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universul juridic magazin
Revista Română de Drept Privat

Protection of the ownership title: recent developments in the case law of the European Court of Human Rights

It is beyond doubt that the property law has not occupied an important role in the initial text of the European Convention for the Protection of Human Rights, but it did so in its First Additional Protocol. Nonetheless, it may be certainly stated that currently, due to the constant evolution of the Strasbourg Court case law in the field, it holds an important place amongst human rights protected by the Convention. Starting from the quite imprecise wording of the 1st article of Protocol no. 1, according to which “Every natural or legal person is entitled to the peaceful enjoyment of his possessions”, the European jurisdiction has set that, by acknowledging such right to all persons, this text “substantially guarantees the property right, as the terms ‘possessions’, ‘property’ and ‘use of property’ clearly infer it, and the Convention preparatory works confirm it beyond doubt: the authors of the Convention have constantly mentioned the “property right” to designate the matter in the successive and laborious drafts leading to the current wording of the text that consecrates it. Or the right to enjoy one’s own possessions is a traditional and fundamental elements of the property right” (see ECHR decision of June 13, 1979, Marckx vs. Belgium, Series A, no. 31, § 63). In so far as the content of this text is concerned, the Strasbourg Court has constantly decided in its case law that article 1 of Protocol no. 1 contains three distinct norms: the first general one states the principle of the enjoyment of own possessions; the second one concerns the deprival of the property right subjected to certain conditions; the third one acknowledges the States’ authority to regulate, inter alia, the use of possessions by the holder according to the general interest, while allowing them to adopt the laws they regard as necessary to this end. Starting from these principles, the Court has finally developed an extensive case law concerning the notion of “possession” according to article 1 of Protocol no. 1, the obligations of the States to ensure “the enjoyment of his own possessions” to natural and legal persons and the terms of a possible “deprival of the property right”. In so far as the notion of “possession” is concerned, as used in this text, the Court has decided that it is an autonomous notion, including both real rights – t he property right, the right of use, the fiduciary property, the State-granted concessions–, and the personal rights, such as receivables, company shares, etc. Under certain circumstances, defined in its case law, the Court has ruled that a “sufficiently important” substantial patrimonial economic interest, such as the right to compensation established by national jurisdictions or laws, represents a form of possession for the purposes of the Convention. Similarly, contributive or non-contributive social benefits, acknowledged by the internal law of the contracting States, are also regarded as “possessions” protected hereunder, or a “legitimate expectation” following from the obligation undertaken by the State to return the assets seized by the former totalitarian regimes or to compensate the former owners of such assets. However, such expectations must have a sufficient basis in the internal law, consisting of either a legal disposition imposing conditions to be observed by the interested parties, or of the established case law of the tribunals in the relevant matter. In so far as the nature of the obligations of the States to ensure “the peaceful enjoyment of his possessions” to natural and legal persons, a negative obligation arises for national authorities to refrain from infringing this right, and sometimes even its substance. However, over the recent years, the Court considered that the assurance of the actual and concrete nature of the property right protection also imposes positive protection obligations to the States, taking into account the fair balance to be maintained between the general and the individual interest; such obligations mainly arise when there is a direct connection between the measures that a claimant could legitimately expect from authorities and the enjoyment of his possessions by the same. In so far as the circumstances for a possible deprival of the property right allowed, under certain circumstances, through the provisions in article 1 of the Protocol no. 1, the Court has often decided that such a measure should follow, both in principle, and in specific cases, a legitimate objective of public usefulness and that there must be a reasonable proportionality relation between this objective and the means employed, because the balance between the general interest exigencies and the fundamental right protection demand is broken if a person is subjected to a “disproportionate burden”. By all means, if the property right as stipulated under the Convention is infringed, this principle imposes the most adequate compensation of the interested party, apart from the exceptional case in which the latter requests the protection of a right obtained through a “windfall effect” he took advantage of (see the ECHR Decision of June 30, 2005, Jahn & Co. vs. Germany, ECHD 2005-VI, §30)