further conversion into building land or any further issue
of building permits.
16. The Wiesingers appealed to the Supreme Land Reform Board
(Oberster Agrarsenat, "the Supreme Board"), which declared their
appeal inadmissible on 1 February 1984. Its decision was upheld
on 27 June by the Constitutional Court (Verfassungsgerichtshof)
and on 25 September 1984 by the Administrative Court
(Verwaltungsgerichtshof).
17. Previously, on 10 January 1984, the applicants had contested
the Provincial Board's decision of 17 November 1983 (see
paragraph 15 above) directly in the Administrative Court, which
gave its decision on 20 March 1984. It upheld the impugned
decision in so far as the Provincial Board had refused to return
the five plots to the applicants, but at the same time declared
the appeal well-founded on the other points. As the District
Authority had not ruled within the statutory period of six months
on the alternative claims filed by the applicants, the Provincial
Board ought to have decided them itself.
18. In new proceedings before it, the Provincial Board gave its
decision on 18 October 1984. In its view it was not possible
under the 1979 Act to afford compensation for the alleged damage.
The Act provided that the owners of plots of special value
covered by a consolidation scheme should in principle be
compensated by the allocation of land of the same type. As
regards the building land claimed by the Wiesingers, the Board
noted that the provisional transfer of the plots precluded
altering their allocation for the time being. However, the
provisional transfer did not prejudge the consolidation scheme
which would determine definitively the question of land of
special value. Furthermore, the building plots were referred to
only in the area zoning plan for Hartkirchen and there was
therefore an inseparable link between that plan and the question
of statutory compensation for land of special value.
Accordingly, the area zoning, which was the responsibility of the
municipal authorities and not the agricultural authorities, was
a precondition. The municipal council of Hartkirchen had
announced that it proposed to convert into building land certain
of the compensatory plots allocated to the applicants, but their
area and location had not yet been fixed. The Provincial Board
concluded that it could not rule on the merits of the question
until an appeal had been filed concerning the consolidation
scheme, once the latter had been adopted and published.
19. Mr and Mrs Wiesinger then appealed to the Constitutional
Court, which on 24 June 1985 refused to entertain their appeal
as the case did not raise any specific questions of
constitutional law. It remitted the case to the Administrative
Court, in accordance with the applicants' alternative plea.
20. The Administrative Court dismissed the appeal on
19 November 1985. It noted in the first place that the
applicants had themselves obtained the plots which they had
wished and whose designation as agricultural land had not been
changed. They had thus suffered no temporary disadvantage for
which they could claim financial compensation. It was true that
the area zoning plan had reclassified a part of their former land
after its provisional transfer. However, the consolidation
scheme, which was to fix the statutory compensation, would have
to take into account any changes in the value of the land
occurring in the course of the proceedings, for example following
a new area zoning plan as in this instance. Consequently, the
contested decision was not unlawful.
D. The proceedings instituted by the applicants to accelerate the
implementation of the consolidation measures
21. Relying on section 7a(4) of the Federal Agricultural
Proceedings Act 1950 (Agrarverfahrensgesetz, "the 1950 Federal
Act"), according to which the consolidation scheme is to be
published not later than three years after the final decision on
the provisional transfer of plots, the Wiesingers asked the
Provincial Board on 17 January 1984 to take jurisdiction over the
case in accordance with section 73 of the General Administrative
Procedure Act (see paragraphs 37 and 41 below).
On 7 June the Board refused. It considered that it was empowered
to adopt the consolidation scheme only if the failure to comply
with the statutory time-limit of three years was exclusively the
fault of the District Authority. This was not the case.
Since the provisional transfer the District Authority had made
every effort to draw up the consolidation scheme. Its work had
been delayed on account, in particular, of the proposed route for
a new major road and its link roads across the area in question,
which made it necessary to revise the position of 43 owners.
Furthermore, a substantial part of the file had had to remain for
several months with the Provincial Board in connection with
appeal proceedings instituted by a landowner; likewise, the
Wiesingers' application of 23 August 1983 had required the file
to be sent to the Provincial Board, then to the Supreme Board and
to the Administrative Court, and had therefore prevented a
decision from being taken during this period. The District
Authority could have adopted and published the consolidation
scheme in 1983 if further consideration, inquiries and interviews
had not been necessary following the alteration to the
Hartkirchen area zoning plan. With a view to expediting the
final adoption of the area zoning plan, it had held discussions
with the municipal council as early as 8 September 1983, and then
with the authorities with competence in the field of land
development on 25 January, 22 February, 5 March and 10 April 1984.
As the area zoning plan had still not been settled, it had not
been possible to adopt the consolidation scheme, because the
District Authority could not yet determine whether the allocation
of land provided the applicants with sufficient compensation,
thereby satisfying the statutory criteria. It was, moreover,
contrary to the principles of efficient administration to
finalise the consolidation scheme before the adoption of the area
zoning plan. The conduct of the District Authority had thus been
justified. Under section 38 of the General Administrative
Procedure Act, it was possible to stay (aussetzen) proceedings
pending a definitive decision on a preliminary question which was
the subject of other proceedings. In this case the area zoning
constituted a preliminary question for the consolidation
proceedings.
22. The applicants appealed to the Supreme Board, which
dismissed their appeal on 6 March 1985.
It began by upholding the Provincial Board's decision that the
latter had competence to adopt a consolidation scheme solely
where the failure to comply with the statutory time-limit of
three years was exclusively the fault of the District Authority.
According to the established case-law of the Administrative
Court, there was no such fault where the delay resulted from the
conduct of one of the parties or from an insurmountable obstacle.
In the present case it had not been suggested that the
applicants' conduct had been in any way reprehensible, nor could
the failure to comply with the statutory three-year time-limit
be blamed on the District Authority. Throughout the
consolidation proceedings, it had to take account of the area
zoning plans and any amendments thereto. It was therefore
impossible, and indeed contrary to the principles of efficient
administration, to adopt a consolidation scheme where no final
land-development plan or area zoning plan existed, and where
negotiations for the adoption of such plan were in progress.
Even before the Wiesingers' appeal had been filed, the competent
authority had conducted further inspections of the land and had
had contacts with the Hartkirchen municipal council, which was
considering the possibility of converting some of the plots
allocated to them into building land. In those circumstances,
there was no justification for adopting a consolidation scheme
which would probably have been defective as from its adoption,
if the municipal authority subsequently fixed an amended area
zoning plan. The finalisation of such a plan in fact constituted
a precondition for the adoption of the consolidation scheme. For
all these reasons, the District Authority had been right to stay
the proceedings pending the final decision of the municipal
council and was not responsible for the delay in the
consolidation proceedings.
23. Mr and Mrs Wiesinger contested this decision before the
Constitutional Court, which, on 23 November 1985, refused to
entertain their appeal on the same grounds as those set out in
its judgment of 24 June (see paragraph 19 above). It remitted
the case to the Administrative Court in accordance with the
applicants' alternative plea.
The Administrative Court dismissed the applicants' appeal on
8 April 1986. It found, inter alia, that the Provincial Board's
refusal to assume jurisdiction had been justified, since the
failure to comply with the statutory time-limit was not
exclusively attributable to the District Authority. Furthermore,
the applicants' claims concerning the nature and extent of the
compensatory plots related to the question of the statutory
compensation, which would be dealt with by the consolidation
scheme.
E. The consolidation scheme
24. On 16 July 1986 the District Authority published the
consolidation scheme (see paragraph 37 below); it returned to the
Wiesingers 9,680 square metres of their former land and allocated
to them plots covering an area of 19,909 square metres classified
as a zone capable of being redesignated as building land
(Bauerwartungsland). It pointed out that the applicants had
already received monetary compensation, in 1974, for certain
plots that they had had to give up in connection with the
construction of the new major road. It dismissed their claim for
compensation for the increased value of their former land
following its reclassification, because that had been taken into
consideration when the compensatory plots were allocated
definitively. Finally, the District Authority found that the
applicants had not suffered any temporary damage and were not
entitled to any financial reparation.
25. The applicants contested the scheme before the Provincial
Board. They argued that the land which they had ultimately
received was of a lower value than their former land; they had,
they claimed, sustained a loss of more than 4,000,000 schillings.
26. The different agricultural authorities attempted first to
secure a friendly settlement of the dispute: the District
Authority, between 20 October 1986 and 8 July 1987, during which
period twelve meetings were held, and the Provincial Board,
between 28 September 1987 and 28 August 1989, at eignteen
meetings with the parties concerned, the local authorities, the
highways department and the land designation supervisory
authority. In the course of these meetings the Provincial Board
invited the municipal authorities in question to redesignate a
particular plot which they were proposing to allocate to the
applicants as building land.
However, the authorities' efforts were in vain.
27. After the attempts to reach a friendly settlement had
failed, the Provincial Board held a hearing on 28 September 1989.
On 24 January 1990 it allowed in part the Wiesingers' appeal.
It awarded to them a part of their former land, now reclassified,
and other plots converted or to be converted into industrial
sites. On the other hand, it dismissed once again their claim
for financial compensation.
28. The applicants appealed against this decision to the Supreme
Board, which dismissed their appeal on 5 December 1990.
After having examined in detail the Wiesingers' objections, the
Supreme Board concluded that they had received compensatory plots
of a value equivalent to that of their former land, as was
required under the 1979 Act. Accordingly, the impugned decision
did not infringe their statutory rights. Furthermore, according
to the Supreme Board, if the new situation of agriculture in the
area was compared to the old one, it could be said that the
consolidation scheme had been a success and had achieved its
goals.
In the meantime the applicants had appealed to the Constitutional
Court, which has not yet ruled.
F. Other steps taken by the applicants
29. Prior to the adoption of the consolidation scheme, the
Wiesingers applied to the civil courts for an order directing the
cessation of the construction work which had begun on their
former land.
On 16 October 1985 the Wels Regional Court (Kreisgericht) found
that it lacked jurisdiction. Its decision was overturned on
21 February 1986 by the Linz Court of Appeal (Oberlandesgericht),
but on 19 June 1986 the Supreme Court (Oberster Gerichtshof)
confirmed that the civil courts were not competent to decide the
matter. The Supreme Court declined, on account of the exclusive
powers vested in the District Authority under Austrian law
(section 102(2) of the 1979 Act; see paragraph 33 below), to
follow its previous case-law, although it concerned similar
facts.
30. The applicants also requested authorisation to construct two
animal feed silos on their compensatory plots near their farm.
However, the authorities refused on the ground that they were
only provisionally owners of the land in question.
II. The relevant legislation
A. Agricultural legislation
1. The consolidation of agricultural land
31. The basic rules applying to the consolidation of
agricultural land are embodied in the Federal Agricultural Land
Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951),
as amended in 1977. The Länder have regulated the matters for which
they are made responsible under the Federal Legislation in provincial
agricultural land planning Acts (Flurverfassungs-Landesgesetze).
In Upper Austria, consolidation is governed by the Agricultural
Land Planning Act 1979 ("the 1979 Act"). This replaced an Act
of 1972, which had itself replaced an Act of 1911 that had been
brought into force again in 1954. The proceedings in the present
case were instituted under the 1972 Act, on the basis of which
the provisional transfer was ordered. However, the subsequent
proceedings were governed by the 1979 Act.
32. The purpose of consolidation is to improve the
infrastructure and the pattern of agricultural holdings in a
given area (section 1(1) of the 1979 Act). It comprises communal
measures and facilities and redistribution of land. The
operation takes place in the following stages:
- the initial proceedings;
- ascertainment of the occupiers of the land in question and
assessment of its value;
- planning of communal measures and facilities;
- provisional transfer of land, where appropriate;
- adoption of the consolidation plan.
None of these stages may begin until the previous stage has been
terminated with a final decision.
33. The initial proceedings, which are instituted of the
authorities' own motion, serve to determine the consolidation
area, which, in addition to farmland and forest, may include land
voluntarily offered for consolidation and land required for
communal facilities (sections 2 and 3). Land which is not needed
for the purposes of consolidation may subsequently be withdrawn
from the area (section 4(2)). The owners form an association
(Zusammenlegungsgemeinschaft), which is a corporate body governed
by public law.
The institution of proceedings means that land use is restricted
until the proceedings are concluded; any change in use must be
approved by the appropriate agricultural authority. This
authority has exclusive jurisdiction, inter alia, over disputes
concerning ownership and tenure of land in the consolidation area
(section 102).
34. Once the decision to open proceedings has become final, the
agricultural authority ascertains who are the occupiers of the
land and assesses its value (sections 11 and 12). Its decision
(Besitzstandsausweis und Bewertungsplan) determines the value of
the land in accordance with precise statutory criteria
(section 13). Each of the landowners involved may challenge the
valuation not only of his own land but also of the land of the
others. Once the agricultural authority's decision has become
final, however, it is binding on all of them.
35. Communal measures (e.g. soil improvement, alterations to
terrain or landscape) and communal facilities (e.g. private
roads, bridges, ditches, drainage and irrigation) are ordered,
where they are needed, in a specific decision by the relevant
authority (Plan der gemeinsamen Massnahmen und Anlagen), which
must also settle the question of costs, these usually being
shared by the landowners.
36. Under section 22, in both the 1972 and the 1979 Act, land
may be provisionally transferred before the adoption of the
consolidation scheme, even if some owners object.
Decisions by the competent authorities ordering provisional
transfers are not appealable; but section 7 of the Federal
Agricultural Authorities Act 1950 (Agrarbehördengesetz, as
amended in 1974, "the 1950/1974 Federal Act") provides that the
final decision shall lie with the Provincial Board, except in
cases where an appeal lies to the Supreme Board (see paragraph 39 below).
The main purpose of provisional transfer is to ensure that the
consolidation area is rationally cultivated during the interim
period. The land transferred becomes the property of the
transferees subject to a condition subsequent: ownership of it
reverts to the original owner if the allocation is not confirmed
in the final consolidation plan (Eigentum unter auflösender
Bedingung, section 22(2)). This provisional, conditional
ownership is, as a rule, not entered in the land register, since
it is subject to a resolutive condition and it is possible that
the parties concerned may be allotted other parcels once the
proceedings are completed. The District Authority has to
authorise any entry in the land register (sections 94 et seq.).
37. At the end of the proceedings, the agricultural authority
adopts the consolidation scheme (Zusammenlegungsplan, section
21). Since 1977 this has to be published within three years of
the final decision provisionally to transfer parcels of land
(section 7a(4) of the 1950 Federal Act), failing which the person
concerned may request the higher authority to assume
jurisdiction. The adoption of the plan is an administrative act
which is supported by maps and other technical data, and whose
main function is to determine the compensation due to the
landowners who are parties to the proceedings. The 1979 Act
includes the following regulations on this matter:
- when compensatory parcels are being determined, regard shall
be had to the wishes of the parties directly concerned in so far
as this can be done without infringing statutory provisions or
interfering with important public interests served by the
consolidation scheme;
- any landowner whose land is included in the consolidation
scheme shall be entitled to compensation in the form of other
land of equal value included in the same scheme or, if that is
not possible, to be reallocated his previous parcels, including
building land (section 19);
- changes in the value of land which come about in the course of
the proceedings, including those occurring after the provisional
transfer, must be taken into account in the final allocation
under the consolidation scheme (section 14(1));
- claims for compensation have to be submitted within six months
from the date on which the consolidation scheme becomes final
(section 20(6)).
38. The provincial legislation does not provide for any
financial compensation for damage suffered, before a final
consolidation plan comes into force, by landowners who
successfully challenge the lawfulness of compensation received
in the form of land.
2. The agricultural authorities
39. The first-instance authority in Upper Austria is the
District Agricultural Authority, which is a purely administrative
body. The higher authorities are the Provincial Board,
established at the Office of the Provincial Government (Amt der
Landesregierung), and the Supreme Board, set up within the
Federal Ministry of Agriculture and Forestry (Bundesministerium
für Land- und Forstwirtschaft). These boards include judges and
constitute a kind of "specialised administrative tribunal".
40. Decisions (Bescheide) of the District Authority can be
challenged by way of appeal (Berufung) to the Provincial Board,
whose decision is final except where it varies the decision in
question and where the dispute concerns one of the issues listed
in section 7(2) of the 1950/1974 Federal Act, such as the
lawfulness of the compensation in the event of land
consolidation; in such cases an appeal lies to the Supreme Board.
The executive can neither set aside nor vary the decisions of
these three bodies, but they can be challenged in the
Administrative Court (section 8 of of the 1950/1974 Federal Act
and Article 12 para. 2 of the Federal Constitution).
41. Procedure before the land reform boards is governed by the
1950 Federal Act, section 1 of which stipulates that the General
Administrative Procedure Act - except for one section of no
relevance in the instant case - shall apply, subject to the
variations and additional provisions made in the 1950 Federal
Act.
The boards are responsible for the conduct of the proceedings
(section 39 of the General Administrative Procedure Act). By
section 9(1) and (2) of the 1950 Federal Act, the boards take
their decisions after a private hearing.
Boards must determine cases without undue delay (ohne unnötigen
Aufschub) and in any event not later than six months after an
application has been made to them (section 73(1)). If the
board's decision (Erkenntnis) is not notified to the parties
concerned within that time, they may apply to the higher
authority, which will thereupon acquire jurisdiction to determine
the merits (section 73(2)). If the latter authority fails to
give a decision within the statutory time-limit, jurisdiction
passes - on an application by the interested party - to the
Administrative Court (Article 132 of the Federal Constitution and
section 27 of the Administrative Court Act).
B. Area zoning planning
42. In the present case, area zoning planning is governed by the
Upper Austrian Land Planning Act (Raumordnungsgesetz).
In Austrian law area zoning plans and any amendments thereto are
regarded as decrees (Verordnungen), even if they only concern one
individual's property. Accordingly, the proceedings in which
they are issued are not normal administrative proceedings and the
persons affected are not parties to them.
However, the competent local authorities (Gemeinden) must take
into consideration planning proceedings of neighbouring local
authorities and other public law corporations, as well as
regionally significant measures of other planning organisations
(section 15(10)), including the planning projects of the
agricultural authorities.
43. The lawfulness of decrees can be challenged before the
Constitutional Court under Article 139 of the Federal
Constitution. However, case-law has established that area zoning
plans cannot be directly challenged in proceedings under
Article 139 by the individuals affected if it is possible to
institute administrative proceedings.
This is the case, in particular, where the area zoning plan is
the basis for the granting or withholding of building permits.
The persons affected are expected to assert their rights in
administrative proceedings concerning the building permit, in
which they can allege that the underlying area zoning plan has
no legal basis or is contrary to the applicable legislation.
Ultimately this question can be brought before the Constitutional
Court by a constitutional complaint under Article 144 of the
Federal Constitution or by a request made by the Administrative
Court under Article 89 para. 2 and Article 139 of the Federal
Constitution.
C. Appeals to the Constitutional Court and the Administrative
Court
44. The decisions of land reform boards can be challenged in the
Constitutional Court. The latter will determine whether there
has been any infringement of the applicant's rights under the
Constitution and whether the boards have applied a decree
(Verordnung) that is unauthorised by statute law, an
unconstitutional statute or an international treaty that is
unlawful (rechtswidrig) under Austrian law (Article 144 of the
Federal Constitution).
45. As an exception to the general rule laid down in
Article 133 para. 4 of the Federal Constitution, section 8 of the
1950/1974 Federal Act provides for an appeal to the
Administrative Court against the decisions of land reform boards.
Application may be made to the Administrative Court before or
after an application to the Constitutional Court. The latter
will, if it rules that there has been no infringement of the
right relied on in the application to it and if the applicant so
requests, refer the case to the Administrative Court (Article 144
para. 3 of the Federal Constitution).
Under Article 130 of the Federal Constitution, the Administrative
Court determines applications alleging the unlawfulness of an
administrative act (Bescheid) or a breach by a competent
authority of its duty to take a decision. It also hears appeals
against decisions of boards whose members include judges - such
as the land reform boards (see paragraph 39 above) - where such
jurisdiction is conferred on it by statute.
PROCEEDINGS BEFORE THE COMMISSION
46. In their application (no. 11796/85) lodged with the
Commission on 12 August 1985, Mr and Mrs Wiesinger alleged a
violation of their right to have their case examined within a
reasonable time by an independent and impartial tribunal within
the meaning of Article 6 para. 1 (art. 6-1) of the Convention,
and of their right to the peaceful enjoyment of their possessions
as protected under Article 1 of Protocol No. 1 (P1-1); they
claimed in addition that they had received less favourable
treatment than the new owners of their former land and complained
of a breach of Article 14 (art. 14) of the Convention.
47. The Commission declared the application admissible on
10 July 1989, except as regards the complaint concerning the
independence and impartiality of the agricultural authorities.
In its report of 6 June 1990 (Article 31) (art. 31), it expressed
the unanimous opinion that there had been a violation of Article 6
para. 1 (art. 6-1) of the Convention and Article 1 of Protocol No. 1
(P1-1), and that it was not necessary to consider whether
there had been a breach of Article 14 (art. 14) of the
Convention.
The full text of the Commission's opinion is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 213
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
48. At the hearing on 22 April 1991, the Government invited the
Court to declare that "there has been a violation neither of
Article 6 (art. 6) of the Convention nor of Article 1 of Protocol No. 1
(P1-1), read alone or in conjunction with Article 14 of the
Convention (art. 14+P1-1)".
The applicants asked the Court to find that there had been a
violation of Article 6 para. 1 (art. 6-1) of the Convention, as
well as of Article 1 of Protocol No. 1 (P1-1), and submitted a
claim for just satisfaction under Article 50 (art. 50) of the
Convention.
AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 6 para. 1 (art. 6-1) OF THE
CONVENTION
49. Mr and Mrs Wiesinger claimed that, in the consolidation
proceedings to which they were parties, their civil rights and
obligations had not been determined within a "reasonable time",
as required by Article 6 para. 1 (art. 6-1) of the Convention.
As far as is relevant, this provision reads:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by (a) ... tribunal ... "
This allegation was accepted by the Commission, but contested by
the Government.
50. The consolidation scheme in issue affected the applicants'
property rights, and was thus decisive for their private rights
and obligations (see, the Erkner and Hofauer judgment of 23 April 1987,
Series A no. 117, p. 60, para. 62, and the Poiss judgment
of the same date, ibid., p. 102, para. 48); this was not, in
fact, disputed by those appearing before the Court.
Article 6 para. 1 (art. 6-1) is therefore applicable to the
proceedings concerning the adoption of the scheme.
A. The period to be taken into consideration
51. The consolidation proceedings started on 22 July 1975 and
the provisional transfer of the parcels covered by the scheme,
all of which were at the time designated as agricultural land,
was ordered on 13 October 1978 (see paragraphs 9 and 10 above).
The Court agrees, however, with the Commission and the Government
that no "dispute" ("contestation") arose in this case until 10 August 1982.
Previously the applicants had accepted the provisional transfer (see
paragraph 10 above). It was only on that date that they, having learnt
that their former parcels had been redesignated as building land, sought from
the District Authority, amongst other things, their exclusion from the scheme
and their return to them or, alternatively, the attribution of plots of
equivalent value or the payment of monetary compensation (see paragraph 13
above, and the above-mentioned Erkner and Hofauer judgment, p. 61, para. 64).
52. As to the end of the period, the Government argued that the
Austrian authorities had in fact dealt with several separate sets
of proceedings, all of which were completed within a reasonable
time.
The Court is unable to accept this argument. It considers, like
the Commission, that the various interim proceedings were
inter-related, in that they all bore on questions that were
preliminary to the main contentious issue, namely the
compensation to which the applicants were entitled after the
redesignation of their former land (see paragraph 37 above).
The applicants' request of 10 August 1982 was rejected by the
Administrative Court on 19 November 1985 because the definitive
allocation of the land had not yet been decided (see paragraph 20
above). The object of the second set of proceedings
instituted by the applicants was precisely to secure the prompt
adoption of the final consolidation plan (see paragraph 21
above). Again, their objections and appeals subsequent to
publication of the plan on 16 July 1986 were likewise directed
at the determination of the compensation issue
(see paragraphs 24-28 above).
In these circumstances, the consolidation proceedings in question
have to be considered as a whole. They have not yet given rise
to a decision which disposes of the "dispute" (see, inter alia,
the above-mentioned Erkner and Hofauer judgment, p. 62,
para. 65), since the applicants' appeal to the Constitutional
Court is still pending (see paragraph 28 above).
53. The proceedings have thus lasted, until now, more than nine
years (10 August 1982 - 24 September 1991).
B. Reasonableness of the length of the proceedings
54. The reasonableness of the length of proceedings is to be
assessed in each case according to the particular circumstances
and having regard to the criteria laid down in the Court's
case-law (see, inter alia, the above-mentioned Erkner and Hofauer
judgment, p. 62, para. 66). In addition, only delays
attributable to the State may justify a finding of a failure to
comply with the "reasonable time" requirement (see, inter alia,
the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66,
p. 11, para. 24).
1. Complexity of the case
55. The Court recalls its approach to this issue in this type
of case, as stated in paragraph 67 of the Erkner and Hofauer
judgment (ibid., p. 62). It recognises, as did all the
participants in the Strasbourg proceedings, that land
consolidation is by its nature a complex process, affecting the
interests of both individuals and the community as a whole.
Here, the consolidation scheme concerned a large number of
landowners and covered an area of approximately 172 hectares (see
paragraph 9 above). An additional factor of complexity was the
recent construction in the area of a network of link roads to a
main road, which caused the position of a number of landowners
to be revised (see paragraph 21 above).
The proceedings appear, however, to have developed relatively
smoothly until the municipal authorities, on 16 November 1979,
redesignated the applicants' former plots as building land and
they reacted to this measure (see paragraphs 12 and 13 above).
The agricultural authorities were then faced with a difficult
problem: according to section 14(1) of the 1979 Act, changes in
the value of land occurring in the course of consolidation
proceedings had always to be taken into account if they had a
bearing on the amount of compensation due (see paragraph 37
above). Since the redesignated plots were worth more than the
agricultural land which the applicants had received in exchange,
the case became much more complex. This state of affairs was,
however, the consequence of the Austrian authorities' actions and
cannot be held against the applicants.
2. Conduct of the applicants
56. In the Commission's view, Mr and Mrs Wiesinger could not be
blamed for having used, after their situation had been changed
by the redesignation of their former plots, almost all the legal
remedies available to them. The Government conceded this point,
but maintained that, by filing so many objections and appeals,
the applicants unnecessarily prolonged the proceedings.
57. The Court, while in principle concurring with the
Commission's opinion, recalls that the applicants' behaviour
constitutes an objective fact which cannot be attributed to the
respondent State and which must be taken into account in
determining whether or not the reasonable time referred to in
Article 6 para. 1 (art. 6-1) has been exceeded (see the
above-mentioned Erkner and Hofauer judgment, Series A no. 117,
p. 63, para. 68). It notes, however, like the Commission, that
the remedies which the applicants pursued in the interim
proceedings did not delay the determination of the main issue,
namely the question of the compensation to which they were
entitled. In fact, their first action was rejected, with final
effect, by the Administrative Court on 19 November 1985 on the
ground that the consolidation plan, which had not yet been
adopted, would have to take account of the enhancement in value
of the plots in question (see paragraph 20 above). Their second
action, seeking to accelerate the adoption of the scheme,
concluded with the Administrative Court's decision of 8 April
1986, holding that the applicants' complaints concerned the
question of statutory compensation, which would be dealt with by
the scheme (see paragraph 23 above). It was only later, on
16 July 1986, that the consolidation scheme itself was published
(see paragraph 24 above).
58. Although the definitive scheme improved the applicants'
situation by returning to them some of their former plots, they
nevertheless objected to it on the ground that the land that they
had lost was still more valuable than the land they had finally
received by way of compensation (see paragraph 25 above). They
maintained this position throughout the proceedings, including
the friendly settlement negotiations with the agricultural
authorities, and did finally secure a further improvement of
their situation (see paragraph 27 above). It cannot, therefore,
be said, as the Government contended, that the remedies pursued
by the applicants were useless.
No substantial delay can thus be attributed to the applicants.
3. Conduct of the Austrian authorities
59. According to the Government, the Austrian authorities
concerned had at no stage been inactive but had, on the contrary,
continuously endeavoured to bring the proceedings to an end
within a reasonable time. The failure by the District Authority
to complete the consolidation scheme within three years from the
provisional transfer, as provided for by Austrian law (see
paragraph 37 above), could not, the Government maintained,
prejudice the issue of the reasonableness of the length of
proceedings under Article 6 para. 1 (art. 6-1) of the Convention.
60. The Court accepts the Government's contention that failure
to abide by the time-limit prescribed by Austrian law does not
in itself contravene Article 6 para. 1 (art. 6-1) of the
Convention. In determining whether there was a breach of that
provision, it will have regard to its previous decisions in
similar cases (see, inter alia, the above-mentioned Erkner and
Hofauer judgment, ibid., p. 63, para. 69, and the above-mentioned
Poiss judgment, ibid., p. 105, paras. 58-59).
61. First of all, the competent agricultural authorities
initiated the consolidation process of their own motion in 1975
and were, accordingly, responsible for its conduct. After the
provisional transfer had been ordered on 13 October 1978 (see
paragraph 10 above), they were under a special duty - by reason
of the substantial legal effects of this measure - to act with
diligence, this obligation being, moreover, recognised by the
Austrian legislation (see paragraphs 37 and 41 above).
62. In the Court's opinion, the main feature of the present
case, which had a considerable influence on the progress of the
proceedings, is the amendment of the relevant area zoning plan
by the Hartkirchen municipal council on 16 November 1979. This
measure, which gave rise to the "dispute" on 10 August 1982,
upset the balance which had been struck between the different
landowners at the time of the provisional transfer and which had
then had their general approval. Since the enhancement in value
of the applicants' former plots had, under Austrian law, to be
taken into account in determining which compensatory parcels
should be allotted to them in the consolidation scheme (see
paragraph 37 above), the agricultural authorities had to
re-examine the land allocations contemplated in the draft plan
(see paragraphs 10 and 24 above). Moreover, the grant of
building permits to the provisional owners by the municipal
council aggravated the situation.
The above-mentioned developments led the municipal council to
propose a further amendment to the area zoning plan in order to
convert some of the compensatory plots allocated to the
applicants into building land (see paragraph 18 above).
According to the agricultural authorities and in particular the
Supreme Board (decision of 6 March 1985), the adoption of the
area zoning plan constituted a precondition for the final
approval of the consolidation scheme, because otherwise the
latter would have been defective from its adoption if it proved
to be inconsistent with the amended plan (see paragraphs 21 and
22 above).
The difficulties in this case thus stemmed from a lack of
coordination between the municipal and the agricultural
authorities, in finalising, respectively, the plan and the
scheme. Furthermore, the competent authorities had not provided
for remedies which would have ensured that the proceedings were
concluded within a reasonable time.
63. Finally, after the approval of the consolidation scheme on
16 July 1986, it took the agricultural authorities more than four
years to determine the applicants' appeals. The Government
stressed that intensive efforts were made during this period to
reach a friendly settlement with the applicants and the other
parties concerned, first before the District Authority
(20 October 1986 - 8 July 1987) and then before the Provincial
Board (28 September 1987 - 28 August 1989).
Without denying the utility of negotiations in this kind of case,
the Court considers that their duration on this occasion (almost
three years) exceeded what was reasonable, especially as regards
the period after the Provincial Board had noted the failure of
the discussions before the District Authority.
C. Conclusion
64. The Court accordingly concludes, having particular regard
to the difficulties occasioned by the lack of coordination
between the various authorities concerned, that the applicants'
case has not been determined within a reasonable time.
There has thus been a violation of Article 6 para. 1 (art. 6-1)
of the Convention.
II. ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)
A. Scope of the case as regards Article 1 of Protocol No. 1
(P1-1)
65. Before the Commission, Mr and Mrs Wiesinger alleged,
firstly, that they had been victims of an unlawful expropriation
of their land without adequate compensation and, secondly, that
they had suffered an unjustified interference with their property
rights pending the adoption of the final consolidation scheme.
They relied on Article 1 of Protocol No. 1 (art. P1-1) which
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."
66. In its decision of 10 July 1989 on the admissibility of the
application (see the Commission's report, p. 33, para. 3 in
fine), the Commission found that domestic remedies had not been
exhausted as regards the applicants' first complaint. It held,
on the other hand, that their second complaint could not be
rejected as being manifestly ill-founded.
67. Since the Court's jurisdiction is delimited by the
Commission's decision on admissibility (see, amongst many
authorities, the Powell and Rayner judgment of 21 February 1990,
Series A no. 172, p. 13, para. 29), the Court is not empowered
to entertain the applicants' first complaint. In fact, under
Austrian law, compensation is not fixed until after the
consolidation scheme has become final, a stage which has not yet
been reached in this case.
Accordingly, the Court will confine itself to examining the
second complaint.
B. Compliance with Article 1 of Protocol No. 1 (P1-1)
68. The applicants claimed that there had been an unjustified
interference with their right of property by reason of the
situation created by the provisional transfer ordered on
13 October 1978, especially when it became apparent that,
following the redesignation of their former agricultural land as
building plots in 1980, they had not received sufficient
compensatory parcels (see paragraphs 10 and 12 above). They had
not yet been able to alter this situation or to obtain financial
compensation.
69. According to the Government, on the other hand, the increase
in value of the relevant parcels, which occurred rather long
after they were voluntarily surrendered by the applicants, in no
way affected their right to the peaceful enjoyment of their
possessions. In the Government's opinion, there is no
interference with this right if, as in this case, the previous
owner's land allocation is not modified in the course of the
proceedings following the redesignation of his former land. Even
if there were such an interference, it would nevertheless be
justified, since a fair balance would have been struck between
the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental
rights. In this case, the interests relating to the
reorganisation of the agricultural pattern, underlying the land
consolidation proceedings, certainly warranted a certain amount
of interference with an individual's right of ownership.
70. The Court concurs with the Commission that there was an
interference with the applicants' right of property.
It is true that they - unlike the applicants in the Erkner and
Hofauer case and the Poiss case cited above (Series A no. 117,
p. 45, para. 13, and p. 89, para. 8) - expressly agreed to the
draft scheme, did not object to the provisional transfer,
accepted the plots, situated near their farm, which had been
provisionally allocated to them, and started cultivating them
(see paragraphs 9 and 10 above). This was, however, on the
assumption that all the plots concerned would remain agricultural
land. The redesignation of their former land by the local
authorities in 1980 (see paragraph 12 above) upset the initial
balance and added a new factor to the existing situation.
This was because section 14 of the 1979 Act required the
agricultural authorities to take any change in value of the kind
here in question into account when adopting the final
consolidation scheme (see paragraph 37 above). The land
allocations contained in the draft scheme and accepted by the
parties concerned were therefore no longer definitive and had to
be adapted to the new circumstances, as the applicants had
requested. In this connection it is to be noted that the revised
consolidation scheme contemplates that a part of the applicants'
former land will be returned to them (see paragraphs 24 and 27
above), although no final decision has yet been reached in this
respect.
It follows that, as from the redesignation of the land in 1980,
the situation is comparable to that in the Austrian cases
previously cited. The applicants have not so far obtained, by a
final decision, the compensation in kind stipulated by the
provincial legislation (see the above-mentioned Erkner and
Hofauer judgment, p. 65, para. 72).
71. It remains to be determined whether this interference
contravenes Article 1 of Protocol No. 1 (P1-1).
As regards the structure of this provision and the relationship
between its component parts, the Court refers to its long-
established case-law (see, as the most recent authority, the
Fredin judgment of 18 February 1991, Series A no. 192, p. 14,
para. 41).
72. In its view, the applicants have not been "deprived of their
possessions", within the meaning of the second sentence of the
first paragraph of Article 1 (P1-1). The transfer effected in
October 1978 is only provisional, and the applicants may still
recover at least part of their land (see paragraphs 24 and 27
above) when the consolidation scheme enters into force.
Again, the provisional transfer was essentially designed not to
restrict or control the "use" of the land (second paragraph of
Article 1) (P1-1), but to achieve an early restructuring of the
consolidation area with a view to improved, rational farming by
the "provisional owners" (see paragraph 36 above). The transfer
must therefore be considered under the first sentence of the
first paragraph of Article 1 (P1-1) (see, with regard to the same
matter, the above-mentioned Erkner and Hofauer judgment, Series A
no. 117, pp. 65-66, para. 74).
73. For the purposes of this provision, the Court must inquire
whether a proper balance has been struck between the demands of
the community's general interest and the requirements of
protecting the fundamental rights of the individual (ibid.,
p. 66, para. 75).
In this respect a temporary disadvantage sustained by an
individual, by reason of a measure taken in accordance with
domestic law, may in principle be justified in the general
interest, if it is not disproportionate to the aim sought to be
achieved by that measure.
74. According to the relevant legislation (see paragraph 32
above), the purpose of consolidation is to improve the
infrastructure and the pattern of agricultural holdings, by
redistributing the land and providing communal facilities. It
serves the interest of both the landowners concerned and the
community as a whole by increasing the rentability of holdings
and rationalising cultivation.
The applicants did not deny that the initial steps taken to
enforce the consolidation scheme were in the general interest.
In fact, they voluntarily surrendered their plots (see paragraph 10
above) and received in exchange the plots which, according to
the Administrative Court (see paragraph 20 above), they wanted.
As from 1978 they started cultivating these plots as they wished.
Furthermore, it appears that the draft scheme also received
almost general approval on the part of the landowners concerned.
75. The applicants, however, claimed that, because of the
subsequent designation of their former land as building plots,
the agricultural consolidation proceedings lost their initial
legitimate purpose.
76. In this respect, the Court notes firstly that the
consolidation scheme covered approximately 172 hectares owned by
at least 67 persons, of which only about 2.5 - belonging to the
applicants - were the object of any dispute (see paragraphs 9 and
12 above).
Secondly, in its decision of 17 November 1983 (which was upheld
by the Constitutional and Administrative Courts), the Provincial
Board considered that, in order to attain its objective, the
scheme had to include the plots in question, notwithstanding
their redesignation as building land (see paragraphs 15 and 16
above). In a subsequent decision of 18 November 1984, the same
Board noted that the provisional transfer of the plots precluded
altering their allocation for the time being, without prejudice
to the final distribution of the land under the scheme (see
paragraph 18 above).
The Court considers that these decisions, taken in accordance
with Austrian law, cannot be regarded as inadequate and
disproportionate. The main purpose of a provisional transfer,
namely to ensure that the consolidation area is continuously and
rationally cultivated during the interim period (see paragraph 36
above), would be upset if repeated changes were allowed. The
Court recognises that in determining what measures were necessary
in the general interest, the Austrian agricultural authorities,
being in direct contact with the local situation, enjoyed a
margin of appreciation (see, mutatis mutandis, amongst other
authorities, the above-mentioned Fredin judgment, Series A
no. 192, p. 17, para. 51), provided that the requisite fair
balance was struck (see paragraph 73 above).
77. The Commission considered that, although the maintenance of
the situation complained of might have been justified for a
limited time, here the period was excessive.
The Court observes that, as in the Erkner and Hofauer case and
in the Poiss case, the interference complained of by the
applicants has continued over a long period. However, the
Court's ruling on the alleged breach of Article 6 para. 1 (art. 6-1)
of the Convention in this case (see paragraph 64 above) is
not conclusive as to the issue under the Protocol. The latter
issue concerns the substance of the right of property and cannot
be determined solely in the light of the duration of the
situation; other elements are also relevant (see, mutatis
mutandis, the above-mentioned Erkner and Hofauer judgment, Series
A no. 117, p. 66, para. 76).
78. In particular, it must be recalled once again that Mr and
Mrs Wiesinger agreed to the provisional transfer, and accepted
and exploited the compensatory parcels (see paragraph 70 above).
The situation changed after the amendment to the area zoning plan
in 1980 and the grant of building permits. The applicants,
however, did not manifest their disagreement until 10 August 1982.
After their appeal of 23 August 1983, the Provincial Board
ordered the District Authority, on 17 November 1983, not to
authorise any further conversion into building land or any
further issue of building permits (see paragraph 15 above).
Having regard to the provincial legislation (see paragraph 76
above) and to the date of the applicants' appeal, the Provincial
Board can be said to have reacted promptly with regard to this
specific matter.
Furthermore, as from 16 July 1986, the District Authority
reallocated to the Wiesingers in the consolidation scheme
9,680 square metres of their former land and the Provincial Board,
after the failure of friendly settlement negotiations, again
improved their position in January 1990 (see paragraphs 24 and
27 above). It is therefore still possible that some of the
applicants' former land may be returned to them when the scheme
is definitively approved.
In all these respects, the situation in issue here is at variance
with that pertaining in the previous Austrian cases.
79. Having regard to all the circumstances of the case, the
Court considers that the interference with the applicants' right
of property cannot be held to be disproportionate to the demands
of the general interest involved in the consolidation
proceedings.
Accordingly, no violation of Article 1 of Protocol No. 1 (P1-1)
has been established.
III. ALLEGED BREACH OF ARTICLE 14 OF THE CONVENTION, TAKEN IN
CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 (art. 14+P1-1)
80. The applicants also alleged before the Commission that they
had been the victims of discrimination contrary to Article 14 of
the Convention, taken in conjunction with Article 1 of Protocol
No. 1 (art. 14+P1-1), in that they had been treated less
favourably than the provisional owners of their former land.
However, they did not pursue the matter as a separate issue
before the Court and it sees no reason to examine it.
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
81. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
Mr and Mrs Wiesinger sought compensation for pecuniary and
non-pecuniary damage, together with reimbursement of their costs
and expenses, both in Austria and before the Convention
institutions.
A. Pecuniary damage
82. The applicants firstly claimed 2,104,700.66 Austrian
schillings in respect of arrears of interest on a loan which they
had obtained from the Hartkirchen Savings Bank in order to carry
out urgent improvements to their property. Since they had not
been able to have their former plots withdrawn from the
consolidation scheme and sold, it had not been possible for them
to repay the loan and the corresponding interest.
However, as the Government rightly pointed out, these debts were
not incurred in connection with the consolidation proceedings,
but in order to undertake repairs to their farm and stables.
There is accordingly no causal link between the violation of
Article 6 para. 1 (art. 6-1) found by the Court and the alleged
damage.
83. The applicants further sought 6,600,000 schillings by way
of compensation for the difference in value between the
agricultural land they had received and the building land they
had surrendered.
The Court notes, however, that the question of compensation for
the increase in value of the applicants' former land is outside
the scope of the case, as declared admissible by the Commission
(see paragraphs 65-67 above). No award can thus be made in this
connection.
B. Non-pecuniary damage
84. The applicants alleged that Mr Wiesinger's health had been
affected for some years because of the consolidation proceedings
in issue. He claimed 240,000 schillings as damages in respect
of the ensuing diminished capacity for work from 1986 to 1990,
and 600,000 schillings for the next ten years until his
retirement.
In the Government's submission, however, the existence of a
causal link between the damage to Mr Wiesinger's health and the
consolidation proceedings had not been established.
85. The Court does not exclude the possibility that the
excessive length of those proceedings caused Mr Wiesinger some
stress and anxiety.
As this type of prejudice is not susceptible of precise
quantification, the Court, making an assessment on an equitable
basis, as required by Article 50 (art. 50), awards Mr Wiesinger
200,000 schillings under this head.
C. Costs and expenses
86. The applicants sought the reimbursement of their costs and
expenses in Austria, totalling 1,336,030.36 schillings. This sum
comprises 1,252,802.10 schillings for their counsel's fees before
the agricultural authorities and the Constitutional and
Administrative Courts, 56,909.52 schillings for the proceedings
seeking an injunction to stop construction work on their former
land, 20,571.24 schillings for the costs that they were ordered
to pay to the respondents in those proceedings and 5,747.50 schillings
for the costs incurred in extra-judicial proceedings.
For their costs before the Convention institutions they claimed
the sum of 445,056 schillings.
87. The Government offered a lump sum of 100,000 schillings for
the costs concerning the domestic proceedings since, they
maintained, a very large number of the applicants' objections and
appeals had been dismissed on procedural grounds. They also
agreed to reimburse the amount of 130,000 schillings for the
costs incurred in Strasbourg.
The Delegate of the Commission invited the Court to find a fair
intermediate solution.
88. According to the Court's case-law, in order to be the
subject of an award costs and expenses must have been actually
incurred, necessarily incurred and reasonable as to quantum.
The Court notes, with respect to the costs in Austria, that the
applicants' request of 10 August 1982 (see paragraph 13 above)
must be considered as a preliminary step to the main proceedings.
Likewise, the application to the Provincial Board on
17 January 1984 had the specific purpose of accelerating the
adoption of the consolidation scheme (see paragraphs 21 and 57
above). Furthermore, it cannot be excluded that the excessive
length of the main proceedings, and in particular of the
negotiations for a friendly settlement (see paragraphs 62 and 63
above), increased the costs incurred therefor.
As to the costs incurred in Strasbourg, the applicants had the
benefit of legal aid before the Commission and the Court, but
neither the Government nor the Commission disputed that they had
incurred additional costs.
The amounts claimed are, however, too high, when related to the
particular breach found.
89. Having regard to these circumstances, the Court, on an
equitable basis, awards 300,000 schillings for the costs and
expenses in Austria and 200,000 schillings for those before the
Commission and the Court.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of
Article 6 para. 1 (art. 6-1) of the Convention;
2. Holds by eight votes to one that there has been no
violation of Article 1 of Protocol No. 1 (P1-1);
3. Holds unanimously that it is not necessary to examine the
complaint under Article 14 of the Convention, taken in
conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1);
4. Holds unanimously that the Republic of Austria is to pay,
within three months, 200,000 (two hundred thousand)
Austrian schillings to Mr Wiesinger for non-pecuniary
damage and 500,000 (five hundred thousand) schillings to
both applicants for costs and expenses;
5. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 30 October 1991.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
separate opinion of Mr Cremona is annexed to this judgment.
Initialled: J. C.
Initialled: M.-A. E.
PARTLY DISSENTING OPINION OF JUDGE CREMONA
Whilst I am in agreement with the judgment on the Article 6 para. 1
(art. 6-1) issue, I regret that I am unable to agree with the
conclusion reached by the majority of my colleagues on the issue
under Article 1 of Protocol No. 1 (P1-1). In finding, like the
unanimous Commission, a violation also under this head, I
consider it sufficient, for the sake of brevity, to say that in
general I adopt in this regard the reasoning of the Commission
in its report.
In particular, inasmuch as this case has been distinguished by
the majority from that of Erkner and Hofauer I would simply add
this. In this connection the judgment stresses that the
applicants in the present case, unlike those in the other case,
had agreed to the provisional transfer and accepted the
compensatory plots (paragraph 77). Inasmuch as the implication
is that only later did they change their minds, I think it is
much fairer to say that what really happened is that they had
their minds changed for them by something quite remarkable.
Land which in their hands as owners was simply agricultural was
in the course of the consolidation proceedings redesignated by
the local authorities, in the hands of the provisional owners to
whom it had been allotted and at their request, as building land.
In fact the applicants saw these provisional owners sell various
plots of this land at a very handsome profit (the grant of
building permits made the situation practically irreversible)
without their being able to see this imbalance put right.
Incidentally, it is also to be noted that when the applicants for
their part requested authorisation to construct two animal feed
silos on their compensatory plots the authorities refused on the
ground that they were provisionally owners of the land in
question (paragraph 29).
Admittedly the reallocation to the applicants of part of their
former land and the hypothetical possibility that some more may
possibly be returned to them when the consolidation scheme is
eventually definitely approved (paragraph 77) may to some extent
alleviate the position, but to my mind do not cure it.
The fact remains that there was an unjustified interference with
the applicants' property which has already lasted eleven and a
half years without their having been able to obtain redress.
Like the unanimous Commission, I therefore consider that the
applicants have thereby suffered more than a temporary
disadvantage which parties to consolidation proceedings can
reasonably be expected to sustain, that there was no appropriate
balance between the measures taken in the public interest and the
protection of the applicants' right of property and that they had
to bear a disproportionate burden incompatible with their right
to the peaceful enjoyment of their possessions.