FIRST SECTION

CASE OF SEIDL AND OTHERS v. AUSTRIA

(Application no. 45322/08)

JUDGMENT

STRASBOURG

19 December 2013

This judgment is final but it may be subject to editorial revision.

In the case of Seidl and Others v. Austria,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Linos-Alexandre Sicilianos, President,
	Elisabeth Steiner,
	Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 26 November 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 45322/08) 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 three Austrian nationals, Mr Robert Seidl, Mr Walter Seidl and Mrs Maria Seidl (“the applicants”), on 11 September 2008.
2.  The applicants were represented by Mr W. Proksch, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
3.  On 12 November 2009 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1957, 1952 and 1926 respectively and live in Gerasdorf.
A.  The land consolidation proceedings
5.  In 1983 land consolidation proceedings were opened in respect of Gerasdorf, where the applicants live as farmers. The proceedings related to a total area of 1,329 hectares, including 60 hectares out of the 200 hectares of the applicants’ farming estate. The applicants and other family members used to farm their land jointly. In addition they had entered into agreements on rights of use (Nutzungstauschvereinbarungen) with other farmers, allowing them to cultivate third-party plots while waiving their rights to cultivate a number of their own plots of land. These agreements had been made orally and had not been entered into the land register.
6.  In 1986 the occupation and valuation schedule (Besitzstands- und Bewertungsausweis) was issued and on 13 November 1986 the provisional transfer of property (vorläufige Übernahme) was ordered.
7.  On 16 May 1990 the District Agricultural Authority issued the consolidation plan (Zusammenlegungsplan), against which the applicants and some other family members appealed on 5 July 1990. Thirty-seven other parties also appealed.
8.  The Regional Land Reform Board (Landesagrarsenat) granted the applicants’ appeal as well as the appeals of thirty-four other parties in a decision of 28 April 1992 and referred the case back to the lower instance.
9.  In January 1993 the applicants filed an application for transfer of jurisdiction (Devolutionsantrag). As a result, the Regional Land Reform Board became competent to deal with the matter. The applicants’ further application for transfer of jurisdiction to the Supreme Land Reform Board was dismissed by the latter on 7 December 1994 on the ground that there had not been an undue delay in the proceedings before the Regional Land Reform Board. Consequently, the proceedings remained pending before the Regional Land Reform Board.
10.  On 19 June 1995 the Regional Land Reform Board having held a hearing issued a new consolidation plan, amending the allocation of compensatory parcels to the applicants and a number of other parties. The applicants appealed.
11.  In a decision of 6 December 1995 the Supreme Land Reform Board decided to suspend the appeal proceedings pending further amendments of the consolidation plan concerning other parties. The applicants filed a complaint against that decision with the Constitutional Court. On 13 March 1996 the Constitutional Court refused to deal with the complaint and transferred the case to the Administrative Court where it became pending on 7 May 1996. On 7 November 1996 the Supreme Land Reform Board submitted observations.
12.  On 26 May 1998 the Administrative Court (Verwaltungsgerichtshof) quashed the decision of 6 December 1995 and ordered the Supreme Land Reform Board to continue the proceedings.
13.  Subsequently between 27 October 1998 and 2 June 1999 the Supreme Land Reform Board conducted comprehensive proceedings. It carried out on-site visits, took expert opinions and held a number of hearings. It appears that in the course of a hearing held in April 1999 two judges declared to withdraw from the case as they were also sitting in related proceedings concerning the applicants’ claim under the Official Liability Act.
14.  By decisions of 2 June and 12 October 1999 the Supreme Land Reform Board, after having held hearings in its new composition, again amended the consolidation plan in respect of the applicants and a number of other parties.
15.  The applicants’ complaint against the Supreme Land Reform Board’s decision of 2 June 1999 was dismissed by the Constitutional Court for lack of prospects of success on 27 September 1999 and the case was transferred to the Administrative Court. After the applicants had amended their complaint, the Supreme Land Reform Board submitted the files on 16 May 2000 and observations on 21 July 2000.
16.  The applicants’ complaint against the Supreme Land Reform Board’s decision of 12 October 1999 was dismissed by the Constitutional Court for lack of prospects of success on 13 June 2000 and the case was transferred to the Administrative Court. After the applicants had amended their complaint, the Supreme Land Reform Board submitted observations on 13 March 2001.
17.  In the meantime, the appeal of a third party against the Supreme Land Reform Board’s decisions, led to an amendment of the consolidation plan concerning the first and third applicants by the Regional Land Reform Board’s decision of 4 July 2000. Their appeal was dismissed by the Supreme Land Reform Board on 6 June 2001.
18.  The first and third applicant’s complaint against the Supreme Land Reform Board’s decision of 6 June 2001 was dismissed by the Constitutional Court on 25 June 2003 and the case was transferred to the Administrative Court. The Supreme Land Reform Board submitted observations on 1 October 2003.
19.  In judgments of 3 July 2003, 11 September 2003 and 20 January 2005 the Administrative Court set aside the Supreme Land Reform Board’s decisions of 2 June and 12 October 1999 and of 6 June 2001 for various procedural defects. However, it dismissed the applicants’ argument that the agreements on rights of use concluded by them prior to the opening of the land consolidation proceedings should have been taken into account in the occupation and valuation schedule. In that respect the Administrative Court found that neither section 10 nor any other provision of the Lower Austria Agricultural Act (Flurverfassungs-Landesgesetz) supported the applicants’ position. Consequently, the case was again pending before the Supreme Land Reform Board.
20.  Following hearings on 4 April 2005 and 22 June 2005 the Supreme Land Reform Board issued a new decision on the latter date, again amending the consolidation plan and modifying the land compensation granted to the applicants.
21.  On 28 November 2005 the Constitutional Court refused to deal with the applicants’ complaint for lack of prospects of success and transferred the case to the Administrative Court. The Supreme Land Reform Board submitted its observations on 9 May 2006. In January 2008 the Administrative Court requested it to submit further documents.
22.  On 21 February 2008 the Administrative Court dismissed the applicants’ complaints as being unfounded. It confirmed the legal view that the agreements on the use of parcels concluded by the applicants were not to be taken into account in the occupation and valuation schedule. Furthermore, the Administrative Court held that the proceedings had corrected the procedural defects criticised by its earlier decision. Lastly, the compensatory parcels awarded to the applicants complied with the requirements of the Lower Austria Agricultural Act.
23.  The judgment was served on the applicants’ counsel on 11 March 2008.
B.  Other sets of proceedings
24.  In 1990 the applicants brought official liability proceedings for loss of earnings as a result of the delays in the land consolidation proceedings and allocation of land of minor quality. Following a first set of proceedings, the Supreme Court, by its judgment of 9 June 1998, remitted the case to the Vienna Regional Civil Court. The proceedings before that court were stayed in June 2000 at the applicants’ request in order to await the outcome of the land consolidation proceedings. They were resumed in June 2008. On 30 December 2009 the Vienna Regional Civil Court dismissed the applicants’ claim. The applicants appealed. The outcome of the proceedings is not known.
25.  At an unknown date, the applicants brought compensation proceedings under section 26a of the Lower Austria Agricultural Act. On 17 February 2009 the Regional Land Reform Board rejected the applicants’ compensation claim. On 29 June 2010 the Supreme Land Reform Board dismissed their appeal.
II.  RELEVANT DOMESTIC LAW
26.  Pursuant to section 1 of the Official Liability Act (Amtshaftungsgesetz), the Federation, the Länder, districts, municipalities, other bodies of public law and the institutions of social insurance are liable pursuant to the relevant civil law for any damage to a person or a person’s property caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law.
27.  Section 26a of the Lower Austria Agricultural Act, in so far as relevant, provides at follows:
“(1)  A party is entitled to be compensated for a damage that it suffers from the cultivation of an unlawful land compensation, irrespective of whether there has been a provisional [..] or a final [..] land transfer.
(2)  Transferred land compensation is unlawful if it fails to fulfill the requirements listed in section 17(5) and (6).
(3)  An application for damages must be filed with the Regional Land Reform Board within one month after the consolidation plan has entered into force which assigns a further land compensation, with the claim being forfeited otherwise. ...
(4)  The amount of the damage must be determined as the difference between the operating profit from all plots of land included in the procedure and the operating profit from the provisionally and finally transferred land compensation. In this context, the operating profit that can objectively be obtained with a proper, customary and sustainable cultivation shall be taken as a basis. Amounts which the applicant party has already been awarded or paid for this damage shall be deducted from the amount of damage that is thus calculated.
(5)  The damages shall be paid by the legal entity which pays the expenses of the agricultural authority that has caused the damage. The legal entity shall be a party in such proceedings.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
28.  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...”
29.  The Government contested that argument.
A.  Admissibility
1.  Compliance with the six-month time-limit
30.  The Government submitted that it was not clear from the documents available to them whether the application had been submitted within the six-month time-limit provided for in Article 35 § 1 of the Convention. The applicants did not comment.
31.  The Court observes that according to the postmark on the envelope the application was sent on 11 September 2008. The final decision in the proceedings complained of was served on the applicant’s counsel on 11 March 2008. It follows that the application has been introduced within the six-month time-limit.
2.  Exhaustion of domestic remedies
32.  The Government asserted that the applicants had only made limited use of the possibility of filing applications for the transfer of jurisdiction pursuant to section 73 of the General Administrative Procedure Act. Moreover, they did not lodge a complaint with the Constitutional Court or with the Administrative Court against the Supreme Land Reform Board’s decision of 7 December 1994 dismissing their request for transfer of jurisdiction.
33.  In addition the Government argued that the applicants could have raised the issue of a violation of Article 6 § 1 of the Convention due to excessive length of proceedings in the compensation proceedings under section 26a of the Lower Austria Agricultural Act or in the official liability proceedings.
34.  The Court has already found that a detailed examination as to whether applicants could have made more efficient use of the request for transfer of jurisdiction pursuant to section 73 of the General Administrative Procedure Act, which is in principle an effective remedy, would overstretch the duties incumbent on an applicant pursuant to Article 35 § 1 of the Convention (see Kern v. Austria, no. 14206/02, § 49, 24 February 2005; Klug v. Austria, no. 33928/05, § 31, 15 January 2009). In the present case the applicants have made use of this remedy twice. As to the Government’s argument that the applicants had failed to complain to the Constitutional Court or to the Administrative Court against the decision refusing their second request for transfer of jurisdiction, the Court notes that the Government have not shown that a complaint to either of these courts would have contributed to accelerating the proceedings.
35.  Turning to the Government’s second argument, the Court notes that section 26a of the Lower Austria Agricultural Act provides for compensation for pecuniary losses resulting from unlawful allocation of land. There is no indication that it could serve as a basis for providing redress for non-pecuniary damage resulting from the excessive length of the proceedings (see, mutatis mutandis, Klug, cited above, § 29). Furthermore, the Court notes that the Official Liability Act allows claiming compensation for damage resulting from an unlawful act attributable to an authority. However, the Government have not substantiated their submissions or submitted any decisions in comparable cases in order to show that a claim under the Official Liability Act could afford full redress for pecuniary and non-pecuniary damage resulting from the unreasonable length of proceedings.
36.  In conclusion, the Court is satisfied that the applicants have complied with their obligation to exhaust domestic remedies. It therefore dismisses the Government’s objection.
3.  Conclusion
37.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
38.  The Government asserted that 7 December 1994, the date when the Supreme Land Reform Board dismissed the applicants’ request for transfer of jurisdiction, should be taken as the starting point of the proceedings. They ended on 11 March 2008, when the judgment of the Administrative Court was served.
39.  In accordance with its case-law in similar cases, the Court finds that the date when a “dispute” arose is to be taken as the starting point of the proceedings at issue (see Klug, cited above, § 33 with further references). Consequently, the period to be taken into consideration began on 5 July 1990, when the applicants appealed against the consolidation plan and ended on ended on 11 March 2008, when the Administrative Court’s judgment was served on the applicants’ counsel. It has thus lasted seventeen years and eight months and came before four levels of jurisdiction.
40.  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).
41.  The Government asserted in particular that land consolidation proceedings are complex by their very nature. They argued that the proceedings at issue in the present case were of an even higher complexity due to the large number of parties involved, the fact that the administrative file was extremely voluminous and the fact that judgments from the official liability proceedings conducted by the applicants had to be taken into account. The Government argued that, having regard to all these factors, the authorities including the Administrative Court decided with reasonable speed.
42.  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 for instance, Prischl v. Austria, no. 2881/04, §§ 32-33, 26 April 2007; Kolb and Others v. Austria, nos. 35021/97 and 45774/99, § 56, 17 April 2003; and Wiesinger v. Austria, 30 October 1991, § 64, Series A no. 213).
43.  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, for instance Klug, cited above, § 37; Wiesinger, cited above, § 55), the Court considers that the overall duration of the proceedings was nevertheless excessive. It observes in particular that in one phase of the proceedings (see paragraphs 15 to 19 above), namely after the Supreme Land Reform Board had given its decisions of 2 June and 12 October 1999 and 6 June 2001, there were three sets of proceedings concerning the applicants’ complaints pending before the Administrative Court. The delays between the submission of observations by the Supreme Land Reform Board and the issuing of the Administrative Court’s decisions in these proceedings varied between one year and three months and a little less than three years and it was only in January 2005 that all decisions had been quashed by the Administrative Court and the proceedings were referred back to the Supreme Land Reform Board, which then had to amend the land consolidation plan anew. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement.
44.  There has accordingly been a breach of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
45.  The applicants further complained that they did not have an effective remedy in respect of the excessive length of proceedings. They relied on Article 13 of the Convention which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
46.  The Government maintained the argument submitted in respect of exhaustion of domestic remedies. They concluded that the applicants had effective remedies at their disposal as they were in a position to claim compensation for any pecuniary damage they might have suffered as a result of the length of the proceedings either under the Official Liability Act or under section 26a of the Lower Austria Agricultural Act.
47.  In addition the Government referred to the comprehensive reform of administrative proceedings which was currently underway: the creation of first instance administrative courts aimed inter alia at reducing the work-load of the Administrative Court. A first step had aleady been made with the creation of an Asylum Court in 2008 and the removal of asylum cases from the Administrative Court’s jurisdiction. This had resulted in a drop of complaints lodged with the Administrative Court allowing it to reduce its backlog of cases. Moreover, five additional posts of judges had been allocated to the Administrative Court.
48.  The Court reiterates that the correct interpretation of Article 13 of the Convention is that this provision guarantees an effective remedy before a national authority for an alleged violation of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). Moreover, the Court reiterates that Article 13 offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudla, cited above, § 159; see also Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 186-87, ECHR 2006-V).
49.  The Court refers to its considerations set out above regarding the exhaustion of domestic remedies. It notes that the applicants had an effective remedy, namely the request for transfer of jurisdiction pursuant to section 73 of the General Administrative Procedure Act to expedite the proceedings before the lower authroties. However, considerable delays occurred in the proceedings before the Administrative Court. While the Court notes with satisfaction the various steps taken by the Government in order to reduce the duration of proceedings before the Administrative Court, the fact remains that at the material time, the applicants did not have any remedy – either preventive or compensatory – as regards the delays in the proceedings before that court (see, for instance, Hauser-Sporn v. Austria, no. 37301/03, § 40, 7 December 2006; Stempfer v. Austria, no. 18294/03, § 48, 26 July 2007; Vitzthum v. Austria, no. 8140/04, § 31, 26 July 2007; and Schutte v. Austria, no. 18015/03, § 38, 26 July 2007).
50.  Consequently, there has been a violation of Article 13 of the Convention.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
51.  Furthermore, the applicants complained under Article 6 § 1 of the Convention that the Supreme Land Reform Board was not independent and impartial on account of the participation of expert members. Moreover, the proceedings were unfair in that the Administrative Court in its final judgment of 21 February 2008 accepted the lawfulness of the compensation awarded to the applicants although the proceedings continued to suffer from procedural defects. Finally, the applicants complained under Article 1 of Protocol No. 1 that the authorities wrongly applied the provisions of the Lower Austria Agricultural Act in particular in that they disregarded the agreements on rights of use concluded by the applicants when allocating compensatory parcels to them. In any event, the authorities had failed to compensate the applicants with plots of equal value as required under the said Act.
52.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
53.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
54.  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
55.  The applicants claimed 2 million euros (EUR) in respect of pecuniary damage. In particular they asserted that they had suffered considerable loss of earnings. The applicants did not make a claim in respect of non-pecuniary damage.
56.  The Government contested the claim, arguing that there was no causal link between the damage claimed and the violations complained of. They noted in particular that the applicants claimed to have suffered loss of earnings as a result of allocation of plots of land of minor quality. However, the lawfulness of the substantive decisions in the land consolidation proceedings was not at stake before the Court.
57.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged. Consequently, it makes no award under this head. As the applicants have not claimed compensation for non-pecuniary damages, the Court makes no award under that head either.
B.  Costs and expenses
58.  The applicants also claimed a total amount of EUR 289,066.59 including value-added tax (VAT) under the head of costs and expenses, composed of EUR 273,574.09 incurred in the domestic proceedings including the official liability proceedings and EUR 15,492.50 incurred in the proceedings before the Court.
59.  The Government asserted that most of the costs claimed in respect of the domestic proceedings related to the proceedings under the Official Liability Act, which were not the subject of the present application. None of the costs listed in respect of the land consolidation proceedings, except an amount of EUR 654.95 were incurred in order to prevent or redress the violation complained of. Finally, they submitted that the costs claimed in respect of the Convention proceedings were excessive.
60.  Regard being had to the documents in its possession and to its case-law, the Court awards EUR 654.95 for costs incurred in the domestic proceedings. Furthermore, it considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court. Consequently, it awards a total amount of EUR 2,654.95 under the head of costs and expenses.
C.  Default interest
61.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaints concerning the excessive length of the proceedings and the lack of an effective remedy in that respect admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicants, within three months, EUR 2,654.95 (two thousand six hundred fifty-four euros and ninety-five cents), 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 19 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Linos-Alexandre Sicilianos
	Deputy Registrar	President