Protsch v. Austria (67/1995/573/659) 15 November 1996: Interference (provisional transfer of land) considered -- need for a proper balance between demands of community's general interest and requirements of protecting fundamental rights of individual - - temporary disadvantage may be justified in the general interest if not disproportionate to aim pursued. -- Aim of consolidation: improve infrastructure and pattern of agricultural holdings.

Article 1 of Protocol No. 1

Interference (provisional transfer of land) considered under first sentence of first paragraph of Article 1 - need for a proper balance between demands of community's general interest and requirements of protecting fundamental rights of individual - temporary disadvantage may be justified in the general interest if not disproportionate to aim pursued.

Aim of consolidation: improve infrastructure and pattern of agricultural holdings - not disputed by applicants who complained of inadequacy and length of transfer-of-land proceedings.

(a) Inadequacy - Upper Austria Land Reform Board twice held that parcels allotted to applicants were of approximately same value as old ones and agricultural performances at least as good;

(b) Length - final consolidation scheme came into force six years after transfer of land - period not unreasonable in itself having regard to aim of proceedings.

Domestic courts examined applicants' damage allegations - found that no damage had been suffered by applicants - singled out some net advantages.

 

Conclusion: no violation (unanimously).

The applicants are Austrian citizens and own a farm at Niederthalheim, Upper Austria.

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, 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, 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 was concerned. In its report of 5 April 1995 (Article 31) it expressed the opinion, by nine votes to two, that there had been a violation of that provision

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.

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 had taken place.

AS TO THE LAW

ALLEGED BREACH OF ARTICLE 1 OF PROTOCOL NO. 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, 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."

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 . Although legislative changes have now been introduced , 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 and Poiss previously cited, where the Court had found a violation of Article 1 of Protocol No. 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, § 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 to the Convention, 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, § 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. Again, this provisional transfer was essentially designed not to restrict or control the "use" of the land (second paragraph of Article 1), 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 (see, on this point, the above-mentioned Wiesinger judgment, p. 26, § 72).

43. For the purposes of this provision, 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, § 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, § 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 (2.2 ha) 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 one percent. 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 at issue are clearly distinguishable from those in the cases of Erkner, Hofauer and Poiss (cited above at paragraph 38). Whereas in these 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 has been established.

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