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	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: [1991] ECHR 48, 16 EHRR 258, (1993) 16 EHRR 258

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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.