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FIRST
SECTION
CASE OF PRISCHL v. AUSTRIA
(Application
no. 2881/04)
JUDGMENT
STRASBOURG
26 April
2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Prischl v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 29 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2881/04) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by an Austrian national, Mrs
Franziska Prischl (“the applicant”), on 20 January 2004.
- The
applicant was represented by Mr E. Fritsche, a lawyer practising in
Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
- On
5 January 2006 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1930 and lives in Gerasdorf.
- The
application concerns land consolidation proceedings involving land
belonging to some 500 owners, including the applicant's husband.
- In
1986 a valuation schedule (Bewertungsplan) was issued, which
became final in October of that year. None of the plots of land
belonging to the applicant's husband was considered to be of special
value. By decision of 13 November 1986 the provisional transfer of
land (vorläufige Übernahme) was ordered.
- In
1990 the Regional Land Reform Board (Landesargarsenat) issued
a consolidation plan (Zusammenlegungsplan) for the Gerasdorf
community. The applicant's husband did not appeal, while a number of
other parties did. Some of these appeals were successful and the case
was remitted to the Regional Land Reform Board.
- The
applicant's husband died in 1993 and, by court decision of
15 November 1994, the applicant became his principal heir.
- On
20 June 1995 the Regional Land Reform Board amended the consolidation
plan making changes, inter alia, as regards one of the
applicant's compensatory parcels. The applicant appealed on 21 August
1995, claiming that some of the plots of land which had belonged to
her late husband and had been allocated to another party, were of
special value since they could be used for gravel production and that
her late husband had not been duly compensated. The applicant was
represented by counsel in these and the subsequent proceedings.
- On
6 December 1995 the Supreme Land Reform Board (Oberster
Agrarsenat) decided to suspend the appeal proceedings pending
further amendments of the consolidation plan.
- The
applicant lodged a complaint with the Constitutional Court
(Verfassungsgerichtshof). On 13 March 1996 the Constitutional
Court declined to deal with the complaint and transferred the case to
the Administrative Court (Verwaltungsgerichtshof) which
received the file on 7 May 1996. On 7 November 1996 the Supreme
Land Reform Board submitted its comments.
- On
26 May 1998 the Administrative Court quashed the Supreme Land Reform
Board's decision and ordered it to continue the proceedings.
- The
Supreme Land Reform Board resumed the proceedings and carried out a
visit on the spot on 30 September 1998. Subsequently, it took an
expert opinion concerning the value of the plots of land given up by
the applicant's late husband and those received in compensation. On
2 December 1998 the Supreme Land Reform Board, after having held
a hearing dismissed the applicant's appeal. It found that the
compensation in land she had received fulfilled the requirements of
the Regional Agricultural Act. A change in value of land could only
be taken into account before the valuation schedule became final.
This was not the applicant's case, since the licences allowing gravel
production had only been issued between 1995 and 1997.
- On
12 February 1999 the applicant filed a complaint with the
Constitutional Court. On 8 June 1999 the latter declined to deal with
the applicant's case for lack of prospects of success and transferred
the case to the Administrative Court. In 1999 six other complaints
also relating to the Gerasdorf land consolidation proceedings were
lodged with the Administrative Court. The proceedings in all these
cases were joined.
- On
3 July 2003 the Administrative Court dismissed the applicant's
complaint. It referred to its case-law relating to Section 18 §
4 of the Regional Agricultural Act (Flurverfassungs-Landesgesetz)
according to which a change in value of land could only be taken into
account until the validation schedule became final. In support of
this view it quoted a number of its judgments given between September
1986 and October 1997.
- The
judgment was served on the applicant's counsel on 22 July 2003.
II. RELEVANT DOMESTIC LAW
- Since
the 1993 amendment of the Federal Agricultural Proceedings Act
(Agrarverfahrensgesetz), Section 9 § 1 provides that
hearings before the agricultural authorities are held in public.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement.
Moreover, she complained that she did not have a public hearing
before the Constitutional Court or the Administrative Court and that
the proceedings were unfair. She relied on Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by [a] ... tribunal...”
A. Admissibility
1. Length of proceedings
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Other complaints
- The
applicant complained that she did not have a public hearing before
the Constitutional Court and the Administrative Court.
- The
Court reiterates that the Regional and Supreme Land Reform Boards
qualify as a tribunals (see Stallinger and Kuso v. Austria,
judgment of 23 April 1997, Reports of Judgments and Decisions
1997 II, p. 677, § 37). Moreover, hearings before them
are public pursuant to Section 9 § 1 of the Federal Agricultural
Proceedings Act (see paragraph 17 above). In the present case, the
Supreme Land Reform Board which carried out a full review of the case
on points of fact and law held a hearing (see paragraph 13
above). The applicant has not claimed that this hearing was not
public, nor has she adduced any argument as to why a further hearing
would have been required before the Constitutional Court or the
Administrative Court which dealt exclusively with questions of law.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
applicant complains that the authorities wrongly refused to review
the valuation of her plots of land.
- The
Court reiterates that it is not its function to deal with errors of
fact or law allegedly committed by a national court unless and in so
far as they may have infringed rights and freedoms protected by the
Convention. Moreover, while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see, among many others, García Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
- In
the present case, there is nothing to indicate that the applicant who
was assisted by counsel throughout the proceedings could not duly
forward her arguments or that the proceedings were otherwise unfair.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Merits
- The
applicant asserted that the proceedings lasted some twenty years and
maintained that there were considerable delays attributable to the
authorities.
- The
Government contested this. They argued that 21 August 1995, the date
of the first remedy used by the applicant should be taken as the
starting point for calculating the duration of the proceedings. They
asserted that land consolidation proceedings are by their nature
complex and that the present proceedings involved a great number of
land owners and were among the most complex proceedings ever
conducted by the agricultural authorities. Nevertheless, no major
delays occurred. As regards the duration of the proceedings before
the Administrative Court, the Government pointed out that the
applicant's complaint was joined to six other complaints also
relating to the Gerasdorf land consolidation proceedings. Moreover,
the Administrative Court experienced a peak in its workload during
the relevant period.
- In
accordance with the Court's case-law in similar cases, the date when
a “dispute” arose is to be taken as a starting point for
the calculation of the length of the proceedings. Consequently, the
period to be taken into consideration began on 21 August 1995, when
the applicant appealed against the amended consolidation plan (see
Kolb and Others v. Austria, nos. 35021/97 and 45774/99,
§ 49, 17 April 2003 with a reference to Wiesinger v. Austria,
judgment of 30 October 1991, Series A no. 213, p. 20, § 51). It
ended on 22 July 2003 when the Administrative Court's judgment was
served. It has thus lasted seven years and eleven months for three
levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Kolb and Others, cited above, § 56, which
concerned land consolidation proceedings which lasted between 7 years
and 8 months and 10 years and 4 months respectively).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Although land consolidation proceedings are by their very nature
complex (see, Wiesinger, cited above, p. 21, § 55), the
Court notes in particular that long delays occurred in both sets of
proceedings before the Administrative Court, namely between 7
November 1996 and 26 May 1998 and between 8 June 1999 and 3 July
2003, respectively. No explanation has been provided for the delay in
the first set of proceedings. The fact that the applicant's case was
joined to six other complaints relating to the same land
consolidation proceedings is not capable of explaining the delay of
more than four years in the second set of proceedings. The applicant
made repeatedly use of remedies, but it cannot be said that any
delays are attributable to her. In sum, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the Administrative Court, when assessing
the compensation issue, refused to take into account that some of her
former plots of land were of special value since they were suited for
gravel production. She alleged a violation of Article 1 of Protocol
No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions 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.”
Admissibility
- The
Court notes that in Austrian land consolidation proceedings land
owners loose ownership of their original plots of land with the
provisional transfer. In a comparable case, the Court has therefore
found that land which has been transferred can no longer be
considered as a “possession” within the meaning of
Article 1 of Protocol No. 1. Moreover, where the law makes it clear
that possible changes in value which arise after the provisional
transfer are not to be taken into account, no legitimate expectation
arises (Kolb and Others v. Austria (dec.), nos.
35021/97 and 45774/99, 21 February 2002).
- In
the present case, the valuation schedule was adopted in October 1986
and applicant's late husband lost his ownership of the plots of land
at issue in November 1986 when the provisional transfer was carried
out (see paragraph 6 above). In addition, it was the Administrative
Court's constant case-law that changes in value of land could only be
taken into account until the validation schedule became final (see
paragraph 15 above). Thus, there is no basis for arguing that the
applicant had any legitimate expectation to have a possible change in
value taken into account which occurred in the mid-1990s. She
therefore did not have a “possession” for the purpose of
Article 1 of Protocol No. 1.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 §
4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 300,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. As to pecuniary damage she asserted that she
had suffered losses since the plots suited for gravel production were
not reassigned to her.
- The
Government observed that there was no causal link between the length
of the proceedings and the pecuniary damage claimed. Moreover, they
noted that the applicant did not explain to what extent she had
suffered non-pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
However, having regard to its case-law in comparable cases (see Kolb
and Others, cited above, § 67) and ruling on an equitable
basis, it awards her EUR 5,500 under the head of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed a total amount of EUR 10,984.70, including
value-added tax (VAT) for costs and expenses. It follows from the
itemised bill submitted by the applicant that this sum includes the
costs of the domestic proceedings and EUR 686.88, including VAT,
incurred in the proceedings before the Court.
- The
Government commented that the costs of domestic proceedings were not
incurred in order to prevent or redress the violation at issue.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- In
the present case, the Court observes that the costs of the domestic
proceedings were not incurred in order to prevent or redress the
unreasonable duration of the proceedings. As to the costs incurred in
the Convention proceedings, the Court notes that the application was
only partly declared admissible. The Court considers it reasonable to
award the applicant the sum of EUR 500 under this head. This sum
includes VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,500 (five thousand
five hundred euros) in respect of non-pecuniary damage and EUR 500
(five hundred euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
