CASE OF POISS v. AUSTRIA

1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 14 May 1986, within
the three-month period laid down in Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 9816/82) against the Republic of Austria, lodged with
the Commission under Article 25 (art. 25) by Mr. Leopold Poiss and
his children, Josef and Anna, who are all Austrian nationals, in
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Republic of Austria
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The purpose of the request was to obtain a decision from
the Court as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Article 6 § 1
(art. 6-1) of the Convention and Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicants - with the
exception of Leopold Poiss, who had died on 30 April 1984 - stated
that they wished to take part in the proceedings pending before the
Court and designated the lawyer who would represent them (Rule 30).
On 28 May 1986, the President of the Court gave the said lawyer leave
to use the German language (Rule 27 § 3).
3. On 5 June 1986, the President of the Court referred the case
to the Chamber constituted to consider the case of Ettl and Others
(Rule 21 § 6). This 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 § 3 (b)). The other five members, chosen by lot on
25 October 1985, were Mr. D. Evrigenis, Mr. F. Gölcüklü, Mr. B. Walsh,
Sir Vincent Evans and Mr. C. Russo (Article 43 in fine of the
Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. Evrigenis
died, and his place was taken by Mr. G. Lagergren, substitute judge
4. Having assumed the office of President of the Chamber
(Rule 21 § 5), Mr. Ryssdal consulted - through the Deputy Registrar -
the Agent of the Austrian Government ("the Government"), the
Commission's Delegate and the applicants' lawyer on the need for a
written procedure (Rule 37 § 1). On 30 June 1986, he directed that
the said Agent and lawyer should each have until 15 August 1986 to
submit memorials, and that the Delegate should be entitled to file a
memorial in reply within two months of the day on which the last filed
of these memorials was forwarded to him by the Registrar.
The applicants' memorial reached the registry on 18 August. The
Permanent Representative of Austria to the Council of Europe and the
Secretary to the Commission informed the Registrar, on 21 August and
22 September respectively, that the Government and the Commission's
Delegate did not intend to submit any observations in writing.
5. Having consulted - through the Deputy Registrar - the Agent of
the Government, the Commission's Delegate and the applicants' lawyer,
the President directed on 25 September that the oral proceedings
should commence on 20 or 21 October 1986, as soon as the hearing in
the Erkner and Hofauer case had ended (Rule 38).
On 6 October, the Commission provided the Registrar with a number of
documents he had asked for on the President's instructions.
6. The hearing was held in public in the Human Rights Building,
Strasbourg, on 20 October. The Court had held a preparatory meeting
There appeared before the Court:
Mr. H. Türk, Legal Adviser, Ministry of
Mr. D. Okresek, Federal Chancellery,
Mr. D. Hunger, Federal Ministry of Agriculture
Mr. E. Proksch, Rechtsanwalt, Counsel.
The Court heard addresses by the above, as well as their replies to
its questions. The applicants produced documents during the hearing.
On 30 December 1986, Mr. Proksch filed with the registry a document
giving further particulars of one point in his clients' claim for just
7. The applicants, Leopold Poiss - who died on 30 April 1984 -
and his children, Josef and Anna, are Austrian farmers, resident at
Palterndorf, Lower Austria. They complain of consolidation
proceedings (Zusammenlegungsverfahren) taken in respect of their
I. The circumstances of the case
8. On 13 September 1965, the Lower Austrian District Agricultural
Authority (Agrarbezirksbehörde - "the District Authority") issued a
consolidation plan it had adopted on 1 September. It had already
ordered, on 22 April 1963, the provisional transfer of the parcels of
land concerned. The scheme affected 530 people, including 428 owners
The applicants considered that their land was superior in quality to
the plots offered in compensation and they accordingly appealed
against the plan between 27 and 30 September 1965, but the Provincial
Land Reform Board (Landesagrarsenat - "the Provincial Board") upheld
The applicants appealed within two weeks against the Provicial Board's
decision, claiming specifically that some of their original land
- vineyards located near the farmhouse (Hausweingärten) - should have
been scheduled as building land. On 5 May 1971, their appeal was
dismissed by the Supreme Land Reform Board (Oberster Agrarsenat - "the
Supreme Board"), which declared that the land in question was
designated in the Palterndorf municipal zoning plan as being for
agricultural use. This decision was served on 8 September 1971.
The applicants then made an application to the Constitutional Court,
which dismissed their appeal on 24 February 1972; the judgment was
2. The reopening of the proceedings
9. On 7 September 1971, i.e. the day before the Supreme Board's
decision was served on the applicants, the municipal planning
authority had adopted (but not published) a provisional zoning plan in
which the applicants' vineyards were designated as building land. The
mayor of Palterndorf-Dobermannsdorf confirmed this in a letter to the
Poiss family on 5 September 1974.
(a) The Supreme Board's new decision
10. The next day, the applicants applied to the Supreme Board to
have the proceedings reopened. Relying on section 69(1)(b) of the
General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrensgesetz), they argued in particular that as they
had not received confirmation of the existence of a provisional zoning
plan until the previous day, they had not been able to cite the
redesignation of their land in the earlier proceedings.
The Supreme Board granted their application on 1 October 1975.
Reconsidering the original appeal, it held that, as building land, the
land in question was of special value within the meaning of
section 18(1) of the Lower Austrian Agricultural Land Planning Act of
1975 (Flurverfassungslandesgesetz - see paragraphs 26 and 33 below)
and must therefore be left in the hands of its former owners or else
be replaced by land of equal value. This decision was served on the
(b) The first phase of the reopened proceedings
11. Since the consolidation plan would have to undergo an
alteration that would automatically affect the interests of the other
parties to the redistribution procedure, the matter was remitted to
the District Authority for further investigation and a fresh decision.
On 5 April 1976, the District Authority refused to acknowledge that
the land in dispute was land of special value, since the provincial
municipal zoning plan of 7 September 1971 had not been finally
approved by the appropriate provincial authority. It added that the
land could not be regarded as natural building land, since it was some
distance away from the village's residential zone.
12. The Poiss family appealed to the Provincial Land Reform Board
on 3 May 1976, but the latter failed to give a decision within the six
months stipulated in section 73(1) of the General Administrative
Procedure Act, and the applicants accordingly applied to the Supreme
Land Reform Board on 24 January 1977 to assume jurisdiction under
section 73(2) (see paragraph 41 below).
On 6 July 1977, the Supreme Land Reform Board allowed both the
application for transfer of jurisdiction and the appeal. It remitted
the case to the District Authority, ruling that the latter was bound
by the Supreme Board's opinion of 1 October 1975. This decision was
served on the applicants on 30 August 1977.
(c) The second phase of the reopened proceedings
13. The District Authority once again refused to comply, however:
it decided on 23 August 1978 to postpone a decision until the final
zoning plan had been adopted. It held that the provisional plan had
still not been approved by the appropriate provincial authorities;
that there were serious doubts as to whether the land in question
could be classified as building land; and that to take a decision in
the absence of a plan would be contrary to the Federal Constitution
(Bundes-Verfassungsgesetz) and the case-law of the Administrative
Court (Verwaltungsgerichtshof).
14. On an appeal by the applicants on 8 September 1978, the
Provincial Land Reform Board quashed this decision on 6 April 1979.
It found that a final zoning plan was no longer an essential
prerequisite for settling the dispute, since under section 113(2) of
the Agricultural Land Planning Act (see paragraph 26 below) - as
amended on 23 February 1979 - the provisions of consolidation plans
had the same effect as regional-planning decisions. Local planning
decisions must not conflict with (regional) consolidation plans, and
this meant that the municipal authorities were not entitled to
obstruct application of the consolidation plan for Palterndorf-
Dobermannsdorf; nor could the local planning authorities classify as
building land any zones shown in the consolidation plan as farming
land. In short, there was no reason why a determination of the merits
of the applicants' claim should be postponed.
This decision was served on the applicants on 13 April 1979.
15. Subsequently, the Poiss family applied to the District
Authority under section 18(4) of the Agricultural Land Planning Act
(see paragraph 33 below) with a view to having their land recognised
as being of special value. No decision was given on this application.
16. The applicants also applied - on 2 May 1979 - to the Supreme
Board to have the Provincial Board's decision set aside. This
application was refused on 7 May 1980. The Supreme Board ruled that
the District Authority must itself take a speedy decision. It held
that the special value of the Poiss family's land could not be
disputed, although it was not designated as building land in any final
zoning plan. Several houses had been built in the same zone in the
meantime, and the District Authority was still bound by the Supreme
This decision was served on the applicants on 23 May 1980.
3. Proceedings concerning the authorities' failure to act
(a) The first set of proceedings
17. The District Authority took no further decision within the
statutory six-month period (see paragraph 41 below), and on
21 January 1981 the applicants accordingly applied to the Provincial
On 29 May 1981, the Provincial Board refused to entertain the
application. It found that the District Authority had taken steps to
satisfy the Poiss family's claims but had not so far succeeded in
securing a final settlement. The delay was due neither to the
District Authority nor to the applicants. The other parties having
received their compensation in land in 1965, the original intention
had been to compensate the applicants with a parcel of municipally
owned land, but insuperable difficulties (unüberwindliche Hindernisse)
had arisen because the parcel in question was not of the right size.
Although this phase of the proceedings had lasted longer than six
months, this was not unreasonable in relation to the length of the
proceedings as a whole, which had begun in 1965. Having regard to all
the circumstances, the conditions for a transfer of jurisdiction had
This decision was served on the applicants on 2 July 1981.
18. The applicants appealed to the Supreme Board on 13 July 1981,
claiming that there had been no insuperable difficulties, but the
Supreme Board upheld the Provincial Board's decision on
4 November 1981. It ruled that the District Authority's conduct had
not been unreasonable in the circumstances of the case. This decision
was served on the applicants on 16 December.
19. The applicants appealed to the Administrative Court
on 25 January 1982. Their contention was that the District
Authority's endeavours to reach an agreement with the municipal
authority had not been sufficient to discharge its obligation to
provide a basis for a legal decision on their claims for compensation;
and that in view of the length of the earlier proceedings and their
slowness, there was no justification for further postponing such a
On 15 June 1982, the Administrative Court allowed the appeal: having
regard to section 73 of the General Administrative Procedure Act
(see paragraph 41 below), the application for a decision had been
wrongly refused; as for the steps taken by the District Authority,
they were insufficient to justify the delay.
This judgment was served on the applicants on 3 August.
(b) The second set of proceedings
20. On 3 November 1982, the Supreme Board quashed the Provincial
Board's decision of 29 May 1981 (see paragraph 17 above) for the
reasons given by the Administrative Court, and ruled that the
Provincial Board accordingly now had jurisdiction to determine the
The applicants were served with this decision on 10 December.
The Provincial Board failed to give a decision within the statutory
six-month period (see paragraph 41 below). It merely inspected the
land in the spring of 1983 and subsequently held several meetings with
the parties with a view to securing a friendly settlement.
21. On 28 September 1983, the Poiss family applied to the Supreme
Board to assume jurisdiction under section 73 of the General
Administrative Procedure Act (see paragraph 41 below). On
7 December 1983, the Supreme Board granted the application; its
decision was served on the applicants on 23 January 1984.
The Supreme Board held a hearing on 6 March 1985 and on the same day
drew up a new consolidation plan, which was communicated to the
applicants on 30 October 1985. The Board confirmed the earlier
consolidation measures and allotted the applicants some building land
made available by the municipality of Palterndorf-Dobermannsdorf; it
rejected the complaint that this land did not compensate for the land
of special value that the applicants had lost; since the law was
silent on the point, the Board also refused to award the applicants
any financial compensation for the damage caused to them by the
authorities' having throughout the proceedings withheld the
compensatory parcels of land lawfully due to them.
22. On 11 December 1985, the applicants appealed to the
Administrative Court. In a judgment delivered on 15 July 1986 and
served on 9 October, the Administrative Court quashed the Supreme
Board's decision as regards the land in compensation, on grounds of
procedural irregularity, but dismissed it as to the rest, in
particular - for want of any statutory basis - as regards the claim
No new consolidation plan for Palternsdorf has been adopted to date
23. Powers in respect of land reform in Austria are divided
between the Federation and the Länder. Legislation establishing
general principles is the responsibility of the Federation, while
implementing legislation and law enforcement is the responsibility of
the Länder (Article 12(1)(3) of the Federal Constitution). By
Article 12(2) of the Federal Constitution, decisions at final instance
and at Land level are taken by boards consisting of a "chairman,
judges, civil servants and experts"; "the board which decides at final
instance shall be set up within the appropriate Federal Ministry".
"Provision shall be made in a Federal Act for the organisation,
functions and procedure of the boards and for the principles for
organising the other authorities concerned with land reform". This
Act must provide that the executive shall not be able to set aside or
vary the boards' decisions; it cannot exclude appeals to the
provincial board against decisions by the authority of first instance.
24. Within this constitutional framework the Federal Parliament has
passed three Acts dealing with the following matters:
(i) the legal principles applicable to land reform (Federal
Agricultural Land Planning (General Principles) Act (Flurverfassungs-
Grundsatzgesetz 1951), as amended in 1977);
(ii) the organisation of the land reform boards and the principles
for organising the authorities of first instance (Federal Agricultural
Authorities Act (Agrarbehördengesetz 1950), as amended in 1974);
(iii) proceedings before agricultural authorities (Federal
Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which
refers to the General Administrative Procedure Act).
2. The consolidation of agricultural land
25. The basic rules applying to the consolidation of agricultural
land are embodied in the Federal Agricultural Land Planning (General
Principles) Act. The Länder have regulated the matters for which they
are made responsible under the Federal legislation in provincial
agricultural land planning Acts (Flurverfassungs-Landesgesetze).
26. In Lower Austria, consolidation is governed by the
Agricultural Land Planning Act 1975 ("the Provincial Act"). This
replaced an Act of 1934 and was itself amended in certain respects by
27. The purpose of consolidation is to improve infrastructure and
the pattern of agricultural holdings in a given area. It comprises
communal measures and facilities and redistribution of land. The
operation takes place in the following stages:
- the initial proceedings and determination of the consolidation area
(sections 2 and 3 of the Provincial Act);
- ascertainment of the occupiers of the land in question and
assessment of its value (sections 10-12);
- planning of communal measures and facilities (sections 13-15);
- provisional transfer of land, where appropriate (section 22);
- adoption of the consolidation plan (sections 16-21).
Normally, none of these stages may begin until the previous stage has
been terminated with a final decision. There are, however, some
exceptions to this rule, particularly as regards the valuation, which
must be made at an early stage in the proceedings, in accordance with
precise statutory criteria (section 11 of the Provincial Act). Any
valuation may, however, be appealed against until such time as there
is a final consolidation plan (section 12(5) of the Provincial Act and
section 68(4) of the General Administrative Procedure Act).
28. The initial proceedings, which are instituted officially, serve
to determine the consolidation area, which, in addition to farmland
and forest, may include land required for communal facilities. 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.
29. The agricultural authority then ascertains who are the
occupiers of the land and assesses its value. Its decision
(Besitzstandsausweis und Bewertungsplan) determines the value of the
land in accordance with precise statutory criteria. Each of the
landowners involved may - until such time as the consolidation plan
comes into force - challenge the valuation not only of his own land
but also of the land of the others.
30. 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 to
provide suitable access to or permit effective cultivation of the
compensatory parcels of land, or if they otherwise assist the
consolidation scheme in the interests of the majority of the parties
concerned. Alteration, relocation or removal of existing facilities
may also be ordered. All these matters are embodied in a specific
decision by the relevant authority (Plan der gemeinsamen Massnahmen
und Anlagen), which must also settle the question of costs, usually
31. The relevant agricultural authority takes these last three
decisions (see paragraphs 29-30 above) one after the other or
simultaneously; it may take them all together when it adopts the
consolidation plan (sections 12(4), 14(3) and 21 of the
32. Under section 22 of the Provincial Act, land may be
provisionally transferred if at least two-thirds of the owners agree
- the communal-facilities plan has been adopted; and
- a draft consolidation plan has been prepared and compensatory
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: it reverts if the allocation is not
confirmed in the final consolidation plan (Eigentum unter auflösender
33. At the end of the proceedings, the agricultural authority
adopts the consolidation plan (Zusammenlegungsplan). Since 1977, this
has had to be published within three years of the final decision to
provisionally transfer parcels of land (section 7a(4) of the Federal
Agricultural Proceedings Act). 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 Provincial Act
includes the following regulations on this matter:
- "Any party whose land is included in the consolidation scheme ...
shall be entitled to compensation ... in land which shall as far as
possible be of equal value" (section 17(1));
- "The value of the land offered in exchange must correspond fairly
closely to the amount of compensation due. Discrepancies of up to 5%
are permissible .... Such discrepancies may be made good by cash
- "Both the type and the agricultural value of the land awarded to a
party in compensation must correspond as closely as possible to those
of the land belonging to him which has been included in the
consolidation scheme. It must enable him to secure better, or at
least the same, results without his making any substantial change to
the nature of his farm or to its equipment ..." (section 17(8)).
Section 18 of the Act has the following to say about land of special
"Land which has special value because it is particularly suited to the
growing of specific crops or on account of a non-agricultural use
shall be restored to its owner or replaced by equivalent plots of
land, having due regard to their market value and the requirements of
the holding concerned. Such land includes:
(a) land which has been built on or for which planning permission has
(b) land designated as building land in a regional or simplified
regional zoning plan under the Lower Austrian Regional Planning Act of
Since 1979, the Provincial Act has stipulated that the parties must
secure recognition of their land's special value before the valuation
schedule has been adopted (section 18(4)).
The provincial legislation does not provide for any financial
compensation for damage which landowners who have successfully
challenged the lawfulness of compensation received in land suffer
before a final consolidation plan comes into force.
3. The agricultural authorities
34. The first-instance authority in Lower 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).
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 has varied the decision in question and where
the dispute concerns one of the issues listed in section 7(2) of the
Federal Agricultural Authorities Act, such as the lawfulness of the
compensation in the event of land consolidation; in such cases an
appeal lies to the Supreme Board.
In Austrian law the land reform boards are classified as boards whose
members include judges (Kollegialbehörden mit richterlichem Einschlag)
and which constitute a kind of "specialised administrative tribunal".
35. The Provincial Board has eight members, all appointed by the
Government of the Land (section 5(2) and (4) of the Federal
Agricultural Authorities Act), viz.:
- one Land civil servant, who is legally qualified (rechtskundig), and
- a legally qualified Land civil servant with experience in land
reform, who acts as rapporteur;
- a senior Land civil servant (Landesbeamter des höheren Dienstes)
with experience in agronomic matters;
- a senior Land civil servant with experience in forestry matters; and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act.
36. The Supreme Board likewise has eight members (section 6(2)
and (4) of the Federal Agricultural Authorities Act), viz.:
- one legally qualified senior civil servant from the Federal Ministry
of Agriculture and Forestry, who acts as chairman;
- three members of the Supreme Court;
- a legally qualified senior civil servant from the Federal Ministry
of Agriculture and Forestry with experience in land reform, who acts
- a senior civil servant from the Federal Ministry of Agriculture and
Forestry with experience in agronomic matters;
- a senior civil servant from the Federal Ministry of Agriculture and
Forestry with experience in forestry matters; and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act.
The judicial members are appointed by the Federal Minister of Justice,
and the others by the Federal Minister of Agriculture and Forestry.
37. Section 52 of the General Administrative Procedure Act, which
is referred to in sections 5(2) and 6(2) of the Federal Agricultural
"1. If it becomes necessary to take expert evidence, the authority
shall rely on the services of the official experts
(Amtssachverständige) attached to it or put at its disposal.
2. However, by way of exception, the authority may also consult other
suitable persons sworn as experts if no official experts are available
or if it becomes necessary having regard to the particular
circumstances of the case. ..."
38. Members of land reform boards are appointed for five years and
may be re-appointed (section 9(1) of the Federal Agricultural
Authorities Act). They cease to hold office before the expiry of their
term if, inter alia, they no longer satisfy the conditions of
appointment (section 9(2)). Any member may, at his own request, be
relieved of his office on health grounds or for professional reasons
which prevent him from properly discharging his duties (section 9(3)).
If a judicial or civil-servant member is suspended from duty by
decision of a disciplinary tribunal, he shall automatically also be
suspended from duty as a member of a land reform board (section 9(4)).
39. The members of these boards discharge their duties
independently and are not subject to any instructions (section 8 of
the Federal Agricultural Authorities Act and Article 20(2) of the
Federal Constitution). The executive can neither set aside nor vary
their decisions (section 8 of the Federal Act and Article 12(2) of the
Federal Constitution - see paragraph 23 above). The decisions can be
challenged in the Administrative Court (section 8 of the Federal Act).
40. The pattern of organisation described above was the outcome of a
legislative change in 1974 following a judgment of the Constitutional
In the Constitutional Court's view, the land reform boards as
constituted under the 1950 Act could not be regarded as being
independent and impartial tribunals within the meaning of
Article 6 § 1 (art. 6-1) of the Convention - their members included at
that time a Minister from the Federal Government (in the case of the
Supreme Board) or the relevant provincial government (in the case of
the provincial boards), and the other members could be dismissed at
any time by the relevant authorities (judgment of 19 March 1974,
Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974,
vol. 39, no. 7284, pp. 148-161).
The new legislation excluded from the boards anyone who was a member
of either the Federal Government or a provincial government,
introduced provisions governing the term of office and the dismissal
of members and provided for appeal to the Administrative Court
(sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities
4. Procedure before land reform boards
41. Procedure before the land reform boards is governed by the
Federal Agricultural Proceedings Act (see paragraph 24 above),
section 1 of which stipulates that the General Administrative
Procedure Act shall apply - except for one section of no relevance in
the instant case - subject to the variations and additional provisions
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 Federal Act, the boards take their
decisions after a private hearing. This is normally attended by the
parties, who may consult the file (section 17 of the General
Administrative Procedure Act). The parties may appear in person or be
represented (section 9(3) of the Federal Act). The chairman may call
witnesses and, in order to obtain information, civil servants who
contributed to the decision at first instance and to the preparation
of the decision (section 9(5)).
Hearings begin with a report by the rapporteur; the board then
clarifies the subject-matter of the dispute by hearing evidence from
the parties and the witnesses and by looking at the legal and economic
situation in detail (eingehend) (section 10(2)). It proceeds on the
basis of the facts found by the authority below, but can also order
further investigations to be made by that authority or by one or more
of its own members (section 10(1)). The parties must be able to
acquaint themselves with the findings made as a result of the taking
of evidence (Beweisaufnahme) and to submit their comments
(section 45(3) of the General Administrative Procedure Act).
The boards deliberate and vote without the parties being present.
After discussing the outcome of the hearing, the rapporteur submits
conclusions (Antrag); anyone wishing to submit different conclusions
(Gegen- und Abänderungsanträge) must give reasons for them
(section 11(1) of the Federal Act). The chairman determines the order
in which the conclusions are put to the vote (ibid). The rapporteur
votes first, followed by the judges and then the other members,
including the chairman, who votes last and has a casting vote if the
votes are divided equally (section 11(2)).
If an appeal is brought - within the prescribed two weeks
(section 7(3)) - and is held to be admissible, the appropriate board
will, if it considers the findings of fact so defective that a new
hearing appears to be unavoidable, quash the disputed decision and
remit the case to the authority below; otherwise it will determine the
merits of the case itself (section 66(2) and (4) of the General
Administrative Procedure Act). It may vary either the operative part
of the impugned decision or the reasons given for the decision
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, the parties 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,
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).
Reasons must be given for the boards' decisions, which must summarise
clearly (klar und übersichtlich) the findings of the investigation,
the assessment of the evidence, and the ruling - on the basis of that
material - on the legal issues arising in the case (sections 58(2) and
60 of the General Administrative Procedure Act). Decisions are sent
to the parties; a board may, however, choose to give its decision
forthwith (section 13 of the Federal Act).
5. Appeals to the Constitutional Court and the Administrative Court
42. The decisions of land reform boards can be challenged in the
Constitutional Court. The latter reviews whether there has been any
infringement of an applicant's rights under the Constitution and
whether any decree (Verordnung) unauthorised by statute law or any
unconstitutional statute or international treaty unlawful
(rechtswidrig) under Austrian law has been applied (Article 144
43. As an exception to the general rule laid down in
Article 133(4) of the Federal Constitution, section 8 of the Federal
Agricultural Authorities 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, which, if it rules that there
has been no infringement of the right relied on in the application to
it, will refer the case to the Administrative Court if the applicant
so requests (Article 144(3) of the Federal Constitution).
Under Article 130 of the Federal Constitution, the Administrative
Court hears applications alleging the unlawfulness of an
administrative act (Bescheid) or coercion (Befehls- und Zwangsgewalt)
against an individual or the breach by the relevant authority of its
duty to take a decision. It also hears appeals against decisions by
boards whose members include judges - such as the land reform boards -
where such jurisdiction is conferred on it by statute (see
If the Administrative Court does not dismiss the application as
unfounded, it will quash the decision appealed against; it determines
the merits itself only where the relevant authority has failed in its
duty to give a decision (section 42(1) of the Administrative Court Act
(Verwaltungsgerichtshofgesetz)).
When reviewing the lawfulness of an administrative act or of a
decision by a board whose members include judges, the Court does so on
the basis of the facts found by the authority concerned and solely in
the light of the complaints made, unless the authority has acted ultra
vires or procedural requirements have not been complied with
(section 41 of the Administrative Court Act). In this connection the
Act specifically provides that the Court shall quash the act appealed
against - on grounds of procedural irregularity - where the facts the
administrative authority held to have been established are
contradicted in a vital respect by the file, or where they are
incomplete in such a respect or where there has been a failure to
comply with rules which, if they had been correctly applied, might
have resulted in a different decision (section 42(2)(3) of the
If, during the consideration of a case, grounds emerge which were
previously unknown to the parties, the latter must be given an
opportunity to be heard by the court, which must adjourn the
proceedings if necessary (section 41(1) of the Act).
Procedure consists mainly in an exchange of pleadings (section 36),
followed (except in certain cases specified in the Act) by a hearing
inter partes, which will normally be held in public (sections 39
PROCEEDINGS BEFORE THE COMMISSION
44. In their application of 25 January 1982 to the Commission
(no. 9816/82), Leopold, Josef and Anna Poiss claimed that they had not
had a hearing within a reasonable time by an independent and
impartial tribunal as required by Article 6 § 1 (art. 6-1) of the
Convention. They also complained that their right of property under
Article 1 of the Protocol No. 1 (P1-1) had been infringed.
45. The Commission declared the application admissible on
9 March 1984. In its report of 24 January 1986 (made under Article 31
of the Convention) (art. 31), it reached the conclusion that there
had been a breach of Article 6 § 1 (art. 6-1) of the Convention
(unanimously) and of Article 1 of Protocol No. 1 (P1-1) (eleven votes
The full text of the Commission's opinion and of the two separate
opinions contained in the report is annexed to this judgment.
46. At the hearing on 20 October 1986, the Government requested
the Court "to hold that in the present case Article 6 § 1 (art. 6-1)
of the Convention and Article 1 of Protocol No. 1 (P1-1) have not
been violated, and that therefore the facts of the case do not
disclose any breach of the requirements of the Convention by the
In his memorial of 18 August 1986, counsel for the applicants asked
the Court, inter alia, to concur with the Commission and find that the
Republic of Austria had been responsible for a human-rights violation.
I. ALLEGED BREACH OF ARTICLE 6 § 1 (art. 6-1) OF THE CONVENTION
47. The applicants claimed that their case had not been heard within
a "reasonable time"; that the land reform boards sat in private and
were not independent and impartial tribunals. They relied on
Article 6 § 1 (art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. ..."
The Government maintained that there had been no breach. For its
part, the Commission considered that the length of the proceedings had
exceeded a "reasonable time"; it did not give an opinion on the
1. Applicability of Article 6 § 1 (art. 6-1)
48. The Palterndorf agricultural consolidation plans concerned,
inter alia, land belonging to the Poiss family, which was taken from
them in exchange for land previously belonging to other owners. The
applicants contested - and continue to contest - the lawfulness of the
compensation obtained. Any decision - whether favourable or
unfavourable - by the authorities dealing with the matter consequently
affected, affects or will in the future affect their property rights.
The outcome of the proceedings complained of is accordingly "decisive
for private rights and obligations" (see the Ringeisen judgment
of 16 July 1971, Series A no. 13, p. 39, § 94, and the Sramek judgment
of 22 October 1984, Series A no. 84, p. 17, § 34), so that
Article 6 § 1 (art. 6-1) applies in the instant case; the Government,
2. Compliance with Article 6 § 1 (art. 6-1)
(a) "Independent and impartial tribunal" - "public hearing"
49. Before the Court, the applicants cited the fact that the
hearings before the land reform boards were not held in public, and
they contended that the boards were not independent and impartial. As
regards the latter contention, they relied on the organisational
charts of the Federal Ministry of Agriculture and Forestry and the
Office of the Provincial Government of Lower Austria to point to the
existence of hierarchical links between the civil-servant members, the
participation in the vote by civil servants responsible for preparing
expert opinions, and the short term of office (five years).
These were new complaints. They were not raised as such before the
Commission and were not based on the facts as found by the Commission
within the framework fixed by its decision on admissibility. That
being so, the Court has no jurisdiction to entertain them (see in
particular, mutatis mutandis, the Bozano judgment of 18 December 1986,
Series A no. 111, p. 27, § 62).
50. In civil proceedings, the "reasonable time" referred to in
Article 6 § 1 (art. 6-1) normally begins to run from the moment the
action was instituted before the "tribunal" (see, as the most recent
authority, the Deumeland judgment of 29 May 1986, Series A no. 100,
p. 26, § 77), and in the instant case there is nothing in the evidence
adduced which would lead the Court to hold that the dispute
("contestation") arose at any earlier date.
As to the close of the period to be taken into consideration, the
Government argued before the Commission that the determination of
civil rights as mentioned in Article 6 § 1 (art. 6-1) does not
necessarily imply a final judgment. They maintained that there had
been an initial provisional determination of the parcels of land to
be allotted to the applicants and then an adjustment whereby the
applicants became entitled to better compensation.
Like the Commission, the Court is not convinced by this argument. It
has consistently held in relation to the application of Article 6 § 1
(art. 6-1) that the period whose reasonableness falls to be reviewed
takes in the entirety of the proceedings in issue, including any
appeals (see, inter alia, the above-mentioned Deumeland judgment,
ibid.). That period accordingly extends right up to the decision
which disposes of the dispute ("contestation") (see the Guincho
judgment of 10 July 1984, Series A no. 81, p. 13, § 29).
51. In the instant case there were two phases in the proceedings.
52. The first phase began between 27 and 30 September 1965 when the
applicants appealed against the consolidation plan of 1 September 1965
It ended on 23 May 1972, when they received notification of the
Constitutional Court's judgment of 24 February (ibid.). The
proceedings in the Constitutional Court are material, because although
that Court had no jurisdiction to rule on the merits, its decision was
nonetheless capable of affecting the outcome of the dispute (see the
above-mentioned Deumeland judgment, ibid.).
The first phase therefore lasted six years, seven months and
twenty-three days (30 September 1965 - 23 May 1972).
53. In the Commission's view, the second phase began on
1 October 1975, when the Supreme Board agreed to reopen the
proceedings (see paragraph 10 above). The Court is not of the same
opinion. It considers it must take the relevant date as being
6 September 1974, when the applicants requested the reopening of
proceedings, challenging - on the basis of the zoning plan of
7 September 1971 - the valuation of some of their former land
This second phase is still under way; it has already lasted more than
twelve and a half years (6 September 1974 - 24 March 1987).
54. Consequently, the total length of time to be considered
amounts to more than nineteen years.
55. The reasonableness of the length of proceedings is to be
assessed according to the particular circumstances and having regard
to the criteria stated in the case-law of the Court, especially the
degree of complexity of the case, the applicants' behaviour and the
conduct of the relevant authorities (see, inter alia, the Buchholz
judgment of 6 May 1981, Series A no. 42, pp. 15-16, § 49, and the
Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66,
56. Any land consolidation is by its nature a complex process.
Usually - and quite legitimately - the proper valuation of parcels of
land to be surrendered and to be received in exchange is at the
forefront of the landowners' concerns. The difficulties inherent in
such an assessment are often exacerbated by farmers' traditional
attachment to their fields and meadows. Furthermore, the operation is
designed to increase the profitability of holdings and develop the
infrastructure of the area concerned; it therefore affects the
interests not only of individuals but also of the community as a
The consolidation in dispute concerned 530 people, including
428 landowners (see paragraph 8 above). As early as September 1965,
the applicants asserted that some of their former parcels of land
consisted of building land, of greater value than the compensatory
plots (ibid.). This was essentially a question of fact, to be resolved
by obtaining relevant information such as whether a zoning plan
existed and what was the area of the parcels of land, their use,
geographical situation and so forth. After the successful appeals by
the Poiss family, however, the appropriate authorities were under a
duty to draw up a new plan. No doubt they were not obliged to start
completely afresh, but it was necessary for them first to give each of
the landowners concerned a hearing. As the Government pointed out,
this task must have been all the more difficult as, at the time the
proceedings were reopened, the first plan had been in force for about
three years and four months (23 May 1972 - 1 October 1975: see
In these circumstances, the application of the law appears to have
raised issues of fact of considerable complexity.
57. In the Government's submission, the applicants bear some
responsibility for the delays of which they complain: they took
advantage of every avenue of appeal available to them, even those
without any real prospect of success, and did everything possible
- particularly after they had lodged their petition with the
Commission - to prolong the proceedings in Austria. In particular,
the Government claimed that they were wrong to apply several times to
a higher body, thereby interrupting the work of the lower authority.
The Court does not accept this submission.
It points out, in the first place, that it has consistently held that
applicants cannot be blamed for making full use of the remedies
available to them under domestic law (see, mutatis mutandis, the Eckle
judgment of 15 July 1982, Series A no. 51, p. 36, § 82). In the
instant case, as the Commission rightly pointed out, the remedies
resorted to were mostly successful (see paragraphs 10, 12, 14, 19, 20,
As for the applications seeking rulings from the higher authority
instead of the one having jurisdiction at lower instance, the law
allowed the applicants to make these once six months had elapsed (see
paragraph 41 above). In each case they in fact waited longer - eight
months, three weeks; approximately eight months; and nine months,
eighteen days (see paragraphs 12, 17 and 21 above) - and all these
The applicants' behaviour, in itself legitimate, nonetheless
constitutes an objective fact which cannot be attributed to the
respondent State and which must be taken into account for the purpose
of determining whether or not the reasonable time referred to in
Article 6 § 1 (art. 6-1) has been exceeded (see, mutatis mutandis,
the above-mentioned Eckle judgment, ibid.).
58. As to the competent authorities, the Court notes that, in
accordance with the law, they had initiated the consolidation process
of their own motion and that they were responsible for the conduct of
it (see paragraphs 28 and 41 above). Further and more particularly,
they had decided as early as April 1963 on a provisional transfer of
the land concerned (see paragraph 8 above). They were accordingly
under a special duty to act expeditiously. The Austrian legislature,
moreover, itself recognises the existence of such an obligation: it
has retained in relation to land-consolidation proceedings the general
rule that a decision must be made within six months (see paragraph 41
above) and in 1977 enacted a provision whereby consolidation plans
must be published at the latest three years after a final decision on
provisional transfer (see paragraph 33 above).
59. The applicants have not complained specifically about the length
of the initial proceedings (six years, seven months and twenty-three
days - see paragraph 52 above). Although this was a not
inconsiderable period - especially having regard to the fact that land
had been provisionally transferred in April 1963 -, it was doubtless
substantially accounted for by the circumstances of the case, which
the authorities were having to deal with for the first time.
The same does not apply, however, to several periods of time in the
In the first place, the Supreme Board took fifteen months and ten days
to reopen the proceedings (6 September 1974 - 16 December 1975: see
paragraph 10 above). Yet the questions it had to resolve do not seem
at all complex: the Board had to ascertain whether the relevant
statutory requirements had been satisfied and, if so, whether, as the
applicants maintained, there was in existence a zoning plan
designating the parcels of land in issue as building land. It is
somewhat difficult to understand why it did not take a decision until
more than fifteen months after the matter had been referred to it.
More striking is the fact that nearly ten years elapsed before the
applicants received notification of a new consolidation plan
(16 December 1975 - 30 October 1985: see paragraphs 10 and 21 above).
The main reason for that was that on two occasions the District
Authority did not comply with the Supreme Board's order that the
proceedings should be reopened (see paragraphs 11 and 13 above). The
first appeal against this refusal took almost sixteen months, mainly
because of the Provincial Board's failure to act (3 May 1976 -
30 August 1977: see paragraph 12 above). The District Authority then
in substance maintained its position for virtually a year
(30 August 1977 - 23 August 1978: see paragraphs 12 and 13 above);
thereafter the Provincial Board took a little over seven months to
remit the case to it (8 September 1978 - 13 April 1979: see
paragraph 14 above); and, finally, it took the Supreme Board a year
and three weeks to confirm the Provincial Board's decision
(2 May 1979 - 23 May 1980: see paragraph 16 above). As the Commission
rightly noted, these lapses of time, amounting in all to some four
The same is true of the length of the subsequent proceedings before
the District Authority (see paragraphs 16-17 above). The failure by
this authority to take any decision within the statutory time allowed
triggered off a succession of appeals, the proceedings in which lasted
until the notification - eighteen months and thirteen days later - of
the Administrative Court's judgment in the applicants' favour
(21 January 1981 - 3 August 1982: see paragraphs 17-19 above). The
Administrative Court, considering that the measures taken by the
District Authority were not such as to justify its dilatoriness, held
that the Provincial Board should have allowed the applicants' appeal
and decided the case itself (see paragraph 19 above). Even then, the
applicants had to wait four months and one week before receiving the
text of the Supreme Board's decision giving effect to the
Administrative Court's judgment and quashing the decision of the
Provincial Board (3 August 1982 - 10 December 1982: see paragraph 20
It was now for the Provincial Board to take a decision again; yet the
case remained at a standstill. Consequently, after more than nine
months (10 December 1982 - 28 September 1983: see paragraphs 20-21
above), the applicants applied to the Supreme Board. It assumed
jurisdiction in the case in a decision notified to the applicants
approximately four months after they had lodged their application
(28 September 1983 - 23 January 1984: see paragraph 21 above). It
took the Supreme Board another twenty-two months and twenty-three days
to adopt the new consolidation plan (7 December 1983 -
30 October 1985: see paragraph 21 above). While not overlooking the
difficulties inherent in carrying out such a task, the Court considers
that there were undue delays in this phase too.
The same does not apply to the appeal proceedings which followed the
Supreme Board's decision. The Administrative Court notified its
judgment barely ten months after the appeal was lodged
(11 December 1985 - 9 October 1986: see paragraph 22 above), and only
about five and a half months have elapsed since then.
60. In all, the proceedings complained of have already lasted more
than nineteen years (see paragraph 54 above). Notwithstanding the
complexity of the case, such a length of time is unreasonable in the
circumstances, having regard in particular to the special duty to act
expeditiously entailed by the provisional transfer of land. The
various unjustified delays that have been noted were not attributable
to the applicants themselves but to some of the authorities dealing
with the case. The Government, moreover, admitted that such delays
had occurred. As a result of these delays, viewed together and
cumulatively, the applicants' case was not heard within a reasonable
time as required by Article 6 § 1 (art. 6-1).
II. ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)
61. In the applicants' submission, the provisional transfer of
their land in 1963 interfered with their right of property. They
claimed that they had still not received the compensation in land to
which they were entitled under the provincial legislation and that
they had on this account suffered an "annual loss of 25,700 schillings
in yield" and "45,000 schillings in interest". They alleged a breach
of Article 1 of Protocol No. 1 (P1-1), which provides:
"Every natural or legal person is entitled to the peaceful enjoyment
of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the
right of a State to enforce such laws as it deems necessary to control
the use of property in accordance with the general interest or to
secure the payment of taxes or other contributions or penalties."
The Government challenged this contention, whereas the Commission
62. There has indisputably been an interference with the
applicants' right of property as guaranteed in Article 1 of the
Protocol (P1-1) (see the Marckx judgment of 13 June 1979,
Series A no. 31, p. 27, § 63): on 22 April 1963, their land was
allocated to other landowners, who were parties to the consolidation
scheme, or else used for communal measures or facilities, and they
have not so far secured, by a final decision, the compensation in kind
stipulated by the provincial legislation (see paragraphs 8, 10, 12, 21
63. It remains to be determined whether this interference
contravenes Article 1 of Protocol No. 1 (P1-1).
This provision "comprises three distinct rules". The first rule, set
out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of peaceful enjoyment of property;
the second rule, contained in the second sentence of the same
paragraph, covers deprivation of possessions and makes it subject to
certain conditions; and the third rule, stated in the second
paragraph, recognises that States are entitled, amongst other things,
to control the use of property in accordance with the public interest.
The Court has to consider the applicability of the last two rules
before determining whether the first one has been complied with.
However, the three rules are not "distinct" in the sense of being
unconnected: the second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the general
principle enunciated in the first rule (see, as the most recent
authority, the AGOSI judgment of 24 October 1986, Series A no. 108,
64. The Court notes first of all that the Austrian authorities did
not effect either a formal expropriation or a de facto expropriation
(see the Sporrong and Lönnroth judgment of 23 September 1982, Series A
no. 52, p. 24, §§ 62-63). The transfer carried out in April 1963 was
a provisional one; only the entry into force of a consolidation plan
will make it irrevocable (see paragraph 32 above). The applicants may
therefore recover their land if the final plan does not confirm the
distribution made at the earlier stage of the proceedings.
Accordingly, it cannot be said that the applicants have been
definitively "deprived of their possessions" within the meaning of the
second sentence of the first paragraph of Article 1 (P1-1).
Nor was the provisional transfer essentially designed to restrict or
control the "use" of the land (second paragraph of Article 1) (P1-1),
but to achieve an early restructuring of the consolidation area with a
view to improved, rational farming by the "provisional owners" (see
paragraph 32 above). The transfer must therefore be considered under
the first sentence of the first paragraph of Article 1 (P1-1).
65. For the purposes of this provision, the Court must inquire
whether a proper balance was struck between the demands of the
community's general interest and the requirements of protecting the
fundamental rights of the individual (see the above-mentioned Sporrong
and Lönnroth judgment, p. 26, § 69).
66. It should first be recalled that nearly twenty-four years have
already elapsed since the provisional transfer (22 April 1963 -
24 March 1987: see paragraph 8 above) without the applicants' having
received, under a final consolidation plan, the compensation in land
According to the Government, the length of the proceedings is not a
matter for consideration under Article 1 of Protocol No. 1 (P1-1) if
the Court hasalready ruled it to have been in breach of Article 6 § 1
(art. 6-1) of the Convention. Such an argument is inconsistent with
the Court's case-law, from which it is apparent that one and the
same fact may fall foul of more than one provision of the
Convention and Protocols (see, for example, the Airey judgment of
9 October 1979, Series A no. 32, p. 17, §§ 31-33). Moreover, the
complaint made under Article 6 § 1 (art. 6-1) can be distinguished
from the complaint relating to Article 1 of the Protocol (P1-1). In
the former case, the question was one of determining whether the
length of the consolidation proceedings had exceeded a "reasonable
time", whereas in the latter case their length - whether excessive or
not - is material, together with other elements, in determining
whether the disputed transfer was compatible with the guarantee of
67. It should also be pointed out that the relevant provincial
legislation did not permit any reconsideration of the provisional
transfer, notwithstanding the applicants' successful appeals against
the consolidation plans. Nor does it provide for the possibility of
compensating the applicants financially for the loss they may have
sustained on account of the forced exchange of their land for other,
inferior land pursuant to the provisional transfer (see paragraphs 21,
68. The Court is not unmindful of the legislature's concern,
however. In authorising a provisional transfer at an early stage of
the consolidation process, its intention is to ensure that the land in
question can be continuously and economically farmed in the interests
of the landowners generally and of the community. Furthermore,
although the applicants lost their land in consequence of the transfer
decided on in 1963, they received other land in lieu, even if they are
not satisfied with it. The applicable system, however, suffers from a
degree of inflexibility: before the entry into force of a
consolidation plan, it provides no means of altering the position of
landowners or of compensating them for damage they may have sustained
in the time up to the final award of the statutory compensation in
69. In the circumstances of the present case, therefore, the
necessary balance between protection of the right of property and the
requirements of the public interest was lacking: the applicants, who
remain uncertain as to the final fate of their property, have been
made to bear a disproportionate burden. There is no need at this
stage to determine whether they have suffered actual prejudice (see
the above-mentioned Sporrong and Lönnroth judgment, p. 28, § 73).
70. The Court accordingly finds that there has been a breach of
Article 1 of Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
71. The applicants are claiming compensation in the sum of
919,100 schillings for pecuniary damage and reimbursement of lawyers'
fees, which they put at 248,125.48 schillings.
The Government and the Commission have not yet expressed a view on the
matter, which is consequently not ready for decision. It must be