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FIRST
SECTION
CASE OF PFEIFENBERGER v. AUSTRIA
(Application
no. 6379/08)
JUDGMENT
STRASBOURG
4 October
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Pfeifenberger v. Austria,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Peer Lorenzen,
President,
Elisabeth Steiner,
Khanlar Hajiyev,
judges,
and André Wampach,
Deputy
Section Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 6379/08) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by two
Austrian nationals, Mr Josef Pfeifenberger and Mrs Annemarie
Pfeifenberger (“the applicants”),
on 28 January 2008.
2. The
applicants were represented by Mr A. Pirkner, a lawyer practising in
Tamsweg. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal
Ministry of European and International Affairs.
- On
27 August 2009 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1949 and 1952 respectively and
live in Muhr.
- The
applicants were members of an agricultural association
(Agrargemeinschaft). The agricultural estate of which they are
joint owners, accounts for 835 of a total of 3654 shares in that
association. The association covers some 377 hectares of land.
According to the Government access to some of the land, situated at
high altitudes, is difficult and is restricted for the major part of
the year due to weather conditions. The applicants contested this.
According to them access is possible for six to eight months per
year.
- On
3 June 1983 the applicants filed a request to end their membership,
asking for the partition of their property from the remainder of the
agricultural association’s land. On 1 September 1983 another
member of the agricultural association, L., also filed a request for
partition.
A. The initial proceedings on the admissibility of the
applicants’ partition request
- The
first stage of partition proceedings serves to establish whether the
request can be admitted. A rough examination has to be carried out in
order to assess whether the cultivation of other parts of the
agricultural association and its overall economic needs would not be
jeopardized by the partition. At the end of these proceedings the
request is either dismissed or admitted. In the second case, the
partition proceedings in the narrower sense will follow.
- The
Salzburg Regional Government acting as Agricultural Authority of
First Instance (Landesregierung als Agrarbehörde I. Instanz,
the “Agricultural Authority”) held hearings on both
requests on 15 August 1984, 25 September and 17 December 1985, 5
February 1986 and 30 July 1986. Between hearings, expert opinions
were commissioned.
- The
Agricultural Authority dismissed the applicants’ request for
partition on 7 November 1986 while it had admitted the other owner’s
request on 14 October 1986. Upon the applicants’ appeal and
after having obtained further clarification from them, the Regional
Land Reform Board (Landesagrarsenat, the “Regional Board”)
quashed the impugned decision on 5 June 1987 and remitted the
case back to the Agricultural Authority.
- The
Agricultural Authority obtained further expert opinions and held
hearings on 16 March 1988 and 25 January 1989. It dismissed the
applicants’ request for a second time on 2 January 1990.
- The
applicants appealed again. The Regional Board, having obtained
further expert opinions in particular on the question how the
partition would affect the association’s hunting activities,
held hearings on 14 December 1990 and on 21 February 1992. On the
latter date the Regional Board granted the appeal and decided that
partition proceedings were to be instituted.
- The
agricultural association and some of its members lodged a complaint
with the Constitutional Court (Verfassungsgerichtshof). On
12 October 1992 the Constitutional Court declined to deal with
the complaint, and transferred it to the Administrative Court
(Verwaltungsgerichtshof) which dismissed it on 20 April 1993.
B. The partition proceedings in the narrower sense
- The
second stage of the proceedings concerns the partition itself. If the
members of the agricultural association cannot agree to the partition
plan, as in the present case, investigative proceedings have to be
conducted, including surveying of the outer boundaries of the
association, braking down the entire land of the association into
quality sections, valuating the different sections and elaborating
partition alternatives, each of which has to be evaluated by experts
on forestry, farming, hunting and agricultural technology. If
necessary, compensation for other members of the association has to
be fixed. In the present case the partition proceedings were
conducted jointly for the applicants’ request and for L.’s
request.
- As
the Agricultural Authority failed to issue a decision within the
statutory time-limit, the applicants applied for a transfer of
jurisdiction (Devolutionsantrag) to the superior authority on
11 May 1994. The Regional Board allowed the application on 15 July
1994 and, consequently, became competent to conduct the proceedings.
- Subsequently,
the Regional Board carried out surveying measures between July 1995
and December 1996. On the basis of the results a hearing was held on
7 February 1997. Subsequently, ownership relations, which had been in
place for many years, had to be established on order to draw the
outer boundaries of the association. As a next step the land of the
entire association had to be divided into quality sections. This
involved the taking of expert opinions and on-site inspections which
were carried out between July and September 1998. The applicants and
other parties filed comments and objections. A number of hearings
were also held. A hearing on 10 September 1999 concluded the
valuation of the land involved. As a last step partition alternatives
were established. Out of four alternatives initially presented, two
were elaborated in more detail. An expert opinion on those two was
discussed at a hearing on 14 February 2000. As a result further
expert opinions were commissioned. The applicants then submitted
detailed comments.
- On
29 September 2000 the Regional Board held a further hearing and,
having discussed the expert opinions, dismissed the applicants’
request for partition.
- On
12 March 2003 the Constitutional Court quashed the Regional Board’s
decision, finding that some of its members had not been independent
and impartial in that they had acted at the same time as
decision-makers and as experts.
- Thereupon
the Regional Board resumed proceedings and appointed new experts
whose opinions were discussed at a hearing on 24 April 2004.
Following a further on-site inspection and further hearings, it
issued a partition scheme on 18 March 2005. The applicants appealed,
complaining that the scheme provided for the imposition of easements
on their share of land. The agricultural association and some of its
member also appealed.
- On
7 December 2005 the Supreme Land Reform Board (Oberster
Agrarsenat) amended the Regional Board’s decision as
regards one particular easement, but dismissed the remainder of the
appeals. It found inter alia that the easements in respect of
the property at issue had been established by a sales contract
concluded in 1988. The valuation of the land at issue was correct and
moreover the applicants had not objected to it at the hearing before
the Regional Board.
- Subsequently
the applicants lodged a complaint with Administrative Court on 3
February 2006. On 19 July 2007 the Administrative Court dismissed the
complaint. The judgment was served on the applicants’ counsel
on 3 August 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the
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...”
- The
Government contested that argument.
A. Admissibility
1. Compliance with the six-month time-limit
- The
Government argued that the initial proceedings on the admissibility
of the applicants’ partition request were terminated by the
Administrative Court’s judgment of 20 April 1993. In respect of
these proceedings the application had not been submitted within the
six-month time-limit laid down in Article 35 § 1 of the
Convention.
- The
applicants contested the Government’s view. They contended that
the partition proceedings, although divided into two stages, had to
be considered as a whole.
- The
Court observes that in the initial proceedings the authorities have
to carry out a preliminary examination of whether or not partition is
at all possible without jeopardizing the economic aims of the
agricultural association. If this appears to be the case they admit
the request. The further partition proceedings serve to carry out a
detailed assessment of all issues involved. The initial proceedings
are a necessary precondition for the next stage of the proceedings
which concern the partition itself. The Court therefore considers
that the proceedings are closely linked to each other and have to be
considered as a whole (see, mutatis mutandis, Wiesinger
v. Austria, 30 October 1991, § 52, Series A no. 213,
relating to land consolidation proceedings, which also consist of
several stages, and are considered as a whole in respect of
complaints about their length).
- The
Court therefore dismisses the Government’s objection that the
applicants failed to comply with the six-month time-limit.
2. Compliance with the requirement to exhaust domestic
remedies
- Furthermore
the Government submitted that the applicants had failed to exhaust
domestic remedies. Firstly, they could and should have complained to
the Constitutional Court about the duration of the proceedings. In
that context the Government referred to the case-law of the
Constitutional Court, in which it had found violations of Article 6 §
1 of the Convention on account of the length of the proceedings.
Where the Constitutional Court found a violation, damages in respect
of length of proceeding could be claimed in subsequent proceedings
under the Official Liability Act.
- Secondly,
the Government argued that the applicants only once made use of the
application for transfer of jurisdiction pursuant to section 73 of
the General Administrative Proceedings Act. They did not make use of
this remedy at all during the initial proceedings on the
admissibility of their partition request and let more than one year
go by at the stage of the partition proceedings before making their
request on 11 May 1994. They did not make further use of this remedy
although the case was pending before the Regional Board for about six
years and, after its decision of 29 September 2000 had been quashed,
was again pending before the Regional Board for a lengthy period.
- The
applicants asserted that they had duly exhausted domestic remedies.
In this connection they submitted in particular that following their
request for transfer of jurisdiction the case was pending before the
Regional Board. However, according to the Constitutional Court’s
case-law the possibilities of applying for a transfer of jurisdiction
to the Supreme Land Reform Board were very limited.
- The
Court will first examine the Government’s argument that the
applicants should have complained to the Constitutional Court about
the length of the proceedings. According to the Court’s
case-law States may either introduce remedies with have a preventive
effect in respect of the duration of proceedings, or remedies with
provide compensation for past breaches of that requirement. Although
the first alternative is preferable, compensatory remedies may also
be regarded as effective for the purpose of Article 35 § 1 of
the Convention (see Scordino v. Italy (no. 1) [GC],
no. 36813/97, §§ 183-87, ECHR 2006 V).
- The
Court notes that a Constitutional Court decision to the effect that
the proceedings had lasted for an unreasonably long period has
neither preventive nor compensatory effect in respect of the length
of the proceedings, but has merely a declaratory effect. Such a
remedy cannot be considered effective under the principles elaborated
by the Court. Turning to the Government’s argument that the
declaratory decision of the Constitutional Court may subsequently
form the basis for claiming damages in official liability
proceedings, the Court notes firstly that the Government did not
provide any details, nor did they refer to any specific examples of
case-law. The Court is therefore not required to examine whether a
remedy requiring the applicant to conduct two sets of proceedings,
one to obtain a declaratory decision by the Constitutional Court and
a second to obtain damages, could possibly be regarded as an
effective one. Moreover, the Court notes that the proceedings before
the Constitutional Court itself took more than two years. The
possibility referred to by the Government can therefore not be
regarded as an effective remedy (see, VR-Bank Stuttgart eG v.
Austria, no. 28571/06, §§ 30-32, 20 May 2010).
- The
Government further argued that the applicants had failed to duly make
use of the request for transfer of jurisdiction under section 73 of
the General Administrative Procedure Act. The Court reiterates that
such a request constitutes, in principle, an effective remedy which
has to be used in respect of complaints about the length of
proceedings before administrative authorities (see Egger v.
Austria (dec.), no. 74159/01, 9 October 2003). The applicant made
use of the request for transfer of jurisdiction once. The Court has
already held in similar cases that a detailed examination as to
whether the applicants could have made more efficient use of that
remedy by using it at other stages of the proceedings, would
overstretch the duties incumbent on applicants pursuant to Article 35
§ 1 of the Convention (see, mutatis mutandis, Kern v.
Austria, no. 14206/02, § 49, 24 February 2005 and Klug v.
Austria, no. 33928/05, § 31, 15 January 2009, both
concerning land consolidation proceedings during which the applicants
had successfully made use of the request for transfer of jurisdiction
once or twice, respectively, and the Government had argued that, in
addition, they should have done so at other stages of the
proceedings). The Court sees no reason to reach another conclusion in
the present case. It therefore dismisses the Government’s
objection on non-exhaustion.
- The
Court notes that this 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
period to be taken into consideration began on 7 November 1986 when
the Agricultural Authority dismissed the applicants’ partition
request, as it was at that moment that a “dispute” arose
within the meaning of Article 6 § 1 of the Convention (see König
v. Germany, 28 June 1978, § 98, Series A no. 27 and
Morscher v. Austria, no. 54039/00, § 38, 5 February
2004) and ended on 3 August 2007 when the Administrative Court’s
judgment was served on the applicants. The proceedings therefore
lasted for twenty years and almost nine months and came before four
levels of jurisdiction.
- The
applicants argued that the present partition proceedings were less
complex as regards the number of parties and the legal issues
involved than land consolidation proceedings with which they have
certain similarities. In their view the total length was
inacceptable. They pointed out that since they were farmers the
partition proceedings were particularly important for their economic
existence.
- The
Government argued that partition proceedings were comparable to land
consolidation proceedings and were by their nature very complex. In
the present case this complexity was increased as a second member of
the agricultural association had requested partition at the same time
as the applicants and on account of the inaccessibility of the land
which made surveying and on-site inspections difficult. Due to these
circumstances the investigation proceedings lasted relatively long.
However, other stages of the proceedings were conducted expediently,
while the applicants contributed in many ways to the duration of the
proceedings.
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court, while acknowledging the complexity of proceedings such as the
present ones, has frequently found violations of Article 6 § 1
of the Convention in cases raising similar issues (see, in
particular, Walder v. Austria, no. 33915/96, § 28,
30 January 2001; Klug,
cited above, § 37, both relating to land consolidation
proceedigns which took twenty-two years and twenty years
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.
Having regard to its case-law on the subject, 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
applicants complained under Article 1 of Protocol No. 1 that the
excessive length of the proceedings and the imposition of easements
on their property violated their right to peaceful enjoyment of their
possessions. They relied on Article 1 of Protocol No. 1 which
provides 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.”
A. Admissibility
- The
Court notes that insofar as the applicants complain about the
imposition of easements on their property the Supreme Land Reform
Board in its decision of 7 December 2005 found that the easements at
issue had already been pre-existing. The Court therefore considers
that they have not been imposed in the partition proceedings and
there is thus no interference with the applicants’ property in
that respect.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- Insofar
as the applicants complain that the length of the proceedings
violated their right to the peaceful enjoyment of their possessions,
he Court notes that this complaint is linked to the one examined
above and must therefore likewise be declared admissible.
B. Merits
45. Having regard to its finding under
Article 6 § 1 (see paragraph 40 above), the Court considers that
it is not necessary to examine whether, in this case, there has been
a violation of Article 1 of Protocol No. 1 on account of the length
of the proceedings (see Zanghì v.
Italy, judgment of 19 February 1991,
Series A no. 194-C, p. 47, § 23). Moreover, the Court
recalls that the eventual negative repercussions on an applicant’s
property rights caused by the excessive length of proceedings may be
analysed as a consequence of the violation of Article 6
§ 1 of the Convention and
taken into account for the award of just satisfaction under the
latter provision (see Varipati v. Greece, no. 38459/97, §
32, 26 October 1999; Gavrielidou and Others v. Cyprus, no.
73802/01, § 54, 6 April 2006).
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
applicants claimed 324,000 euros (EUR) under the
head of pecuniary damage, arguing that they suffered loss of earnings
(from hunting and forestry) over a period of more than twenty years.
Moreover, the first applicant claimed EUR 220,000 in respect of
non-pecuniary damage, submitting that the suffered from a depression
as a result of the protracted proceedings. The second applicant
claimed EUR 5,000 under this head.
- The
Government contested these claims. They asserted that the claims for
pecuniary damage were wholly unfounded and that the applicants had
failed to furnish any proof of the alleged loss of earnings. In
respect of non-pecuniary damage the Government argued that the
finding of a violation would provide sufficient just satisfaction.
- The
Court, notes that the applicants have not substantiated their claim
regarding loss of earnings in any detail. In any case, it does not
discern any causal link between the violation found and the pecuniary
damage alleged. On the other hand, the Court considers that the
applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards the applicants
jointly EUR 18,000.
B. Costs and expenses
- The
applicants submitted that they incurred costs of
EUR 60,000 in the domestic proceedings of which they considered EUR
12,000 to be caused by the excessive length of the proceedings.
Moreover, they claimed EUR 6,741.50 each for costs and proceedings
incurred before the Court. The sums claimed include value-added tax
(VAT).
- The
Government pointed out that only the costs of the request for
transfer of jurisdiction were caused by the length of the
proceedings. However, the applicants had failed to specify these
costs. The costs claimed in respect of the proceedings before the
Court were excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In respect of the domestic proceedings the
Court notes that this condition is fulfilled only in respect of the
costs of the request for transfer of jurisdiction. As the applicants
have failed to itemize these costs, the Court cannot make an award.
The Court accepts, however, that unreasonable delays in proceedings
may involve an increase in an applicant’s costs (see Klug,
cited above, § 50; Kern,
cited above, § 70 both with reference to Bouilly
v. France, no. 38952/97, § 33, 7
December 1999). On an equitable basis, it awards the applicants
jointly EUR 1,000 under this head. In respect of the Convention
proceedings, having regard to the sums usually awarded in length of
proceedings cases and making an assessment on an equitable basis,
wards the applicants jointly EUR 2,000. In sum, the Court awards the
applicants EUR 3,000 under the head of costs and expenses.
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 complaints concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
applicants’ complaint in relation to the length of the
proceedings under Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months, EUR 18,000 (eighteen
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage and 3,000 (three thousand euros), plus any tax
that may be chargeable to the applicants, 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 4 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Peer Lorenzen
Deputy
Registrar President
