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FIRST
SECTION
CASE OF ORTNER v. AUSTRIA
(Application
no. 2884/04)
JUDGMENT
STRASBOURG
31 May
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ortner v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mrs E.
Steiner,
Mr D. Spielmann,
Mr S.E.
Jebens,
Mr G. Malinverni, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 10 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2884/04) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by an Austrian national, Mr Anton
Ortner (“the applicant”), on 15 January 2004.
- The
applicant was represented by Mr E. Stöger, a lawyer practising
in Innsbruck. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
- On
7 December 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Tristach.
- On
27 February 1968 the Agricultural Authority (Agrarbezirksbehörde)
instituted land consolidation proceedings (Zusammenlegungsverfahren)
involving the applicant's property. The applicant did not appeal.
- On
26 April 1974 the Agricultural Authority issued the occupation and
valuation schedule (Besitzstandsausweis und Bewertungsplan).
- By
letter of 26 May 1995 the applicant requested that his property be
excluded from the consolidation proceedings.
- By
decision of 13 January 1999 the Agricultural Authority notified the
parties to the land consolidation proceedings that a valuation plan
concerning the electric installations was held at their disposal at
the office of the Tristach municipality and could be consulted during
two weeks. The applicant appealed on 23 February 1999 against this
notification to the Provincial Land Reform Board (Landesagrarsenat).
He submitted in particular that the occupation and valuation schedule
had not been duly served on him. Moreover, he noted that his request
to exclude his land from the consolidation proceedings had still not
been dealt with. He repeated this request and claimed, in general
terms, that he did not have any interest in the land consolidation at
issue.
- On
1 March 1999 the Agricultural Authority dismissed the applicant's
request of 26 May 1995 to exclude his property from the consolidation
proceedings. It noted that an exclusion of property was not
admissible, once the occupation and valuation schedule had become
final. The applicant appealed against this decision, alleging that
the occupation and valuation schedule had neither been served on him
nor had it been duly published. Moreover, a new valuation would be
required in the circumstances.
- On
29 April 1999 the Provincial Land Reform Board dismissed the
applicant's appeal. It found that the occupation and valuation
schedule had been served in accordance with the relevant procedural
rules.
- On
27 May 1999 the Provincial Land Reform Board dismissed the
applicant's appeal against the notification of 13 January 1999. It
noted that the occupation and valuation schedule had become final.
The additional valuation of electric installations had become
necessary by a change in law and had been carried out correctly.
Further it noted that the question whether a revision of the original
occupation and valuation scheme was required was not the subject of
the present appeal proceedings.
- The
applicant filed complaints with the Administrative Court
(Verwaltungsgerichtshof) against both decisions of the
Provincial Land Reform Board. He repeated in essence the arguments he
had raised before that Board. The Administrative Court received his
complaints on 4 June and 21 July 1999, respectively. Upon the
Administrative Court's request the applicant amended his complaint
against the Provincial Land Reform Board's decision concerning the
electric installations.
- The
Provincial Land Reform Board filed observations with the
Administrative Court on 18 August and 28 October 1999, respectively.
- On
3 July 2003 the Administrative Court, having joined the applicant's
complaints, dismissed them. It confirmed the Provincial Land Reform
Board's legal assessment.
- On
13 April 2005 the Agricultural Authority held a hearing concerning
the additional valuation of electric installations. It issued a
decision on this subject on 19 April 2005.
- On
3 January 2006 the applicant filed an application under Section 73
of the General Administrative Proceedings Act (Allgemeines
Verwaltungsverfahrensgesetz) complaining that the proceedings,
which were pending since 1968 were still not terminated and that the
Agricultural Authority had only held one hearing since mid 2003.
- The
Provincial Land Reform Board, on 2 March 2006, dismissed the
application under Section 73 of the GAPA as being inadmissible. It
noted that such an application was only available where the authority
had failed to decide on a specific application or on an appeal of a
party. The applicant had not filed any specific application.
- No
consolidation scheme has been issued to date. Therefore, the
proceedings are still pending.
II. RELEVANT DOMESTIC LAW
- Section
73 of the General Administrative Proceedings Act (Allgemeines
Verwaltungsverfahrensgesetz) deals with the administrative
authorities' duty to decide. So far as relevant, it reads as follows:
“(1) Subject to any contrary provision
in the administrative regulations, the authorities must give a
decision on applications by parties ... and appeals without
unnecessary delay, and at the latest six months after the application
or appeal has been lodged.
(2) If the decision is not served on the
party within this time-limit, jurisdiction will be transferred to the
competent superior authority upon the party's written request
(Devolutionsantrag). ...This request has to be refused by the
competent superior authority if the delay was not caused by
preponderant fault of the authority.
(3) The period for giving a decision by the
superior authority runs from the date the request for transfer of
jurisdiction was lodged with it.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the land consolidation
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. The period to be taken into consideration
- The
Government argued that two sets of proceedings have to be
distinguished in the present case, namely the proceedings concerning
the applicant's request of 26 May 1995 to exclude his property from
the land consolidation proceedings and the proceedings concerning the
valuation of the electric installations, which started on 13 January
1999. While they did not submit any argument as regards the latter,
they asserted that the first set of proceedings was not to be taken
into account. In their view it did not concern a dispute over the
applicant's civil rights and obligations as no right to appeal
against the inclusion of property in the land consolidation
proceedings lies, once the valuation and occupation schedule has
become final.
- The
applicant submitted that the land consolidation proceedings are to be
seen as a whole and are not to be split up into separate sets of
proceedings. He takes February 1968 as the starting point for the
calculation of the duration of the proceedings and, thus, argues that
they have already lasted some thirty-nine years.
- The
Court finds that the land consolidation proceedings at issue are to
be regarded as a whole for the purpose of assessing their length (see
Wiesinger v. Austria, judgment of 30 October 1991, Series A
no. 213, p. 20, § 52). However, in accordance with its case-law
in similar cases, the date when a “dispute” arose is to
be taken as a starting point for the calculation of the length of
proceedings (see Kolb and Others v. Austria, nos.
35021/97 and 45774/99, § 49, 17 April 2003, and Kern v.
Austria, no. 14206/02, § 51, 24 February 2005).
Consequently, the period to be taken into consideration began on
26 May 1995, when the applicant requested that his property be
excluded from the proceedings. The Court notes that these proceedings
concerned the validity of the inclusion of the applicant's property
in the land consolidation proceedings and, thus, a dispute which was
directly decisive for the applicant's civil rights and obligations.
The proceedings have not yet ended since the consolidation plan has
not yet been adopted. They have thus lasted for almost twelve years.
2. The Government's objection based on non-exhaustion
of domestic remedies
- The
Government argued that the applicant failed to exhaust domestic
remedies in the proceedings concerning his request to exclude his
property from the land consolidation proceedings since he did not
make use of the application for transfer of jurisdiction pursuant to
Section 73 of the General Administrative Proceedings Act.
- The
applicant contested the Government's view, arguing that land
consolidation proceedings did for the most part not depend on
applications or appeals of the parties but were to be conducted ex
officio by the authorities. In fact, a request for transfer of
jurisdiction pursuant to Section 73 which he submitted on 3 January
2006 remained unsuccessful. In any case, the main delays in the
present proceedings occurred before the Administrative Court. No
remedy lies against the length of proceedings before that court.
- The
Court reiterates that an application for transfer of jurisdiction is
in principle an effective remedy as regards complaints about the
length of proceedings before administrative authorities (see Egger
v. Austria (dec.), no. 74159/01, 9 October 2003) and also in
the specific context of the length of land consolidation proceedings
(see Kern, cited above, § 49). The applicant did not make
use of this remedy as regards the delay caused by the Agricultural
Authority, which did not decide on his application of 26 May 1995
until 1 March 1999. The Court is not convinced by the
applicant's argument since this part of the proceedings concerned an
application filed by him and the request under Section 73 of the
General Administrative Proceedings Act was therefore available. The
applicant has therefore failed to exhaust domestic remedies for the
period from 26 May 1995 until 1 March 1999. Thereafter no delays
occurred before the Provincial Land Reform Board and no remedy lies
against delays caused by the Administrative Court.
- It
follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic remedies as
far as the period from 26 May 1995 until 1 March 1999 is concerned.
- Consequently,
the Court can only examine the remaining period after 1 March
1999. Since the land consolidation proceedings are still pending, the
relevant period has so far lasted more than eight years.
- The
Court notes that this part of the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant maintained that lengthy periods of inactivity were
attributable to the authorities. The Government contested this.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Kolb and Others, cited above, § 56, which
concerned land consolidation proceedings which lasted between 7 years
and 8 months and 10 years and 4 months, respectively).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Although land consolidation proceedings are by their very nature
complex (see Wiesinger, cited above, p. 21, § 55), the
Court notes in particular that considerable delays occurred in the
proceedings before the Administrative Court. The latter remained
inactive between 28 October 1999 and 3 July 2003, that is for a
period of three years and eight months. It appears that following the
Administrative Court's decision only one hearing was held in April
2005, while the consolidation plan has still not been adopted. In
sum, the Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the land consolidation proceedings involve
a number of limitations on the use of his property which he considers
to be excessive in view of their length. He relies on Article 1 of
Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
Admissibility
- The
Court has found in previous cases that the provisional transfer of
land constitutes an interference with the right to property of land
owners concerned. A violation may arise where there is an imbalance
between the general interest pursued by the consolidation proceedings
and the rights of the individual or, in other words, where the
individual has to bear a disproportionate burden (see Erkner and
Hofauer v. Austria, judgment of 23 April 1987, Series A no.
117, pp. 66-67, §§ 75-79). However, the applicant has not
substantiated his complaint. He has not submitted any argument to
show that he was made to bear a disproportionate burden. The mere
length of the proceedings is not sufficient to show a breach of
Article 1 of Protocol No. 1 (see Wiesinger, cited above,
§ 77).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 35,000 euros (EUR) in respect of pecuniary damage.
He alleges that he suffered losses on account of the limitations
placed on the use of his property by the land consolidation
proceedings. Moreover, he claimed EUR 70,000 for non-pecuniary
damage.
- The
Government contested these claims. They asserted that there was no
causal link between the length of the proceedings and the pecuniary
damage claimed. As to non-pecuniary damage, they noted that he
applicant has not explained to what extent he suffered such damage.
- The
Court notes that the applicant has not substantiated his claim for
pecuniary damage. It therefore dismisses the applicant's claim.
However, having regard to its case-law in comparable cases (see Kolb
and Others, cited above, § 67), and ruling on an equitable
basis, the Court awards the applicant EUR 5,500 under the head of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,439.16 for the costs and expenses
incurred in the domestic proceedings and EUR 1,373.94 for those
incurred before the Court. These sums include value-added tax (VAT).
- The
Government commented that the costs of the domestic proceedings were
not incurred in order to prevent or redress the violation at issue.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- In
the present case, the Court observes that the costs of the domestic
proceedings were not incurred in order to prevent or redress the
unreasonable duration of the proceedings. As to the costs incurred in
the Convention proceedings, the Court notes that the application was
only partly declared admissible. The Court considers it reasonable to
award the applicant the sum of EUR 1,000 under his head. This sum
includes VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible, as far as the period after
1 March 1999 is concerned and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,500 (five thousand five
hundred euros) in respect of non-pecuniary damage and EUR 1,000 (one
thousand euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
