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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PRÖTSCH v. AUSTRIA - 15508/89 [1996] ECHR 57 (15 November 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/57.html
Cite as: (2001) 32 EHRR 12, [1996] ECHR 57
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In the case of Prötsch v. Austria (1),
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 Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr I. Foighel,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr B. Repik,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 28 June and 22 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 67/1995/573/659. 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.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by the Government of the
Republic of Austria ("the Government") on 18 August 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 15508/89) against Austria lodged with the European Commission of
Human Rights ("the Commission") under Article 25 (art. 25) on
12 June 1989 by two Austrian nationals, Mr Ludwig and
Mrs Maria Prötsch.
The Government's application referred to Article 48 (art. 48).
The object of the application 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 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicants stated that
they wished to take part in the proceedings and designated the lawyer
who would represent them (Rule 31).
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. 4 (b)). On 5 September 1995, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr I. Foighel, Mr R. Pekkanen,
Sir John Freeland, Mr M.A. Lopes Rocha, Mr B. Repik and Mr P. Jambrek
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently, Mr L. Wildhaber, substitute judge, replaced Mr Pekkanen,
who was unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicants' lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant
to the order made in consequence, the Registrar received the
Government's memorial on 20 March 1996. On 22 May 1996 the applicants
filed claims for just satisfaction under Article 50 of the Convention
(art. 50).
On 3 June 1996 the Commission produced various documents from
the proceedings before it, as requested by the Registrar on the
President's instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 June 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr F. Cede, Ambassador, Legal Adviser,
Federal Ministry of Foreign Affairs, Agent,
Mr D. Hunger, Federal Ministry of Agriculture
and Forestry,
Ms I. Siess, Constitutional Department,
Federal Chancellery,
Ms E. Bertagnoli, International Law Department,
Federal Ministry of Foreign Affairs, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicants
Mr E. Proksch, Rechtsanwalt, Vienna Bar, Counsel.
The Court heard addresses by Mr Weitzel, Mr Proksch and Mr Cede
and also replies to its questions.
AS TO THE FACTS
I. Particular circumstances of the case
6. The applicants are Austrian citizens and own a farm at
Niederthalheim, Upper Austria.
A. The consolidation measures
7. Agricultural land-consolidation proceedings
(Zusammenlegungsverfahren) under the Upper Austria Agricultural Land
Planning Act (Flurverfassungs-Landesgesetz - see paragraph 20 below)
were instituted by the Gmunden District Agricultural Authority
(Agrarbezirksbehörde - "the District Authority") in 1972. They
concerned 153 landowners and covered some 606ha. The valuation
(Bewertungsplan - see paragraph 23 below) was adopted in December 1978
without opposition from the interested parties. On 7 October 1980 the
District Authority ordered the provisional transfer of the
compensatory parcels (Grundabfindungen) on the basis of a
draft consolidation scheme (Neueinteilungsplan - see paragraph 25
below). An appeal lodged by the applicants against this order was
rejected by the Upper Austria Land Reform Board (Landesagrarsenat -
"the Upper Austria Board") on 24 April 1981.
8. The consolidation scheme (Zusammenlegungsplan -
see paragraph 26 below) was published in October 1983 and, in its
essence, confirmed the situation created by the provisional
transfer order.
9. On 24 May 1984, following an appeal from the applicants, the
Upper Austria Board held that the parcels allotted to the applicants
were of approximately the same value as the old ones. 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 yield of their compensatory parcels was below that of the
applicants' former property. On the contrary, it held that, on the
whole, the agricultural performances under the new situation were at
least as good as under the old one and dismissed the bulk of the
applicants' arguments. However, with reference to a plot measuring
2.2ha (plot no. 4738), the Board held that while not illegal its
configuration could be rendered more functional (zweckmäßiger). It
therefore quashed the part of the consolidation scheme concerning that
plot and ordered that the District Authority re-examine the issue. The
applicants appealed against this decision.
10. On 3 April 1985 the Supreme Land Reform Board
(Oberster Agrarsenat - "the Supreme Board") quashed the decision of
24 May 1984 and referred the case back to the Upper Austria Board
following the applicants' argument that the appeal could not be partly
dismissed, as the applicants' claims for compensatory parcels were an
indivisible whole. It further held, inter alia, that the question of
lawfulness (Gesetzmäßigkeit) also included considerations of
functionality.
11. On 11 July 1985, in compliance with the Supreme Board's
decision, the Upper Austria Board set the consolidation scheme aside.
The Board again pointed out that it did not share the opinion expressed
in the private expert opinion submitted by the applicants. It
established that the compensatory parcels attributed to the applicants
were, on the whole, more advantageous, but that they also contained
some negative aspects.
The advantages were (a) the reduction of the splitting up of
the plots and the resulting increase in the average size of the plots;
(b) the reduction of the length of boundaries and the concomitant
abolition of unproductive plots; (c) a better balance between length
and width of the plots; and (d) better access.
The negative aspects were (e) the diminution of the average
comparative values of the parcels (by 2.3%); (f) the increase of
average distance from the farm (by 2%); (g) the slight increase of
forest border; (h) the inappropriate configuration of plot no. 4733;
(i) the hook-like form of plot no. 4738 and the circuit line pylons on
this plot part of which was unproductive.
12. The Board concluded that the lawfulness of the compensatory
measures was still in question. The file was referred to the
District Authority for the adoption of a new scheme.
13. In January 1986 the District Authority published a new
consolidation scheme. The applicants also appealed against this
scheme. Although they were now in agreement with the new land
allocation, they demanded that the boundaries of one of their plots be
straightened (Grenzbegradigung) and that their share in the costs of
communal measures and facilities - 95,000 Austrian schillings (ATS) -
(see paragraph 24 below) - be scrapped or reduced to a minimum.
14. On 18 September 1986, the Upper Austria Board dismissed the
applicants' appeal. It observed that the number of plots in the
applicants' possession had been reduced from seventeen to nine, whilst
the difference in value between the new and the old land did not even
attain 1%, well below the statutory maximum of 20%. All in all, the
consolidation measures had led to an increase in productivity which
compensated for certain small disadvantages.
The applicants lodged a complaint with the Constitutional Court
(Verfassungsgerichtshof), which, in summary proceedings, refused to
deal with the complaint and referred the case to the
Administrative Court (Verwaltungsgerichtshof) which, in its turn,
decided to discontinue the proceedings for procedural reasons in
February 1988.
B. The application for financial compensation
15. On 26 January 1988 Mr and Mrs Prötsch had applied for
financial compensation in respect of the damages allegedly caused to
them by the fact that they had received insufficient
compensatory 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
ATS 210,000 between 1980 and 1987.
16. On 22 February 1988 the 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 suffered in the period between the provisional
transfer and the assignment of lawful compensatory parcels by the
final consolidation scheme (see paragraph 27 below). In addition, the
agricultural authorities were only competent to decide on facts
concerning the implementation of the consolidation.
17. The applicants' appeal to the Upper Austria Board was dismissed
on 7 July 1988 on the ground that there was neither a legal nor a
factual basis for a claim for financial compensation in their 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 paragraph 11 above). Although the original
consolidation scheme had 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 17ha of compensatory parcels allotted to the
applicants only the configuration of one measuring some 2.2ha
(no. 4738) was objectionable. On the other hand, the applicants had
also gained certain advantages. Therefore the Board maintained the
opinion already expressed in its earlier decisions that the applicants
had not suffered any damage as far as yield and exploitation conditions
were concerned.
18. The applicants challenged this decision before the
Administrative Court alleging that the authorities had the duty to
apply the provisions of the civil law. The Administrative Court,
however, found that the administrative authorities were not competent
to decide on compensation claims of a civil-law nature and dismissed
the complaint on 27 September 1988.
19. The applicants lodged a complaint with the Constitutional Court
invoking Article 6 of the Convention (art. 6) and Article 1 of
Protocol No. 1 (P1-1). The Constitutional Court considered that in the
light of its constant case-law the complaint did not have any prospects
of success and, on 28 February 1989, refused to deal with it. In
summary proceedings it observed, inter alia, that the facts in the
applicants' case were different from those in the case of
Erkner and Hofauer v. Austria (judgment of 23 April 1987, Series A
no. 117 - see paragraph 38 below) in that the consolidation scheme had
already been published and that the applicants had never complained of
the unreasonable length of the proceedings.
II. Relevant domestic law and practice
A. Agricultural legislation
1. The consolidation of agricultural land
20. The basic rules applying to the consolidation of
agricultural land, as applicable to the present case, are embodied in
the Federal Agricultural Land Planning (General Principles) Act
(Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. Each Land
has enacted its own agricultural and land planning legislation
(Flurverfassungs-Landesgesetze) to regulate the matters of its
competence within the federal framework.
In the Land of Upper Austria, consolidation is governed by the
Agricultural Land Planning Act 1979 ("the 1979 Act").
21. 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:
(a) initial proceedings;
(b) ascertainment of the occupiers of the land in question and
assessment of its value;
(c) planning of communal measures and facilities;
(d) provisional transfer of land, where appropriate;
(e) adoption of the consolidation scheme.
None of these stages may begin until the previous stage has
been terminated with a final decision.
22. The initial proceedings, which the authorities institute of
their 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). 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).
23. 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.
24. Communal measures (such as soil improvement, alterations to
terrain or landscape) and communal facilities (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.
25. Under section 22 of 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 Land Board (Landesagrarsenat), except
in cases where an appeal lies to the Supreme Board (Oberster Agrarsenat
- see paragraph 30 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 scheme (Eigentum unter auflösender Bedingung,
section 22 (2)). This provisional, conditional ownership is, as a
rule, not entered in the land register since 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.).
26. 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 1950/1974 Federal Act), failing which the person
concerned may request the higher authority to assume jurisdiction. The
adoption of the scheme 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:
(a) 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;
(b) 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);
(c) 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));
(d) claims for financial compensation have to be submitted
within six months from the date on which the consolidation scheme
becomes final (section 20 (6)).
27. The legislation of the Länder did not at the material time
provide for any financial compensation for damage suffered, before a
final consolidation scheme came into force, by landowners who had
successfully challenged the lawfulness of compensation received through
transfer of land.
28. Following the judgments of the European Court of Human Rights
of 23 April 1987 in the cases of Erkner and Hofauer cited above and
Poiss v. Austria (Series A no. 117), Austrian legislation has been
amended to the effect, inter alia, that, once it is found that
compensatory parcels were not lawfully allocated, the concerned parties
may apply for financial compensation (section 10 (5) to (7) of the
Federal Agricultural Land Planning (General Principles) Act). The new
legislation came into force on 1 January 1994.
2. The agricultural authorities
29. The first-instance authority in Upper Austria is the
District Agricultural Authority, which is a purely administrative body.
The higher authorities are the Upper Austria Land Reform Board,
established at the Office of the Land Government (Amt der
Landesregierung), and the Supreme Land Reform 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".
30. Decisions of the District Authority can be challenged by way
of appeal to the Land 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 the 1950/1974 Federal Act and
Article 12 para. 2 of the Federal Constitution).
31. Procedure before the land-reform boards is governed by the
1950/1974 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 1950/1974 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 1950/1974 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 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. Appeals to the Constitutional Court and the
Administrative Court
32. The decisions of land-reform boards can be challenged in the
Constitutional Court which will determine, inter alia, whether there
has been any infringement of the applicant's rights under the
Constitution (Article 144 of the Federal Constitution).
33. 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 or a breach by a competent authority of its
duty to make a decision. It also hears appeals against decisions of
boards whose members include judges - such as the land-reform boards
(see paragraph 29 above) - where such jurisdiction is conferred on it
by statute.
PROCEEDINGS BEFORE THE COMMISSION
34. Mr and Mrs Prötsch applied to the Commission on 12 June 1989.
They relied on Article 1 of Protocol No. 1 (P1-1), complaining of the
impossibility of obtaining compensation in respect of temporary
disadvantages which they allegedly suffered in connection with
agricultural land-consolidation proceedings. They further complained,
under Article 6 of the Convention (art. 6), that the Land Reform Board
lacked impartiality.
35. On 31 August 1994 the Commission declared the application
(no. 15508/89) admissible as far as the complaint under Article 1 of
Protocol No. 1 (P1-1) was concerned. In its report of 5 April 1995
(Article 31) (art. 31) it expressed the opinion, by nine votes to two,
that there had been a violation of that provision (P1-1). The full
text of the Commission's opinion and of the dissenting opinion
contained in the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1996-V),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
36. At the hearing, the applicants requested the Court to hold that
in the present case Austria had acted in violation of Article 1 of
Protocol No. 1 (P1-1).
The Government, for their part, asked the Court to conclude
that the interferences with the applicants' property rights could not
be regarded as unreasonable in the light of the requirements of the
general interest on which consolidation proceedings are based and that,
therefore, there were no grounds to assume that a breach of Article 1
of Protocol No. 1 (P1-1) had taken place.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
37. Mr and Mrs Prötsch complained that their inability to obtain
financial compensation for the loss of yield from the compensatory
parcels provisionally allocated to them was in violation of Article 1
of Protocol No. 1 (P1-1), which reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions (P1-1) 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 agreed with the applicants' claim whereas the
Government, whilst accepting that there had been an interference with
the applicants' right of property, contested the claim.
38. The applicants alleged that, as a result of the
provisional transfer arrangements (see paragraph 7 above), they had
been allotted land of less value than that which they had previously
held and that, in consequence, they had suffered a yearly loss in the
region of ATS 30,000 for a period of seven years, their total loss
therefore amounting to ATS 210,000. They emphasised that this damage
was only imputable to the lesser yield of the parcels provisionally
allocated to them.
The applicants further submitted that, at the material time,
the legislation did not provide for financial compensation in respect
of damage suffered (see paragraph 27 above). Although
legislative changes have now been introduced (see paragraph 28 above),
these only came into force in January 1994. Accordingly, as far as the
applicants' rights for financial compensation were concerned, the
situation was identical to that obtaining in the cases of
Erkner and Hofauer v. Austria and Poiss v. Austria (judgments of
23 April 1987, Series A no. 117), where the Court had found a violation
of Article 1 of Protocol No. 1 (P1-1).
39. In the Commission's view, the applicants' case differed very
little from the other land-consolidation cases mentioned in the
preceding paragraph. Although in the present case the time that
elapsed between the provisional transfer of land and the coming into
force of the consolidation scheme was considerably shorter, the
Commission considered that a period of six years, in a situation where
no action for compensation was open to the applicants, still imposed
on them an individual and excessive burden which was contrary to the
Convention.
At the hearing, the Delegate of the Commission submitted that
the present case was distinguishable from that of Wiesinger v. Austria
(judgment of 30 October 1991, Series A no. 213), in that, unlike
Mr and Mrs Prötsch, the applicants in the Wiesinger case had
voluntarily joined the consolidation proceedings and had not opposed
the provisional transfer (p. 25, para. 70).
40. The Government denied that the applicants ever suffered any
material damage as a result of the provisional transfer. Therefore,
the question whether the applicants were able to bring an action for
compensation was wholly irrelevant in this case. They further
contended that, in the light of the requirements of the
general interest on which consolidation proceedings are based, a period
of six years cannot be considered unreasonable, particularly when
regard is had to the highly complex questions that the
Austrian authorities had to examine.
41. In interpreting Article 1 of Protocol No. 1 (P1-1), the Court
refers to its long-established case-law (see, among many other
authorities, the Pressos Compania Naviera S.A. and Others v. Belgium
judgment of 20 November 1995, Series A no. 332, pp. 21-22, para. 33).
42. The transfer of land - whose lawfulness the applicants
contest - could not amount, by the very essence of its provisional
nature, to a "deprivation of possessions", within the meaning of the
second sentence of the first paragraph of Article 1 (P1-1-1). Again,
this provisional transfer was essentially designed not to restrict or
control the "use" of the land (second paragraph of Article 1) (P1-1-2),
but to achieve an early restructuring of the consolidation area with
a view to improved, rational farming by the "provisional owners"
(see paragraph 25 above). The transfer must therefore be considered
under the first sentence of the first paragraph of Article 1 (P1-1-1)
(see, on this point, the above-mentioned Wiesinger judgment, p. 26,
para. 72).
43. For the purposes of this provision (P1-1-1), 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.
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
(ibid., p. 26, para. 73).
44. According to the relevant legislation (see paragraph 21 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 interests of both the
landowners concerned and the community as a whole by increasing the
profitability of holdings and rationalising cultivation (see the
above-mentioned Wiesinger judgment, p. 26, para. 74). This has not
been challenged by the applicants, who have concentrated their claim
on the inadequate way in which the provisional transfer process was
carried out and on its allegedly unreasonable length.
45. As to the alleged inadequacy of those procedures which - in the
applicants' submission - resulted in a decreased productivity of the
compensatory parcels allocated to them and ensuing financial damage,
the Court observes that it was open to Mr and Mrs Prötsch to contest
the lawfulness of that allocation once the consolidation scheme was
published. Indeed, they used this possibility and filed an appeal in
October 1983 against the original consolidation scheme. The thrust of
their complaints was rejected by the Upper Austria Board on the ground,
inter alia, that the parcels allotted to the applicants were of
approximately the same value as their former holdings and that, on the
whole, the agricultural performances under the new situation were at
least as good as under the old one. It is to be noted that the Board
only accepted that the configuration of a relatively small plot (2.2ha)
should be re-examined by the District Authority with a view to making
it more functional (see paragraph 9 above).
In January 1986, the applicants filed a fresh appeal against
the amended consolidation scheme. The Upper Austria Board dismissed
it by holding, inter alia, that the number of plots in the applicants'
possession had been reduced from seventeen to nine, while the
difference in value between the new and the old land did not even
attain 1%. It further held that, all in all, the consolidation
measures had led to an increase in productivity which compensated for
certain small disadvantages (see paragraph 14 above).
46. Concerning the length of the consolidation proceedings, the
Court notes that the facts in issue are clearly distinguishable from
those in the cases of Erkner and Hofauer and Poiss (cited above at
paragraph 38). Whereas in those cases the consolidation scheme had not
yet been finally adopted at the time of the Court's ruling - the
provisional transfer of parcels having lasted for an extensive period
of time -, in the present case a first consolidation scheme was
published only three years after the provisional transfer was effected
(see paragraph 8 above). Following an appeal by Mr and Mrs Prötsch,
a final scheme - including some improvement in respect of the
applicants - came into force three years later (see paragraph 13
above). The status of provisional transfer was therefore maintained
for a total of six years, well below the periods endured by the
applicants in the above-mentioned cases (between sixteen and
twenty-four years). In these circumstances, having regard to the
statutory aim of the provisional transfer, a period of six years cannot
be considered, in itself, to be unreasonably long.
47. Furthermore, the Court notes that the domestic authorities were
able to examine the applicants' allegations of damage resulting from
the provisional allocation of land which essentially corresponded to
the situation arising from the consolidation scheme (see paragraph 8
above). Their conclusion was invariably that the applicants had
suffered no damage as a result of the consolidation measures
(see paragraphs 9 and 11 above). On the contrary, they singled out
some clear advantages, such as the substantial reduction in the number
of plots exploited by the applicants.
48. Having regard to all the circumstances mentioned above, 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 1 of
Protocol No. 1 (P1-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 15 November 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar