POISS v. AUSTRIA - 9816/82 [1987] ECHR 8 (23 April 1987)

judgment of 22 October 1984, Series A no. 84, p. 17, § 34), so that Article 6 § 1 (art. 6-1) applies in the instant case; the Government, moreover, conceded this. 2. Compliance with Article 6 § 1 (art. 6-1) (a) "Independent and impartial tribunal" - "public hearing" 49. Before the Court, the applicants cited the fact that the hearings before the land reform boards were not held in public, and they contended that the boards were not independent and impartial. As regards the latter contention, they relied on the organisational charts of the Federal Ministry of Agriculture and Forestry and the Office of the Provincial Government of Lower Austria to point to the existence of hierarchical links between the civil-servant members, the participation in the vote by civil servants responsible for preparing expert opinions, and the short term of office (five years). These were new complaints. They were not raised as such before the Commission and were not based on the facts as found by the Commission within the framework fixed by its decision on admissibility. That being so, the Court has no jurisdiction to entertain them (see in particular, mutatis mutandis, the Bozano judgment of 18 December 1986, Series A no. 111, p. 27, § 62). (b) "Reasonable time" (i) Period to be considered 50. In civil proceedings, the "reasonable time" referred to in Article 6 § 1 (art. 6-1) normally begins to run from the moment the action was instituted before the "tribunal" (see, as the most recent authority, the Deumeland judgment of 29 May 1986, Series A no. 100, p. 26, § 77), and in the instant case there is nothing in the evidence adduced which would lead the Court to hold that the dispute ("contestation") arose at any earlier date. As to the close of the period to be taken into consideration, the Government argued before the Commission that the determination of civil rights as mentioned in Article 6 § 1 (art. 6-1) does not necessarily imply a final judgment. They maintained that there had been an initial provisional determination of the parcels of land to be allotted to the applicants and then an adjustment whereby the applicants became entitled to better compensation. Like the Commission, the Court is not convinced by this argument. It has consistently held in relation to the application of Article 6 § (art. 6-1) that the period whose reasonableness falls to be reviewed takes in the entirety of the proceedings in issue, including any appeals (see, inter alia, the above-mentioned Deumeland judgment, ibid.). That period accordingly extends right up to the decision which disposes of the dispute ("contestation") (see the Guincho judgment of 10 July 1984, Series A no. 81, p. 13, § 29). 51. In the instant case there were two phases in the proceedings. 52. The first phase began between 27 and 30 September 1965 when the applicants appealed against the consolidation plan of 1 September (see paragraph 8 above). It ended on 23 May 1972, when they received notification of the Constitutional Court's judgment of 24 February (ibid.). The proceedings in the Constitutional Court are material, because although that Court had no jurisdiction to rule on the merits, its decision was nonetheless capable of affecting the outcome of the dispute (see the above-mentioned Deumeland judgment, ibid.). The first phase therefore lasted six years, seven months and twenty-three days (30 September 1965 - 23 May 1972). 53. In the Commission's view, the second phase began on 1 October 1975, when the Supreme Board agreed to reopen the proceedings (see paragraph 10 above). The Court is not of the same opinion. It considers it must take the relevant date as being 6 September 1974, when the applicants requested the reopening of proceedings, challenging - on the basis of the zoning plan of 7 September 1971 - the valuation of some of their former land (ibid.). This second phase is still under way; it has already lasted more than twelve and a half years (6 September 1974 - 24 March 1987). 54. Consequently, the total length of time to be considered amounts to more than nineteen years. (ii) Relevant criteria 55. The reasonableness of the length of proceedings is to be assessed according to the particular circumstances and having regard to the criteria stated in the case-law of the Court, especially the degree of complexity of the case, the applicants' behaviour and the conduct of the relevant authorities (see, inter alia, the Buchholz judgment of 6 May 1981, Series A no. 42, pp. 15-16, § 49, and the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 11, § 24). 56. Any land consolidation is by its nature a complex process. Usually - and quite legitimately - the proper valuation of parcels of land to be surrendered and to be received in exchange is at the forefront of the landowners' concerns. The difficulties inherent in such an assessment are often exacerbated by farmers' traditional attachment to their fields and meadows. Furthermore, the operation is designed to increase the profitability of holdings and develop the infrastructure of the area concerned; it therefore affects the interests not only of individuals but also of the community as a whole. The consolidation in dispute concerned 530 people, including 428 landowners (see paragraph 8 above). As early as September 1965, the applicants asserted that some of their former parcels of land consisted of building land, of greater value than the compensatory plots (ibid.). This was essentially a question of fact, to be resolved by obtaining relevant information such as whether a zoning plan existed and what was the area of the parcels of land, their use, geographical situation and so forth. After the successful appeals by the Poiss family, however, the appropriate authorities were under a duty to draw up a new plan. No doubt they were not obliged to start completely afresh, but it was necessary for them first to give each of the landowners concerned a hearing. As the Government pointed out, this task must have been all the more difficult as, at the time the proceedings were reopened, the first plan had been in force for about three years and four months (23 May 1972 - 1 October 1975: see paragraphs 8 and 10 above). In these circumstances, the application of the law appears to have raised issues of fact of considerable complexity. 57. In the Government's submission, the applicants bear some responsibility for the delays of which they complain: they took advantage of every avenue of appeal available to them, even those without any real prospect of success, and did everything possible - particularly after they had lodged their petition with the Commission - to prolong the proceedings in Austria. In particular, the Government claimed that they were wrong to apply several times to a higher body, thereby interrupting the work of the lower authority. The Court does not accept this submission. It points out, in the first place, that it has consistently held that applicants cannot be blamed for making full use of the remedies available to them under domestic law (see, mutatis mutandis, the Eckle judgment of 15 July 1982, Series A no. 51, p. 36, § 82). In the instant case, as the Commission rightly pointed out, the remedies resorted to were mostly successful (see paragraphs 10, 12, 14, 19, 20, 21 and 22 above). As for the applications seeking rulings from the higher authority instead of the one having jurisdiction at lower instance, the law allowed the applicants to make these once six months had elapsed (see paragraph 41 above). In each case they in fact waited longer - eight months, three weeks; approximately eight months; and nine months, eighteen days (see paragraphs 12, 17 and 21 above) - and all these appeals were successful. The applicants' behaviour, in itself legitimate, nonetheless constitutes an objective fact which cannot be attributed to the respondent State and which must be taken into account for the purpose of determining whether or not the reasonable time referred to in Article 6 § 1 (art. 6-1) has been exceeded (see, mutatis mutandis, the above-mentioned Eckle judgment, ibid.). 58. As to the competent authorities, the Court notes that, in accordance with the law, they had initiated the consolidation process of their own motion and that they were responsible for the conduct of it (see paragraphs 28 and 41 above). Further and more particularly, they had decided as early as April 1963 on a provisional transfer of the land concerned (see paragraph 8 above). They were accordingly under a special duty to act expeditiously. The Austrian legislature, moreover, itself recognises the existence of such an obligation: it has retained in relation to land-consolidation proceedings the general rule that a decision must be made within six months (see paragraph above) and in 1977 enacted a provision whereby consolidation plans must be published at the latest three years after a final decision on provisional transfer (see paragraph 33 above). 59. The applicants have not complained specifically about the length of the initial proceedings (six years, seven months and twenty-three days - see paragraph 52 above). Although this was a not inconsiderable period - especially having regard to the fact that land had been provisionally transferred in April 1963 -, it was doubtless substantially accounted for by the circumstances of the case, which the authorities were having to deal with for the first time. The same does not apply, however, to several periods of time in the second phase. In the first place, the Supreme Board took fifteen months and ten days to reopen the proceedings (6 September 1974 - 16 December 1975: see paragraph 10 above). Yet the questions it had to resolve do not seem at all complex: the Board had to ascertain whether the relevant statutory requirements had been satisfied and, if so, whether, as the applicants maintained, there was in existence a zoning plan designating the parcels of land in issue as building land. It is somewhat difficult to understand why it did not take a decision until more than fifteen months after the matter had been referred to it. More striking is the fact that nearly ten years elapsed before the applicants received notification of a new consolidation plan (16 December 1975 - 30 October 1985: see paragraphs 10 and 21 above). The main reason for that was that on two occasions the District Authority did not comply with the Supreme Board's order that the proceedings should be reopened (see paragraphs 11 and 13 above). The first appeal against this refusal took almost sixteen months, mainly because of the Provincial Board's failure to act (3 May 1976 - 30 August 1977: see paragraph 12 above). The District Authority then in substance maintained its position for virtually a year (30 August 1977 - 23 August 1978: see paragraphs 12 and 13 above); thereafter the Provincial Board took a little over seven months to remit the case to it (8 September 1978 - 13 April 1979: see paragraph 14 above); and, finally, it took the Supreme Board a year and three weeks to confirm the Provincial Board's decision (2 May 1979 - 23 May 1980: see paragraph 16 above). As the Commission rightly noted, these lapses of time, amounting in all to some four years, were unreasonable. The same is true of the length of the subsequent proceedings before the District Authority (see paragraphs 16-17 above). The failure by this authority to take any decision within the statutory time allowed triggered off a succession of appeals, the proceedings in which lasted until the notification - eighteen months and thirteen days later - of the Administrative Court's judgment in the applicants' favour (21 January 1981 - 3 August 1982: see paragraphs 17-19 above). The Administrative Court, considering that the measures taken by the District Authority were not such as to justify its dilatoriness, held that the Provincial Board should have allowed the applicants' appeal and decided the case itself (see paragraph 19 above). Even then, the applicants had to wait four months and one week before receiving the text of the Supreme Board's decision giving effect to the Administrative Court's judgment and quashing the decision of the Provincial Board (3 August 1982 - 10 December 1982: see paragraph above). It was now for the Provincial Board to take a decision again; yet the case remained at a standstill. Consequently, after more than nine months (10 December 1982 - 28 September 1983: see paragraphs 20-21 above), the applicants applied to the Supreme Board. It assumed jurisdiction in the case in a decision notified to the applicants approximately four months after they had lodged their application (28 September 1983 - 23 January 1984: see paragraph 21 above). It took the Supreme Board another twenty-two months and twenty-three days to adopt the new consolidation plan (7 December 1983 - 30 October 1985: see paragraph 21 above). While not overlooking the difficulties inherent in carrying out such a task, the Court considers that there were undue delays in this phase too. The same does not apply to the appeal proceedings which followed the Supreme Board's decision. The Administrative Court notified its judgment barely ten months after the appeal was lodged (11 December 1985 - 9 October 1986: see paragraph 22 above), and only about five and a half months have elapsed since then. 60. In all, the proceedings complained of have already lasted more than nineteen years (see paragraph 54 above). Notwithstanding the complexity of the case, such a length of time is unreasonable in the circumstances, having regard in particular to the special duty to act expeditiously entailed by the provisional transfer of land. The various unjustified delays that have been noted were not attributable to the applicants themselves but to some of the authorities dealing with the case. The Government, moreover, admitted that such delays had occurred. As a result of these delays, viewed together and cumulatively, the applicants' case was not heard within a reasonable time as required by Article 6 § 1 (art. 6-1). II. ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1) 61. In the applicants' submission, the provisional transfer of their land in 1963 interfered with their right of property. They claimed that they had still not received the compensation in land to which they were entitled under the provincial legislation and that they had on this account suffered an "annual loss of 25,700 schillings in yield" and "45,000 schillings in interest". They alleged a breach of Article 1 of Protocol No. 1 (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." The Government challenged this contention, whereas the Commission accepted it in substance. 62. There has indisputably been an interference with the applicants' right of property as guaranteed in Article 1 of the Protocol (P1-1) (see the Marckx judgment of 13 June 1979, Series A no. 31, p. 27, § 63): on 22 April 1963, their land was allocated to other landowners, who were parties to the consolidation scheme, or else used for communal measures or facilities, and they have not so far secured, by a final decision, the compensation in kind stipulated by the provincial legislation (see paragraphs 8, 10, 12, and 22 above). 63. It remains to be determined whether this interference contravenes Article 1 of Protocol No. 1 (P1-1). This provision "comprises three distinct rules". The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions; and the third rule, stated in the second paragraph, recognises that States are entitled, amongst other things, to control the use of property in accordance with the public interest. The Court has to consider the applicability of the last two rules before determining whether the first one has been complied with. However, the three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, as the most recent authority, the AGOSI judgment of 24 October 1986, Series A no. 108, p. 17, § 48). 64. The Court notes first of all that the Austrian authorities did not effect either a formal expropriation or a de facto expropriation (see the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 24, §§ 62-63). The transfer carried out in April 1963 was a provisional one; only the entry into force of a consolidation plan will make it irrevocable (see paragraph 32 above). The applicants may therefore recover their land if the final plan does not confirm the distribution made at the earlier stage of the proceedings. Accordingly, it cannot be said that the applicants have been definitively "deprived of their possessions" within the meaning of the second sentence of the first paragraph of Article 1 (P1-1). Nor was the provisional transfer essentially designed 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 32 above). The transfer must therefore be considered under the first sentence of the first paragraph of Article 1 (P1-1). 65. For the purposes of this provision, the Court must inquire whether a proper balance was struck between the demands of the community's general interest and the requirements of protecting the fundamental rights of the individual (see the above-mentioned Sporrong and Lönnroth judgment, p. 26, § 69). 66. It should first be recalled that nearly twenty-four years have already elapsed since the provisional transfer (22 April 1963 - 24 March 1987: see paragraph 8 above) without the applicants' having received, under a final consolidation plan, the compensation in land provided for by law. According to the Government, the length of the proceedings is not a matter for consideration under Article 1 of Protocol No. 1 (P1-1) if the Court hasalready ruled it to have been in breach of Article 6 § (art. 6-1) of the Convention. Such an argument is inconsistent with the Court's case-law, from which it is apparent that one and the same fact may fall foul of more than one provision of the Convention and Protocols (see, for example, the Airey judgment of 9 October 1979, Series A no. 32, p. 17, §§ 31-33). Moreover, the complaint made under Article 6 § 1 (art. 6-1) can be distinguished from the complaint relating to Article 1 of the Protocol (P1-1). In the former case, the question was one of determining whether the length of the consolidation proceedings had exceeded a "reasonable time", whereas in the latter case their length - whether excessive or not - is material, together with other elements, in determining whether the disputed transfer was compatible with the guarantee of the right of property. 67. It should also be pointed out that the relevant provincial legislation did not permit any reconsideration of the provisional transfer, notwithstanding the applicants' successful appeals against the consolidation plans. Nor does it provide for the possibility of compensating the applicants financially for the loss they may have sustained on account of the forced exchange of their land for other, inferior land pursuant to the provisional transfer (see paragraphs 21, 22 and 33 above). 68. The Court is not unmindful of the legislature's concern, however. In authorising a provisional transfer at an early stage of the consolidation process, its intention is to ensure that the land in question can be continuously and economically farmed in the interests of the landowners generally and of the community. Furthermore, although the applicants lost their land in consequence of the transfer decided on in 1963, they received other land in lieu, even if they are not satisfied with it. The applicable system, however, suffers from a degree of inflexibility: before the entry into force of a consolidation plan, it provides no means of altering the position of landowners or of compensating them for damage they may have sustained in the time up to the final award of the statutory compensation in land. 69. In the circumstances of the present case, therefore, the necessary balance between protection of the right of property and the requirements of the public interest was lacking: the applicants, who remain uncertain as to the final fate of their property, have been made to bear a disproportionate burden. There is no need at this stage to determine whether they have suffered actual prejudice (see the above-mentioned Sporrong and Lönnroth judgment, p. 28, § 73). 70. The Court accordingly finds that there has been a breach of Article 1 of Protocol No. 1 (P1-1). III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 71. The applicants are claiming compensation in the sum of 919,100 schillings for pecuniary damage and reimbursement of lawyers' fees, which they put at 248,125.48 schillings. The Government and the Commission have not yet expressed a view on the matter, which is consequently not ready for decision. It must be reserved and the further procedure fixed, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 53 §§ 1 and 4 of the Rules of Court). FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Holds that there has been a breach of Article 6 § 1 (art. 6-1) of the Convention as regards observance of the "reasonable time" requirement; 2. Holds that it has no jurisdiction to entertain the other complaints made by the applicants under this provision; 3. Holds that there has been a breach of Article 1 of Protocol No. (P1-1); 4. Holds that the question of the application of Article 50 (art. 50) of the Convention is not ready for decision; accordingly, (a) reserves the whole of the said question; (b) invites the Government to submit to the Court, within the forthcoming two months, their written observations on the said question and, in particular, to notify the Court of any friendly settlement which they may reach with the applicants; (c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 April 1987. Signed: Rolv RYSSDAL President Signed: Marc-André EISSEN Registrar BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII