CASE OF PRÖTSCH v. AUSTRIA
No violation of P1-1
John Freeland;R. Pekkanen
6. The applicants are Austrian citizens and own a farm at Niederthalheim, Upper Austria. 7. Agricultural land-consolidation proceedings (Zusammenlegungs-verfahren) 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. 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. 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: - 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 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: - 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 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. 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). 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.