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The right to property – Introduction

Content:

 

Text

 

I)                 Introduction/Overview

1)      Relevance

2)      Drafting history

3)      Structure

II)               Property

                       1)     Overview

                       2)     Pension entitlements 

                       3)     Deposits in bank accounts

 

Text:

Protection of property

(1) 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.

(2) 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.

 

  1. Introduction/Overview

  1. Relevance

The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is among the most frequently violated Convention rights, third only to the right to speedy trial and the right to fair trial. As of 1 January 2010, 14.58% of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the right to property; 26. 37 percent regarded the length of proceedings under article 6 and 21.10 % the right to a fair trial under article 6

 

  1. Drafting history

The right to property is not embodied in the Convention, but was added in the First Protocol to the Convention, which was opened for signature in 1952 and entered into force in 1954.

In the process of drafting the Convention the inclusion of the right to property had been the subject of much debate. The ECHR was initially conceived as an early warning mechanism against totalitarian tendencies in Europe. In the states which comprised the Council of Europe at the time when the Convention was drawn up, democratic institutions were well-developed and stable, yet Hitler’s rise to power had shown how democracy and freedom could be abolished in incremental steps. The member states sought to ensure that the beginning of similar developments would not go unnoticed in future. A catalogue of fundamental democratic rights and an international supervisory mechanism would function as a detector of totalitarian tendencies in any of the member states, alerting the other states and enabling them to react in a timely fashion. Accordingly, the Convention should enshrine fundamental democratic rights. The authors who developed a draft of the Convention on behalf of the Consultative Assembly (now: Parliamentary Assembly) of the Council of Europe considered that the right to property counted among those rights, because of its importance for personal liberty

But after the draft had been submitted to the Committee of Ministers, the Committee created its own group of experts. The right to property was removed from the catalogue of rights to be secured by the member states, partly due to concerns by the then socialist British government that it might impede the government’s agenda of socializing property and strengthen obligations entailed by ownership. Shortly after, the Convention was opened for signature without further discussion of the issue with the Consultative Assembly.

The failure to include the right to property in the Convention caused massive protests by the Parliamentary Assembly. As a reaction to this, talks about enshrining the protection of property resumed. The Committee of Ministers commissioned a group of experts to draft a Protocol to the European Convention on Human Rights, which would provide for the protection of property (and for other rights, notably the right to vote). The result was Protocol 1 to the ECHR, which entered into force in 1954 (this short account of the drafting process follows the one presented by Ed Bates in ‘The Evolution of the European Convention on Human Rights’; for the sake of readability I have not used references in each paragraph or sentence)

 

  1. Structure

The European Court of Human Rights has held that article 1 of protocol 1 contains three rules:

  • The first one establishes the protection of property. It is contained in the first sentence of article 1 of protocol 1 ECHR (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’)

 

  • The second rule concerns the deprivation of property. It sets out requirements and general principles for expropriations and is laid down in the second sentence of article 1 of protocol 1 (‘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 third rule deals with the control of use of property. It clarifies that obligations, such as tax duties, may be tied to property in the interest of the public. This rule is contained in the second paragraph of article 1 of protocol 1 (‘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.’)

 

While it is longstanding jurisdiction of the Court that article 1 of protocol 1 contains three rules, the Court has reiterated at the same time that these three rules should not be viewed as isolated but rather as forming one concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without limits. On the other hand, when it comes to restricting the right to property it needs to be borne in mind that property is in principle protected under article 1 of protocol 1 and rule 2 and three have to be construed in light of this principle (Beyeler v Italy)

The approach taken by the European Court of Human Rights when examining cases concerning the right to property is not always the same: After clarifying that article 1 of protocol 1 is applicable, the Court sometimes establishes whether the measure in question constitutes a deprivation of property or rather falls in the ambit of control of use (see for example Suljagic v Bosnia and Herzegovina). In other cases, the Court does not draw this distinction but simply states that it will scrutinize the measure in light of article 1 of protocol 1 and the principles that govern the right to property (Beyeler v Italy, para 106; Broniowski v Poland, (Grand Chamber) para 136)

The ECtHR has established three main principles applying to the protection of property:

 

Principle of lawfulness

The Court has reiterated that it is the most important requirement of article 1 of protocol 1 that any interference by a public authority with the right to peaceful enjoyment of possessions should be lawful (Saliba v Malta, para 37). The principle of lawfulness requires that each infringement upon the right to property have a basis in domestic law. This legal basis has to be accessible, sufficiently precise and foreseeable. It also requires that the law making provision for the interference with the peaceful en and in accordance with the rule of law as a general concept inherent in all articles of the Convention. The fundamental principle of the rule of law requires inter alia that the state is obliged to comply with judicial orders against it (Herrmann v Germany)

 

Principle of a legitimate aim

The interference with the right to property has to pursue a legitimate aim: According to the second sentence of article 1 of protocol 1 deprivations of property are only allowed if they are in the public interest and the second paragraph provides that the control of use of property has to be in accordance with the general interest. The Court reads these provisions together as establishing one principle that interferences with the right to property have to serve a legitimate aim. It has also inferred the principle of a legitimate aim from article 18 ECHR, which provides that limitations on rights foreseen in the Convention may only be used to the ends for which they are prescribed (Beyeler v Italy, para 111).

In contrast to articles 8 – 11 ECHR, article 1 of protocol 1 does not contain a catalogue of objectives which may justify interferences. The Court ascertains on a case by case basis whether the interference with the right to property pursues a legitimate aim. Member states enjoy a wide margin of appreciation when deciding which aim is legitimate.

 

Principle of a fair balance

The principle of a fair balance requires that the interests of the individual affected by measure interfering with the right to property have to be pondered with the interests of the general public. The interference must not impose an excessive or disproportionate burden on the individual (Valkov v Bulgaria)

Content:

 

Text

 

I)                 Introduction/Overview

1)      Relevance

2)      Drafting history

3)      Structure

II)               Property

                       1)     Overview

                       2)     Pension entitlements 

                       3)     Deposits in bank accounts

 

Text:

Protection of property

(1) 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.

(2) 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.

 

  1. Introduction/Overview

  1. Relevance

The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is among the most frequently violated Convention rights, third only to the right to speedy trial and the right to fair trial. As of 1 January 2010, 14.58% of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the right to property; 26. 37 percent regarded the length of proceedings under article 6 and 21.10 % the right to a fair trial under article 6

 

  1. Drafting history

The right to property is not embodied in the Convention, but was added in the First Protocol to the Convention, which was opened for signature in 1952 and entered into force in 1954.

In the process of drafting the Convention the inclusion of the right to property had been the subject of much debate. The ECHR was initially conceived as an early warning mechanism against totalitarian tendencies in Europe. In the states which comprised the Council of Europe at the time when the Convention was drawn up, democratic institutions were well-developed and stable, yet Hitler’s rise to power had shown how democracy and freedom could be abolished in incremental steps. The member states sought to ensure that the beginning of similar developments would not go unnoticed in future. A catalogue of fundamental democratic rights and an international supervisory mechanism would function as a detector of totalitarian tendencies in any of the member states, alerting the other states and enabling them to react in a timely fashion. Accordingly, the Convention should enshrine fundamental democratic rights. The authors who developed a draft of the Convention on behalf of the Consultative Assembly (now: Parliamentary Assembly) of the Council of Europe considered that the right to property counted among those rights, because of its importance for personal liberty

But after the draft had been submitted to the Committee of Ministers, the Committee created its own group of experts. The right to property was removed from the catalogue of rights to be secured by the member states, partly due to concerns by the then socialist British government that it might impede the government’s agenda of socializing property and strengthen obligations entailed by ownership. Shortly after, the Convention was opened for signature without further discussion of the issue with the Consultative Assembly.

The failure to include the right to property in the Convention caused massive protests by the Parliamentary Assembly. As a reaction to this, talks about enshrining the protection of property resumed. The Committee of Ministers commissioned a group of experts to draft a Protocol to the European Convention on Human Rights, which would provide for the protection of property (and for other rights, notably the right to vote). The result was Protocol 1 to the ECHR, which entered into force in 1954 (this short account of the drafting process follows the one presented by Ed Bates in ‘The Evolution of the European Convention on Human Rights’; for the sake of readability I have not used references in each paragraph or sentence)

 

  1. Structure

The European Court of Human Rights has held that article 1 of protocol 1 contains three rules:

  • The first one establishes the protection of property. It is contained in the first sentence of article 1 of protocol 1 ECHR (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’)

 

  • The second rule concerns the deprivation of property. It sets out requirements and general principles for expropriations and is laid down in the second sentence of article 1 of protocol 1 (‘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 third rule deals with the control of use of property. It clarifies that obligations, such as tax duties, may be tied to property in the interest of the public. This rule is contained in the second paragraph of article 1 of protocol 1 (‘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.’)

 

While it is longstanding jurisdiction of the Court that article 1 of protocol 1 contains three rules, the Court has reiterated at the same time that these three rules should not be viewed as isolated but rather as forming one concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without limits. On the other hand, when it comes to restricting the right to property it needs to be borne in mind that property is in principle protected under article 1 of protocol 1 and rule 2 and three have to be construed in light of this principle (Beyeler v Italy)

The approach taken by the European Court of Human Rights when examining cases concerning the right to property is not always the same: After clarifying that article 1 of protocol 1 is applicable, the Court sometimes establishes whether the measure in question constitutes a deprivation of property or rather falls in the ambit of control of use (see for example Suljagic v Bosnia and Herzegovina). In other cases, the Court does not draw this distinction but simply states that it will scrutinize the measure in light of article 1 of protocol 1 and the principles that govern the right to property (Beyeler v Italy, para 106; Broniowski v Poland, (Grand Chamber) para 136)

The ECtHR has established three main principles applying to the protection of property:

 

Principle of lawfulness

The Court has reiterated that it is the most important requirement of article 1 of protocol 1 that any interference by a public authority with the right to peaceful enjoyment of possessions should be lawful (Saliba v Malta, para 37). The principle of lawfulness requires that each infringement upon the right to property have a basis in domestic law. This legal basis has to be accessible, sufficiently precise and foreseeable. It also requires that the law making provision for the interference with the peaceful en and in accordance with the rule of law as a general concept inherent in all articles of the Convention. The fundamental principle of the rule of law requires inter alia that the state is obliged to comply with judicial orders against it (Herrmann v Germany)

 

Principle of a legitimate aim

The interference with the right to property has to pursue a legitimate aim: According to the second sentence of article 1 of protocol 1 deprivations of property are only allowed if they are in the public interest and the second paragraph provides that the control of use of property has to be in accordance with the general interest. The Court reads these provisions together as establishing one principle that interferences with the right to property have to serve a legitimate aim. It has also inferred the principle of a legitimate aim from article 18 ECHR, which provides that limitations on rights foreseen in the Convention may only be used to the ends for which they are prescribed (Beyeler v Italy, para 111).

In contrast to articles 8 – 11 ECHR, article 1 of protocol 1 does not contain a catalogue of objectives which may justify interferences. The Court ascertains on a case by case basis whether the interference with the right to property pursues a legitimate aim. Member states enjoy a wide margin of appreciation when deciding which aim is legitimate.

 

Principle of a fair balance

The principle of a fair balance requires that the interests of the individual affected by measure interfering with the right to property have to be pondered with the interests of the general public. The interference must not impose an excessive or disproportionate burden on the individual (Valkov v Bulgaria)

Content:

 

Text

 

I)                 Introduction/Overview

1)      Relevance

2)      Drafting history

3)      Structure

II)               Property

                       1)     Overview

                       2)     Pension entitlements 

                       3)     Deposits in bank accounts

 

Text:

Protection of property

(1) 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.

(2) 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.

 

  1. Introduction/Overview

  1. Relevance

The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is among the most frequently violated Convention rights, third only to the right to speedy trial and the right to fair trial. As of 1 January 2010, 14.58% of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the right to property; 26. 37 percent regarded the length of proceedings under article 6 and 21.10 % the right to a fair trial under article 6

 

  1. Drafting history

The right to property is not embodied in the Convention, but was added in the First Protocol to the Convention, which was opened for signature in 1952 and entered into force in 1954.

In the process of drafting the Convention the inclusion of the right to property had been the subject of much debate. The ECHR was initially conceived as an early warning mechanism against totalitarian tendencies in Europe. In the states which comprised the Council of Europe at the time when the Convention was drawn up, democratic institutions were well-developed and stable, yet Hitler’s rise to power had shown how democracy and freedom could be abolished in incremental steps. The member states sought to ensure that the beginning of similar developments would not go unnoticed in future. A catalogue of fundamental democratic rights and an international supervisory mechanism would function as a detector of totalitarian tendencies in any of the member states, alerting the other states and enabling them to react in a timely fashion. Accordingly, the Convention should enshrine fundamental democratic rights. The authors who developed a draft of the Convention on behalf of the Consultative Assembly (now: Parliamentary Assembly) of the Council of Europe considered that the right to property counted among those rights, because of its importance for personal liberty

But after the draft had been submitted to the Committee of Ministers, the Committee created its own group of experts. The right to property was removed from the catalogue of rights to be secured by the member states, partly due to concerns by the then socialist British government that it might impede the government’s agenda of socializing property and strengthen obligations entailed by ownership. Shortly after, the Convention was opened for signature without further discussion of the issue with the Consultative Assembly.

The failure to include the right to property in the Convention caused massive protests by the Parliamentary Assembly. As a reaction to this, talks about enshrining the protection of property resumed. The Committee of Ministers commissioned a group of experts to draft a Protocol to the European Convention on Human Rights, which would provide for the protection of property (and for other rights, notably the right to vote). The result was Protocol 1 to the ECHR, which entered into force in 1954 (this short account of the drafting process follows the one presented by Ed Bates in ‘The Evolution of the European Convention on Human Rights’; for the sake of readability I have not used references in each paragraph or sentence)

 

  1. Structure

The European Court of Human Rights has held that article 1 of protocol 1 contains three rules:

  • The first one establishes the protection of property. It is contained in the first sentence of article 1 of protocol 1 ECHR (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’)

 

  • The second rule concerns the deprivation of property. It sets out requirements and general principles for expropriations and is laid down in the second sentence of article 1 of protocol 1 (‘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 third rule deals with the control of use of property. It clarifies that obligations, such as tax duties, may be tied to property in the interest of the public. This rule is contained in the second paragraph of article 1 of protocol 1 (‘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.’)

 

While it is longstanding jurisdiction of the Court that article 1 of protocol 1 contains three rules, the Court has reiterated at the same time that these three rules should not be viewed as isolated but rather as forming one concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without limits. On the other hand, when it comes to restricting the right to property it needs to be borne in mind that property is in principle protected under article 1 of protocol 1 and rule 2 and three have to be construed in light of this principle (Beyeler v Italy)

The approach taken by the European Court of Human Rights when examining cases concerning the right to property is not always the same: After clarifying that article 1 of protocol 1 is applicable, the Court sometimes establishes whether the measure in question constitutes a deprivation of property or rather falls in the ambit of control of use (see for example Suljagic v Bosnia and Herzegovina). In other cases, the Court does not draw this distinction but simply states that it will scrutinize the measure in light of article 1 of protocol 1 and the principles that govern the right to property (Beyeler v Italy, para 106; Broniowski v Poland, (Grand Chamber) para 136)

The ECtHR has established three main principles applying to the protection of property:

 

Principle of lawfulness

The Court has reiterated that it is the most important requirement of article 1 of protocol 1 that any interference by a public authority with the right to peaceful enjoyment of possessions should be lawful (Saliba v Malta, para 37). The principle of lawfulness requires that each infringement upon the right to property have a basis in domestic law. This legal basis has to be accessible, sufficiently precise and foreseeable. It also requires that the law making provision for the interference with the peaceful en and in accordance with the rule of law as a general concept inherent in all articles of the Convention. The fundamental principle of the rule of law requires inter alia that the state is obliged to comply with judicial orders against it (Herrmann v Germany)

 

Principle of a legitimate aim

The interference with the right to property has to pursue a legitimate aim: According to the second sentence of article 1 of protocol 1 deprivations of property are only allowed if they are in the public interest and the second paragraph provides that the control of use of property has to be in accordance with the general interest. The Court reads these provisions together as establishing one principle that interferences with the right to property have to serve a legitimate aim. It has also inferred the principle of a legitimate aim from article 18 ECHR, which provides that limitations on rights foreseen in the Convention may only be used to the ends for which they are prescribed (Beyeler v Italy, para 111).

In contrast to articles 8 – 11 ECHR, article 1 of protocol 1 does not contain a catalogue of objectives which may justify interferences. The Court ascertains on a case by case basis whether the interference with the right to property pursues a legitimate aim. Member states enjoy a wide margin of appreciation when deciding which aim is legitimate.

 

Principle of a fair balance

The principle of a fair balance requires that the interests of the individual affected by measure interfering with the right to property have to be pondered with the interests of the general public. The interference must not impose an excessive or disproportionate burden on the individual (Valkov v Bulgaria)

Content:

 

Text

 

I)                 Introduction/Overview

1)      Relevance

2)      Drafting history

3)      Structure

II)               Property

                       1)     Overview

                       2)     Pension entitlements 

                       3)     Deposits in bank accounts

 

Text:

Protection of property

(1) 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.

(2) 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.

 

  1. Introduction/Overview

  1. Relevance

The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is among the most frequently violated Convention rights, third only to the right to speedy trial and the right to fair trial. As of 1 January 2010, 14.58% of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the right to property; 26. 37 percent regarded the length of proceedings under article 6 and 21.10 % the right to a fair trial under article 6

 

  1. Drafting history

The right to property is not embodied in the Convention, but was added in the First Protocol to the Convention, which was opened for signature in 1952 and entered into force in 1954.

In the process of drafting the Convention the inclusion of the right to property had been the subject of much debate. The ECHR was initially conceived as an early warning mechanism against totalitarian tendencies in Europe. In the states which comprised the Council of Europe at the time when the Convention was drawn up, democratic institutions were well-developed and stable, yet Hitler’s rise to power had shown how democracy and freedom could be abolished in incremental steps. The member states sought to ensure that the beginning of similar developments would not go unnoticed in future. A catalogue of fundamental democratic rights and an international supervisory mechanism would function as a detector of totalitarian tendencies in any of the member states, alerting the other states and enabling them to react in a timely fashion. Accordingly, the Convention should enshrine fundamental democratic rights. The authors who developed a draft of the Convention on behalf of the Consultative Assembly (now: Parliamentary Assembly) of the Council of Europe considered that the right to property counted among those rights, because of its importance for personal liberty

But after the draft had been submitted to the Committee of Ministers, the Committee created its own group of experts. The right to property was removed from the catalogue of rights to be secured by the member states, partly due to concerns by the then socialist British government that it might impede the government’s agenda of socializing property and strengthen obligations entailed by ownership. Shortly after, the Convention was opened for signature without further discussion of the issue with the Consultative Assembly.

The failure to include the right to property in the Convention caused massive protests by the Parliamentary Assembly. As a reaction to this, talks about enshrining the protection of property resumed. The Committee of Ministers commissioned a group of experts to draft a Protocol to the European Convention on Human Rights, which would provide for the protection of property (and for other rights, notably the right to vote). The result was Protocol 1 to the ECHR, which entered into force in 1954 (this short account of the drafting process follows the one presented by Ed Bates in ‘The Evolution of the European Convention on Human Rights’; for the sake of readability I have not used references in each paragraph or sentence)

 

  1. Structure

The European Court of Human Rights has held that article 1 of protocol 1 contains three rules:

  • The first one establishes the protection of property. It is contained in the first sentence of article 1 of protocol 1 ECHR (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’)

 

  • The second rule concerns the deprivation of property. It sets out requirements and general principles for expropriations and is laid down in the second sentence of article 1 of protocol 1 (‘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 third rule deals with the control of use of property. It clarifies that obligations, such as tax duties, may be tied to property in the interest of the public. This rule is contained in the second paragraph of article 1 of protocol 1 (‘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.’)

 

While it is longstanding jurisdiction of the Court that article 1 of protocol 1 contains three rules, the Court has reiterated at the same time that these three rules should not be viewed as isolated but rather as forming one concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without limits. On the other hand, when it comes to restricting the right to property it needs to be borne in mind that property is in principle protected under article 1 of protocol 1 and rule 2 and three have to be construed in light of this principle (Beyeler v Italy)

The approach taken by the European Court of Human Rights when examining cases concerning the right to property is not always the same: After clarifying that article 1 of protocol 1 is applicable, the Court sometimes establishes whether the measure in question constitutes a deprivation of property or rather falls in the ambit of control of use (see for example Suljagic v Bosnia and Herzegovina). In other cases, the Court does not draw this distinction but simply states that it will scrutinize the measure in light of article 1 of protocol 1 and the principles that govern the right to property (Beyeler v Italy, para 106; Broniowski v Poland, (Grand Chamber) para 136)

The ECtHR has established three main principles applying to the protection of property:

 

Principle of lawfulness

The Court has reiterated that it is the most important requirement of article 1 of protocol 1 that any interference by a public authority with the right to peaceful enjoyment of possessions should be lawful (Saliba v Malta, para 37). The principle of lawfulness requires that each infringement upon the right to property have a basis in domestic law. This legal basis has to be accessible, sufficiently precise and foreseeable. It also requires that the law making provision for the interference with the peaceful en and in accordance with the rule of law as a general concept inherent in all articles of the Convention. The fundamental principle of the rule of law requires inter alia that the state is obliged to comply with judicial orders against it (Herrmann v Germany)

 

Principle of a legitimate aim

The interference with the right to property has to pursue a legitimate aim: According to the second sentence of article 1 of protocol 1 deprivations of property are only allowed if they are in the public interest and the second paragraph provides that the control of use of property has to be in accordance with the general interest. The Court reads these provisions together as establishing one principle that interferences with the right to property have to serve a legitimate aim. It has also inferred the principle of a legitimate aim from article 18 ECHR, which provides that limitations on rights foreseen in the Convention may only be used to the ends for which they are prescribed (Beyeler v Italy, para 111).

In contrast to articles 8 – 11 ECHR, article 1 of protocol 1 does not contain a catalogue of objectives which may justify interferences. The Court ascertains on a case by case basis whether the interference with the right to property pursues a legitimate aim. Member states enjoy a wide margin of appreciation when deciding which aim is legitimate.

 

Principle of a fair balance

The principle of a fair balance requires that the interests of the individual affected by measure interfering with the right to property have to be pondered with the interests of the general public. The interference must not impose an excessive or disproportionate burden on the individual (Valkov v Bulgaria)

Content:

 

Text

 

I)                 Introduction/Overview

1)      Relevance

2)      Drafting history

3)      Structure

II)               Property

                       1)     Overview

                       2)     Pension entitlements 

                       3)     Deposits in bank accounts

 

Text:

Protection of property

(1) 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.

(2) 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.

 

  1. Introduction/Overview

  1. Relevance

The right to property is enshrined in article 1 of Protocol 1 to the ECHR. It is among the most frequently violated Convention rights, third only to the right to speedy trial and the right to fair trial. As of 1 January 2010, 14.58% of all judgment in which the European Court of Human Rights found a violation of the ECHR concerned the right to property; 26. 37 percent regarded the length of proceedings under article 6 and 21.10 % the right to a fair trial under article 6

 

  1. Drafting history

The right to property is not embodied in the Convention, but was added in the First Protocol to the Convention, which was opened for signature in 1952 and entered into force in 1954.

In the process of drafting the Convention the inclusion of the right to property had been the subject of much debate. The ECHR was initially conceived as an early warning mechanism against totalitarian tendencies in Europe. In the states which comprised the Council of Europe at the time when the Convention was drawn up, democratic institutions were well-developed and stable, yet Hitler’s rise to power had shown how democracy and freedom could be abolished in incremental steps. The member states sought to ensure that the beginning of similar developments would not go unnoticed in future. A catalogue of fundamental democratic rights and an international supervisory mechanism would function as a detector of totalitarian tendencies in any of the member states, alerting the other states and enabling them to react in a timely fashion. Accordingly, the Convention should enshrine fundamental democratic rights. The authors who developed a draft of the Convention on behalf of the Consultative Assembly (now: Parliamentary Assembly) of the Council of Europe considered that the right to property counted among those rights, because of its importance for personal liberty

But after the draft had been submitted to the Committee of Ministers, the Committee created its own group of experts. The right to property was removed from the catalogue of rights to be secured by the member states, partly due to concerns by the then socialist British government that it might impede the government’s agenda of socializing property and strengthen obligations entailed by ownership. Shortly after, the Convention was opened for signature without further discussion of the issue with the Consultative Assembly.

The failure to include the right to property in the Convention caused massive protests by the Parliamentary Assembly. As a reaction to this, talks about enshrining the protection of property resumed. The Committee of Ministers commissioned a group of experts to draft a Protocol to the European Convention on Human Rights, which would provide for the protection of property (and for other rights, notably the right to vote). The result was Protocol 1 to the ECHR, which entered into force in 1954 (this short account of the drafting process follows the one presented by Ed Bates in ‘The Evolution of the European Convention on Human Rights’; for the sake of readability I have not used references in each paragraph or sentence)

 

  1. Structure

The European Court of Human Rights has held that article 1 of protocol 1 contains three rules:

  • The first one establishes the protection of property. It is contained in the first sentence of article 1 of protocol 1 ECHR (‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’)

 

  • The second rule concerns the deprivation of property. It sets out requirements and general principles for expropriations and is laid down in the second sentence of article 1 of protocol 1 (‘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 third rule deals with the control of use of property. It clarifies that obligations, such as tax duties, may be tied to property in the interest of the public. This rule is contained in the second paragraph of article 1 of protocol 1 (‘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.’)

 

While it is longstanding jurisdiction of the Court that article 1 of protocol 1 contains three rules, the Court has reiterated at the same time that these three rules should not be viewed as isolated but rather as forming one concept of property protection: The enjoyment of possessions is guaranteed, but this guarantee is not without limits. On the other hand, when it comes to restricting the right to property it needs to be borne in mind that property is in principle protected under article 1 of protocol 1 and rule 2 and three have to be construed in light of this principle (Beyeler v Italy)

The approach taken by the European Court of Human Rights when examining cases concerning the right to property is not always the same: After clarifying that article 1 of protocol 1 is applicable, the Court sometimes establishes whether the measure in question constitutes a deprivation of property or rather falls in the ambit of control of use (see for example Suljagic v Bosnia and Herzegovina). In other cases, the Court does not draw this distinction but simply states that it will scrutinize the measure in light of article 1 of protocol 1 and the principles that govern the right to property (Beyeler v Italy, para 106; Broniowski v Poland, (Grand Chamber) para 136)

The ECtHR has established three main principles applying to the protection of property:

 

Principle of lawfulness

The Court has reiterated that it is the most important requirement of article 1 of protocol 1 that any interference by a public authority with the right to peaceful enjoyment of possessions should be lawful (Saliba v Malta, para 37). The principle of lawfulness requires that each infringement upon the right to property have a basis in domestic law. This legal basis has to be accessible, sufficiently precise and foreseeable. It also requires that the law making provision for the interference with the peaceful en and in accordance with the rule of law as a general concept inherent in all articles of the Convention. The fundamental principle of the rule of law requires inter alia that the state is obliged to comply with judicial orders against it (Herrmann v Germany)

 

Principle of a legitimate aim

The interference with the right to property has to pursue a legitimate aim: According to the second sentence of article 1 of protocol 1 deprivations of property are only allowed if they are in the public interest and the second paragraph provides that the control of use of property has to be in accordance with the general interest. The Court reads these provisions together as establishing one principle that interferences with the right to property have to serve a legitimate aim. It has also inferred the principle of a legitimate aim from article 18 ECHR, which provides that limitations on rights foreseen in the Convention may only be used to the ends for which they are prescribed (Beyeler v Italy, para 111).

In contrast to articles 8 – 11 ECHR, article 1 of protocol 1 does not contain a catalogue of objectives which may justify interferences. The Court ascertains on a case by case basis whether the interference with the right to property pursues a legitimate aim. Member states enjoy a wide margin of appreciation when deciding which aim is legitimate.

 

Principle of a fair balance

The principle of a fair balance requires that the interests of the individual affected by measure interfering with the right to property have to be pondered with the interests of the general public. The interference must not impose an excessive or disproportionate burden on the individual (Valkov v Bulgaria)

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