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You are here: BAILII >> Databases >> European Court of Human Rights >> PRÖTSCH v. AUSTRIA - 15508/89 [1996] ECHR 57 (15 November 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/57.html Cite as: [1996] ECHR 57, (2001) 32 EHRR 12

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In the case of Prötsch v. Austria (1),

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 Rules of Court B (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr I. Foighel,

Sir John Freeland,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr B. Repik,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 28 June and 22 October 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 67/1995/573/659. 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.

2. Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1. The case was referred to the Court by the Government of the

Republic of Austria ("the Government") on 18 August 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 15508/89) against Austria lodged with the European Commission of

Human Rights ("the Commission") under Article 25 (art. 25) on

12 June 1989 by two Austrian nationals, Mr Ludwig and

Mrs Maria Prötsch.

The Government's application referred to Article 48 (art. 48).

The object of the application 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 1 of Protocol No. 1 (P1-1).

2. In response to the enquiry made in accordance with

Rule 35 para. 3 (d) of Rules of Court B, the applicants stated that

they wished to take part in the proceedings and designated the lawyer

who would represent them (Rule 31).

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. 4 (b)). On 5 September 1995, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr F. Gölcüklü, Mr I. Foighel, Mr R. Pekkanen,

Sir John Freeland, Mr M.A. Lopes Rocha, Mr B. Repik and Mr P. Jambrek

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

Subsequently, Mr L. Wildhaber, substitute judge, replaced Mr Pekkanen,

who was unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Government,

the applicants' lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant

to the order made in consequence, the Registrar received the

Government's memorial on 20 March 1996. On 22 May 1996 the applicants

filed claims for just satisfaction under Article 50 of the Convention

(art. 50).

On 3 June 1996 the Commission produced various documents from

the proceedings before it, as requested by the Registrar on the

President's instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 June 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr F. Cede, Ambassador, Legal Adviser,

Federal Ministry of Foreign Affairs, Agent,

Mr D. Hunger, Federal Ministry of Agriculture

and Forestry,

Ms I. Siess, Constitutional Department,

Federal Chancellery,

Ms E. Bertagnoli, International Law Department,

Federal Ministry of Foreign Affairs, Advisers;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicants

Mr E. Proksch, Rechtsanwalt, Vienna Bar, Counsel.

The Court heard addresses by Mr Weitzel, Mr Proksch and Mr Cede

and also replies to its questions.

AS TO THE FACTS

I. Particular circumstances of the case

6. The applicants are Austrian citizens and own a farm at

Niederthalheim, Upper Austria.

A. The consolidation measures

7. Agricultural land-consolidation proceedings

(Zusammenlegungsverfahren) under the Upper Austria Agricultural Land

Planning Act (Flurverfassungs-Landesgesetz - see paragraph 20 below)

were instituted by the Gmunden District Agricultural Authority

(Agrarbezirksbehörde - "the District Authority") in 1972. They

concerned 153 landowners and covered some 606ha. The valuation

(Bewertungsplan - see paragraph 23 below) was adopted in December 1978

without opposition from the interested parties. On 7 October 1980 the

District Authority ordered the provisional transfer of the

compensatory parcels (Grundabfindungen) on the basis of a

draft consolidation scheme (Neueinteilungsplan - see paragraph 25

below). An appeal lodged by the applicants against this order was

rejected by the Upper Austria Land Reform Board (Landesagrarsenat -

"the Upper Austria Board") on 24 April 1981.

8. The consolidation scheme (Zusammenlegungsplan -

see paragraph 26 below) was published in October 1983 and, in its

essence, confirmed the situation created by the provisional

transfer order.

9. On 24 May 1984, following an appeal from the applicants, the

Upper Austria Board held that the parcels allotted to the applicants

were of approximately the same value as the old ones. The Board

pointed out that it did not share the opinion expressed in the

private expert opinion submitted by the applicants, according to which

the yield of their compensatory parcels was below that of the

applicants' former property. On the contrary, it held that, on the

whole, the agricultural performances under the new situation were at

least as good as under the old one and dismissed the bulk of the

applicants' arguments. However, with reference to a plot measuring

2.2ha (plot no. 4738), the Board held that while not illegal its

configuration could be rendered more functional (zweckmäßiger). It

therefore quashed the part of the consolidation scheme concerning that

plot and ordered that the District Authority re-examine the issue. The

applicants appealed against this decision.

10. On 3 April 1985 the Supreme Land Reform Board

(Oberster Agrarsenat - "the Supreme Board") quashed the decision of

24 May 1984 and referred the case back to the Upper Austria Board

following the applicants' argument that the appeal could not be partly

dismissed, as the applicants' claims for compensatory parcels were an

indivisible whole. It further held, inter alia, that the question of

lawfulness (Gesetzmäßigkeit) also included considerations of

functionality.

11. On 11 July 1985, in compliance with the Supreme Board's

decision, the Upper Austria Board set the consolidation scheme aside.

The Board again pointed out that it did not share the opinion expressed

in the private expert opinion submitted by the applicants. It

established that the compensatory parcels attributed to the applicants

were, on the whole, more advantageous, but that they also contained

some negative aspects.

The advantages were (a) the reduction of the splitting up of

the plots and the resulting increase in the average size of the plots;

(b) the reduction of the length of boundaries and the concomitant

abolition of unproductive plots; (c) a better balance between length

and width of the plots; and (d) better access.

The negative aspects were (e) the diminution of the average

comparative values of the parcels (by 2.3%); (f) the increase of

average distance from the farm (by 2%); (g) the slight increase of

forest border; (h) the inappropriate configuration of plot no. 4733;

(i) the hook-like form of plot no. 4738 and the circuit line pylons on

this plot part of which was unproductive.

12. The Board concluded that the lawfulness of the compensatory

measures was still in question. The file was referred to the

District Authority for the adoption of a new scheme.

13. In January 1986 the District Authority published a new

consolidation scheme. The applicants also appealed against this

scheme. Although they were now in agreement with the new land

allocation, they demanded that the boundaries of one of their plots be

straightened (Grenzbegradigung) and that their share in the costs of

communal measures and facilities - 95,000 Austrian schillings (ATS) -

(see paragraph 24 below) - be scrapped or reduced to a minimum.

14. On 18 September 1986, the Upper Austria Board dismissed the

applicants' appeal. It observed that the number of plots in the

applicants' possession had been reduced from seventeen to nine, whilst

the difference in value between the new and the old land did not even

attain 1%, well below the statutory maximum of 20%. All in all, the

consolidation measures had led to an increase in productivity which

compensated for certain small disadvantages.

The applicants lodged a complaint with the Constitutional Court

(Verfassungsgerichtshof), which, in summary proceedings, refused to

deal with the complaint and referred the case to the

Administrative Court (Verwaltungsgerichtshof) which, in its turn,

decided to discontinue the proceedings for procedural reasons in

February 1988.

B. The application for financial compensation

15. On 26 January 1988 Mr and Mrs Prötsch had applied for

financial compensation in respect of the damages allegedly caused to

them by the fact that they had received insufficient

compensatory parcels by the provisional transfer which at that time was

still in force. They submitted an expert opinion according to which

they had suffered a loss of crops in the amount of approximately

ATS 210,000 between 1980 and 1987.

16. On 22 February 1988 the District Authority rejected the

applicants' claim as being inadmissible. It observed that the

Agricultural Land Planning Act did not provide for any compensation in

respect of damage suffered in the period between the provisional

transfer and the assignment of lawful compensatory parcels by the

final consolidation scheme (see paragraph 27 below). In addition, the

agricultural authorities were only competent to decide on facts

concerning the implementation of the consolidation.

17. The applicants' appeal to the Upper Austria Board was dismissed

on 7 July 1988 on the ground that there was neither a legal nor a

factual basis for a claim for financial compensation in their case.

In the latter respect, the Board pointed out that it had examined and

rejected the applicants' private expert opinion already in its decision

of 11 July 1985 (see paragraph 11 above). Although the original

consolidation scheme had had to be quashed in consequence of the

applicants' appeal, this did not mean that the applicants had suffered

damage. In the instant case, it had been found in the earlier decision

that among the total of 17ha of compensatory parcels allotted to the

applicants only the configuration of one measuring some 2.2ha

(no. 4738) was objectionable. On the other hand, the applicants had

also gained certain advantages. Therefore the Board maintained the

opinion already expressed in its earlier decisions that the applicants

had not suffered any damage as far as yield and exploitation conditions

were concerned.

18. The applicants challenged this decision before the

Administrative Court alleging that the authorities had the duty to

apply the provisions of the civil law. The Administrative Court,

however, found that the administrative authorities were not competent

to decide on compensation claims of a civil-law nature and dismissed

the complaint on 27 September 1988.

19. The applicants lodged a complaint with the Constitutional Court

invoking Article 6 of the Convention (art. 6) and Article 1 of

Protocol No. 1 (P1-1). The Constitutional Court considered that in the

light of its constant case-law the complaint did not have any prospects

of success and, on 28 February 1989, refused to deal with it. In

summary proceedings it observed, inter alia, that the facts in the

applicants' case were different from those in the case of

Erkner and Hofauer v. Austria (judgment of 23 April 1987, Series A

no. 117 - see paragraph 38 below) in that the consolidation scheme had

already been published and that the applicants had never complained of

the unreasonable length of the proceedings.

II. Relevant domestic law and practice

A. Agricultural legislation

1. The consolidation of agricultural land

20. The basic rules applying to the consolidation of

agricultural land, as applicable to the present case, are embodied in

the Federal Agricultural Land Planning (General Principles) Act

(Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. Each Land

has enacted its own agricultural and land planning legislation

(Flurverfassungs-Landesgesetze) to regulate the matters of its

competence within the federal framework.

In the Land of Upper Austria, consolidation is governed by the

Agricultural Land Planning Act 1979 ("the 1979 Act").

21. The purpose of consolidation is to improve the infrastructure

and the pattern of agricultural holdings in a given area (section 1 (1)

of the 1979 Act). It comprises communal measures and facilities and

redistribution of land. The operation takes place in the following

stages:

(a) initial proceedings;

(b) ascertainment of the occupiers of the land in question and

assessment of its value;

(c) planning of communal measures and facilities;

(d) provisional transfer of land, where appropriate;

(e) adoption of the consolidation scheme.

None of these stages may begin until the previous stage has

been terminated with a final decision.

22. The initial proceedings, which the authorities institute of

their own motion, serve to determine the consolidation area, which, in

addition to farmland and forest, may include land voluntarily offered

for consolidation and land required for communal facilities

(sections 2 and 3). The owners form an association

(Zusammenlegungsgemeinschaft), which is a corporate body governed by

public law.

The institution of proceedings means that land use is

restricted until the proceedings are concluded; any change in use must

be approved by the appropriate agricultural authority. This authority

has exclusive jurisdiction, inter alia, over disputes concerning

ownership and tenure of land in the consolidation area (section 102).

23. Once the decision to open proceedings has become final, the

agricultural authority ascertains who are the occupiers of the land and

assesses its value (sections 11 and 12). Its decision

(Besitzstandsausweis und Bewertungsplan) determines the value of the

land in accordance with precise statutory criteria (section 13). Each

of the landowners involved may challenge the valuation not only of his

own land but also of the land of the others. Once the

agricultural authority's decision has become final, however, it is

binding on all of them.

24. Communal measures (such as soil improvement, alterations to

terrain or landscape) and communal facilities (private roads, bridges,

ditches, drainage and irrigation) are ordered, where they are needed,

in a specific decision by the relevant authority (Plan der gemeinsamen

Maßnahmen und Anlagen), which must also settle the question of costs,

these usually being shared by the landowners.

25. Under section 22 of the 1979 Act, land may be provisionally

transferred before the adoption of the consolidation scheme, even if

some owners object.

Decisions by the competent authorities ordering

provisional transfers are not appealable; but section 7 of the

Federal Agricultural Authorities Act 1950 (Agrarbehördengesetz, as

amended in 1974 - "the 1950/1974 Federal Act") provides that the

final decision shall lie with the Land Board (Landesagrarsenat), except

in cases where an appeal lies to the Supreme Board (Oberster Agrarsenat

- see paragraph 30 below).

The main purpose of provisional transfer is to ensure that the

consolidation area is rationally cultivated during the interim period.

The land transferred becomes the property of the transferees subject

to a condition subsequent: ownership of it reverts to the

original owner if the allocation is not confirmed in the

final consolidation scheme (Eigentum unter auflösender Bedingung,

section 22 (2)). This provisional, conditional ownership is, as a

rule, not entered in the land register since it is possible that the

parties concerned may be allotted other parcels once the proceedings

are completed. The District Authority has to authorise any entry in

the land register (sections 94 et seq.).

26. At the end of the proceedings, the agricultural authority

adopts the consolidation scheme (Zusammenlegungsplan, section 21).

Since 1977 this has to be published within three years of the

final decision provisionally to transfer parcels of land

(section 7a (4) of the 1950/1974 Federal Act), failing which the person

concerned may request the higher authority to assume jurisdiction. The

adoption of the scheme is an administrative act which is supported by

maps and other technical data, and whose main function is to determine

the compensation due to the landowners who are parties to the

proceedings. The 1979 Act includes the following regulations on this

matter:

(a) 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;

(b) 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);

(c) 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));

(d) claims for financial compensation have to be submitted

within six months from the date on which the consolidation scheme

becomes final (section 20 (6)).

27. The legislation of the Länder did not at the material time

provide for any financial compensation for damage suffered, before a

final consolidation scheme came into force, by landowners who had

successfully challenged the lawfulness of compensation received through

transfer of land.

28. Following the judgments of the European Court of Human Rights

of 23 April 1987 in the cases of Erkner and Hofauer cited above and

Poiss v. Austria (Series A no. 117), Austrian legislation has been

amended to the effect, inter alia, that, once it is found that

compensatory parcels were not lawfully allocated, the concerned parties

may apply for financial compensation (section 10 (5) to (7) of the

Federal Agricultural Land Planning (General Principles) Act). The new

legislation came into force on 1 January 1994.

2. The agricultural authorities

29. The first-instance authority in Upper Austria is the

District Agricultural Authority, which is a purely administrative body.

The higher authorities are the Upper Austria Land Reform Board,

established at the Office of the Land Government (Amt der

Landesregierung), and the Supreme Land Reform Board, set up within the

Federal Ministry of Agriculture and Forestry (Bundesministerium für

Land- und Forstwirtschaft). These boards include judges and constitute

a kind of "specialised administrative tribunal".

30. Decisions of the District Authority can be challenged by way

of appeal to the Land Board, whose decision is final except where it

varies the decision in question and where the dispute concerns one of

the issues listed in section 7 (2) of the 1950/1974 Federal Act, such

as the lawfulness of the compensation in the event of

land consolidation; in such cases an appeal lies to the Supreme Board.

The executive can neither set aside nor vary the decisions of

these three bodies, but they can be challenged in the

Administrative Court (section 8 of the 1950/1974 Federal Act and

Article 12 para. 2 of the Federal Constitution).

31. Procedure before the land-reform boards is governed by the

1950/1974 Federal Act, section 1 of which stipulates that the

General Administrative Procedure Act - except for one section of

no relevance in the instant case - shall apply, subject to the

variations and additional provisions made in the 1950/1974 Federal Act.

The boards are responsible for the conduct of the proceedings

(section 39 of the General Administrative Procedure Act). By

section 9 (1) and (2) of the 1950/1974 Federal Act, the boards take

their decisions after a private hearing.

Boards must determine cases without undue delay (ohne unnötigen

Aufschub) and in any event not later than six months after an

application has been made to them (section 73 (1)). If the board's

decision is not notified to the parties concerned within that time,

they may apply to the higher authority, which will thereupon acquire

jurisdiction to determine the merits (section 73 (2)). If the latter

authority fails to give a decision within the statutory time-limit,

jurisdiction passes - on an application by the interested party - to

the Administrative Court (Article 132 of the Federal Constitution and

section 27 of the Administrative Court Act).

B. Appeals to the Constitutional Court and the

Administrative Court

32. The decisions of land-reform boards can be challenged in the

Constitutional Court which will determine, inter alia, whether there

has been any infringement of the applicant's rights under the

Constitution (Article 144 of the Federal Constitution).

33. As an exception to the general rule laid down in

Article 133 para. 4 of the Federal Constitution, section 8 of the

1950/1974 Federal Act provides for an appeal to the

Administrative Court against the decisions of land-reform boards.

Application may be made to the Administrative Court before or after an

application to the Constitutional Court. The latter will, if it rules

that there has been no infringement of the right relied on in the

application to it and if the applicant so requests, refer the case to

the Administrative Court (Article 144 para. 3 of the

Federal Constitution).

Under Article 130 of the Federal Constitution, the

Administrative Court determines applications alleging the unlawfulness

of an administrative act or a breach by a competent authority of its

duty to make a decision. It also hears appeals against decisions of

boards whose members include judges - such as the land-reform boards

(see paragraph 29 above) - where such jurisdiction is conferred on it

by statute.

PROCEEDINGS BEFORE THE COMMISSION

34. Mr and Mrs Prötsch applied to the Commission on 12 June 1989.

They relied on Article 1 of Protocol No. 1 (P1-1), complaining of the

impossibility of obtaining compensation in respect of temporary

disadvantages which they allegedly suffered in connection with

agricultural land-consolidation proceedings. They further complained,

under Article 6 of the Convention (art. 6), that the Land Reform Board

lacked impartiality.

35. On 31 August 1994 the Commission declared the application

(no. 15508/89) admissible as far as the complaint under Article 1 of

Protocol No. 1 (P1-1) was concerned. In its report of 5 April 1995

(Article 31) (art. 31) it expressed the opinion, by nine votes to two,

that there had been a violation of that provision (P1-1). The full

text of the Commission's opinion and of the dissenting opinion

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and Decisions 1996-V),

but a copy of the Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

36. At the hearing, the applicants requested the Court to hold that

in the present case Austria had acted in violation of Article 1 of

Protocol No. 1 (P1-1).

The Government, for their part, asked the Court to conclude

that the interferences with the applicants' property rights could not

be regarded as unreasonable in the light of the requirements of the

general interest on which consolidation proceedings are based and that,

therefore, there were no grounds to assume that a breach of Article 1

of Protocol No. 1 (P1-1) had taken place.

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

37. Mr and Mrs Prötsch complained that their inability to obtain

financial compensation for the loss of yield from the compensatory

parcels provisionally allocated to them was in violation of Article 1

of Protocol No. 1 (P1-1), 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 (P1-1) 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 Commission agreed with the applicants' claim whereas the

Government, whilst accepting that there had been an interference with

the applicants' right of property, contested the claim.

38. The applicants alleged that, as a result of the

provisional transfer arrangements (see paragraph 7 above), they had

been allotted land of less value than that which they had previously

held and that, in consequence, they had suffered a yearly loss in the

region of ATS 30,000 for a period of seven years, their total loss

therefore amounting to ATS 210,000. They emphasised that this damage

was only imputable to the lesser yield of the parcels provisionally

allocated to them.

The applicants further submitted that, at the material time,

the legislation did not provide for financial compensation in respect

of damage suffered (see paragraph 27 above). Although

legislative changes have now been introduced (see paragraph 28 above),

these only came into force in January 1994. Accordingly, as far as the

applicants' rights for financial compensation were concerned, the

situation was identical to that obtaining in the cases of

Erkner and Hofauer v. Austria and Poiss v. Austria (judgments of

23 April 1987, Series A no. 117), where the Court had found a violation

of Article 1 of Protocol No. 1 (P1-1).

39. In the Commission's view, the applicants' case differed very

little from the other land-consolidation cases mentioned in the

preceding paragraph. Although in the present case the time that

elapsed between the provisional transfer of land and the coming into

force of the consolidation scheme was considerably shorter, the

Commission considered that a period of six years, in a situation where

no action for compensation was open to the applicants, still imposed

on them an individual and excessive burden which was contrary to the

Convention.

At the hearing, the Delegate of the Commission submitted that

the present case was distinguishable from that of Wiesinger v. Austria

(judgment of 30 October 1991, Series A no. 213), in that, unlike

Mr and Mrs Prötsch, the applicants in the Wiesinger case had

voluntarily joined the consolidation proceedings and had not opposed

the provisional transfer (p. 25, para. 70).

40. The Government denied that the applicants ever suffered any

material damage as a result of the provisional transfer. Therefore,

the question whether the applicants were able to bring an action for

compensation was wholly irrelevant in this case. They further

contended that, in the light of the requirements of the

general interest on which consolidation proceedings are based, a period

of six years cannot be considered unreasonable, particularly when

regard is had to the highly complex questions that the

Austrian authorities had to examine.

41. In interpreting Article 1 of Protocol No. 1 (P1-1), the Court

refers to its long-established case-law (see, among many other

authorities, the Pressos Compania Naviera S.A. and Others v. Belgium

judgment of 20 November 1995, Series A no. 332, pp. 21-22, para. 33).

42. The transfer of land - whose lawfulness the applicants

contest - could not amount, by the very essence of its provisional

nature, to a "deprivation of possessions", within the meaning of the

second sentence of the first paragraph of Article 1 (P1-1-1). Again,

this provisional transfer was essentially designed not to restrict or

control the "use" of the land (second paragraph of Article 1) (P1-1-2),

but to achieve an early restructuring of the consolidation area with

a view to improved, rational farming by the "provisional owners"

(see paragraph 25 above). The transfer must therefore be considered

under the first sentence of the first paragraph of Article 1 (P1-1-1)

(see, on this point, the above-mentioned Wiesinger judgment, p. 26,

para. 72).

43. For the purposes of this provision (P1-1-1), 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.

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

(ibid., p. 26, para. 73).

44. According to the relevant legislation (see paragraph 21 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 interests of both the

landowners concerned and the community as a whole by increasing the

profitability of holdings and rationalising cultivation (see the

above-mentioned Wiesinger judgment, p. 26, para. 74). This has not

been challenged by the applicants, who have concentrated their claim

on the inadequate way in which the provisional transfer process was

carried out and on its allegedly unreasonable length.

45. As to the alleged inadequacy of those procedures which - in the

applicants' submission - resulted in a decreased productivity of the

compensatory parcels allocated to them and ensuing financial damage,

the Court observes that it was open to Mr and Mrs Prötsch to contest

the lawfulness of that allocation once the consolidation scheme was

published. Indeed, they used this possibility and filed an appeal in

October 1983 against the original consolidation scheme. The thrust of

their complaints was rejected by the Upper Austria Board on the ground,

inter alia, that the parcels allotted to the applicants were of

approximately the same value as their former holdings and that, on the

whole, the agricultural performances under the new situation were at

least as good as under the old one. It is to be noted that the Board

only accepted that the configuration of a relatively small plot (2.2ha)

should be re-examined by the District Authority with a view to making

it more functional (see paragraph 9 above).

In January 1986, the applicants filed a fresh appeal against

the amended consolidation scheme. The Upper Austria Board dismissed

it by holding, inter alia, that the number of plots in the applicants'

possession had been reduced from seventeen to nine, while the

difference in value between the new and the old land did not even

attain 1%. It further held that, all in all, the consolidation

measures had led to an increase in productivity which compensated for

certain small disadvantages (see paragraph 14 above).

46. Concerning the length of the consolidation proceedings, the

Court notes that the facts in issue are clearly distinguishable from

those in the cases of Erkner and Hofauer and Poiss (cited above at

paragraph 38). Whereas in those cases the consolidation scheme had not

yet been finally adopted at the time of the Court's ruling - the

provisional transfer of parcels having lasted for an extensive period

of time -, in the present case a first consolidation scheme was

published only three years after the provisional transfer was effected

(see paragraph 8 above). Following an appeal by Mr and Mrs Prötsch,

a final scheme - including some improvement in respect of the

applicants - came into force three years later (see paragraph 13

above). The status of provisional transfer was therefore maintained

for a total of six years, well below the periods endured by the

applicants in the above-mentioned cases (between sixteen and

twenty-four years). In these circumstances, having regard to the

statutory aim of the provisional transfer, a period of six years cannot

be considered, in itself, to be unreasonably long.

47. Furthermore, the Court notes that the domestic authorities were

able to examine the applicants' allegations of damage resulting from

the provisional allocation of land which essentially corresponded to

the situation arising from the consolidation scheme (see paragraph 8

above). Their conclusion was invariably that the applicants had

suffered no damage as a result of the consolidation measures

(see paragraphs 9 and 11 above). On the contrary, they singled out

some clear advantages, such as the substantial reduction in the number

of plots exploited by the applicants.

48. Having regard to all the circumstances mentioned above, 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.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 1 of

Protocol No. 1 (P1-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 15 November 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar