PROCEDURE

The case originated in an application (no. 36650/05) 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 two Austrian nationals, Mr Franz Bachmayer, Sr. and Mr Franz Bachmayer, Jr. (“the applicants”), on 12 October 2005.

The applicants were represented by Mr E. Proksch, a lawyer practising in Wien. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

On 28 August 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants, Franz Bachmayer, Sr. and Franz Bachmayer, Jr. were born in 1939 and 1968 respectively and live in Stuhlfelden.

The applicants have an inalienable and indefinite right to the use of wood (Einforstungsrecht) from certain plots of land now owned by the Republic of Austria and managed by the Austrian Federal Forestry Administration (Österreichische Bundesforste). In 1870 and 1876 the applicant's predecessors were granted the right to exchange their right to the use of the wood for ownership of the land.

On 6 September 1978 the first applicant and Jakob Bachmayer, the second applicant's legal predecessor, requested this exchange.

On 27 June 1985 the Salzburg Office of the Regional Governor in its capacity as Agricultural Authority (Amt der Landesregierung als Agrarbehörde) dismissed the request (“count 1”, divided into “lit.a”, “lit.b” and “lit.c” with regard to different rights). However, in the same decision the authority granted a request by the Austrian Federal Forests to pay compensation in exchange for the right to use the wood (“count 2”). The first applicant and Jakob Bachmayer appealed against this decision to the Regional Land Reform Board (Landesagrarsenat – hereafter “the Regional Board”). Subsequently, on 30 April 1986, they filed a request for transfer of jurisdiction (Devolutionsantrag).

On 2 July 1986 the Supreme Land Reform Board (Oberster Agrarsenat – Supreme Board) dismissed the request for transfer of jurisdiction, because the questions at issue were of a high complexity and several expert opinions were required.

A further request for transfer of jurisdiction by the first applicant and Jakob Bachmayer was dismissed by the Supreme Land Reform Board on 27 February 1991. They filed a complaint against this decision with the Administrative Court, which was dismissed on 8 October 1991.

Meanwhile, on 16 January 1991, the second applicant and Mr Jakob Bachmayer concluded a contract on the transfer of the rights of the latter to the second applicant.

On 15 April 1992, after having held oral hearings in 1991 and 1992 the Regional Board, in a partial decision, dismissed the appeal against the Office of the Regional Governor of 27 June 1985 as regards “count 2” of the decision and also determined a new amount of compensation. As regards “count 1” several hearings were held between 1992 and 17 November 1995. On the latter date the Regional Board dismissed the applicants' appeal against “count 1 lit.c”.

On 21 February 1996 the applicants again requested a transfer of jurisdiction concerning their appeal against “count 1 lit.a” and “lit.b”.

On 5 June 1996 the Supreme Land Reform Board granted the transfer of jurisdiction, and subsequently appointed an expert, inspected the location and gave the applicants and the Austrian Federal Forestry Administration the possibility to submit comments on the expert opinion.

On 1 April 1998 the Supreme Land Reform Board granted the appeal and amended the decision of 27 June 1985. It determined the size of the land the applicants would receive in exchange for their right to the use of the wood and determined the compensation payments to be made by the applicants.

On 4 June 1998 the Austrian Federal Forestry Administration lodged a complaint with the Administrative Court against that decision.

The Administrative Court, on 21 February 2002, quashed the decision of the Supreme Land Reform Board. It held, inter alia, that the calculation of the compensation was erroneous, because the additional benefit that could be derived from using the land for hunting had not been taken into account.

On 4 December 2002 the Supreme Land Reform Board held a hearing and decided again on the appeal, modifying its previous decision.

The Austrian Federal Forestry Administration lodged a complaint with the Constitutional Court on 31 January 2003.

On 13 October 2004 the Constitutional Court instituted proceedings for review of the constitutionality of one of the legal provisions the decision of the Supreme Land Reform Board was based on.

On 10 March 2005 the Constitutional Court held that the legal provision under review was not in accordance with the Federal Constitution and therefore, on the same date and without having held an oral hearing, quashed the decision of the impugned authority of 4 December 2002.

On 7 November 2005 the Supreme Land Reform Board, quashed the Office of the Regional Governor's decision of 27 June 1985 and remitted the case back to that authority. The applicants filed a complaint with the Constitutional Court against that decision.

On 6 June 2006 the Constitutional court declined to deal with the applicants' complaint for lack of prospects of success and, upon their request, transferred the case to the Administrative Court. The case is still pending before that court.