The right COUNCIL CONSEIL OF EUROPE DE L’EUROPE to property A guide to the implementation of Article 1 of Protocol No. 1 to the European Convention on Human Rights Monica Carss-Frisk Human rights handbooks, No. 4 HR handbook 4_rp1.pmd 49 02/07/2003, 16:00 The right to property A guide to the implementation of Article 1 of Protocol No. 1 to the European Convention on Human Rights Monica Carss-Frisk Human rights handbooks, No. 4 HR handbook 4_rp1.pmd 1 02/07/2003, 16:00 Human rights handbooks series o Handbook No. 1: The right to respect for Précis n 1: Le droit au respect de la vie private and family life. A guide to the privée et familiale. Un guide sur la mise en implementation of Article 8 of the European œuvre de l’article 8 de la Convention Convention on Human Rights (2001) européenne des Droits de l’Homme (2003) o Handbook No. 2: Freedom of expression. Précis n 2: La liberté d’expression. Un guide A guide to the implementation of Article 10 sur la mise en œuvre de l’article 10 de la of the European Convention on Human Convention européenne des Droits de Rights (2001) l’Homme (2003) o Handbook No. 3: The right to a fair trial. Précis n 3: Le droit à un procès équitable. A guide to the implementation of Article 6 Un guide sur la mise en œuvre de l’article 6 of the European Convention on Human de la Convention européenne des Droits de Rights (2001) l’Homme (2002) o Handbook No. 4: The right to property. Précis n 4: Le droit à la propriété. Un guide A guide to the implementation of Article 1 sur la mise en œuvre de l’article 1 du o of Protocol No. 1 to the European Protocole n 1 à la Convention européenne Convention on Human Rights (2001) des Droits de l’Homme (2003) o Handbook No. 5: The right to liberty and Précis n 5: Le droit à la liberté et la sûreté de security of the person. A guide to the la personne. Un guide sur la mise en œuvre implementation of Article 5 of the European de l’article 5 de la Convention européenne Convention on Human Rights (2002) des Droits de l’Homme (2003) Directorate General of Human Rights o Handbook No. 6: The prohibition of torture. Précis n 6: L’interdiction de la torture. Council of Europe A guide to the implementation of Article 3 Un guide sur la mise en œuvre de l’article 3 F-67075 Strasbourg Cedex of the European Convention on Human de la Convention européenne des Droits de Rights (2003) l’Homme (2003) © Council of Europe, 2001 Digital Imagery © 2001 PhotoDisc, Inc. The opinions expressed in this publication are those of the author and do not engage the responsibility of the Council of Europe. They should not be regarded as placing upon the legal instruments mentioned in it any official interpretation First impression, November 2001 capable of binding the governments of member states, the Council of Europe’s statutory organs or any organ set up by Reprinted August 2003 virtue of the European Convention on Human Rights. Printed in Germany HR handbook 4_rp1.pmd 2 02/07/2003, 16:00 Contents I Overview . 5 IV Justifying an interference Introduction . 5 with the right to property . 26 Broad overview of the right: . 6 The public or general interest . 26 Scope . 6 Proportionality . 31 The three rules . 7 Taxing measures . 36 Justification: permissible interferences Compensation . 37 with property . 8 Legal certainty . 40 The questions to be asked . 9 V Other issues . 44 II The scope of the right to property . 10 Reading Article 1 of Protocol No. 1 “Autonomous” concept of what is a “possession” 17 with Article 14 . 44 No guarantee of the right to acquire property Continuing violations . 44 in the future . 18 Application of the right to property as between The property of corporations . 19 private parties . 45 III The three rules . 21 The second rule . 21 The third rule . 24 The first rule . 24 The significance of the three rules analysis . 25 3 HR handbook 4_rp1.pmd 3 02/07/2003, 16:00 4 HR handbook 4_rp1.pmd 4 02/07/2003, 16:00 I Overview Introduction 1. Article 1 of Protocol No. 1 to the European Convention on Human Rights guarantees the 1 right to property. 2. It provides: “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 sub- ject 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 at it deems necessary to control the use of property in ac- cordance with the general interest or to secure the pay- ment of taxes or other contributions or penalties.” 3. The Convention is not alone among interna- tional human rights instruments in recognising 2 1 Marckx v. Belgium, A31 (1979). the right to property. The inclusion of the right 2 The Universal Declaration of Human Rights provides, for in the European Convention, however, was con- example, that “1. Everyone has the right to own property troversial. The United Kingdom and Sweden, in alone as well as in association with others. 2. No one shall be arbitrarily deprived of his property.” (Cf. the Interna- particular, were concerned as to whether in- tional Covenant on Civil and Political Rights, where the cluding the right to property in the Convention right has not been included). might place too much of a fetter on the power 3 See Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (1995), p. 516. of States to implement programmes of nation- 5 HR handbook 4_rp1.pmd 5 02/07/2003, 16:00 alisation of industries for political and social 3 4 See, in particular, the purposes. The formulation that was ultimately Broad overview of the right 4 second paragraph of Arti- adopted provides a qualified right to property. cle 1 of Protocol No. 1. 4. The State accordingly has a wide margin of 5 As to the concept of “mar- 5 Scope gin of appreciation”, see appreciation in implementing social and eco- 6. The first thing to bear in mind when consider- paras. 94 ff. nomic policies that have the effect of interfer- 6 James v. the United King- 6 ing with the right to property. But this does not ing Article 1 of Protocol No. 1 is that the con- dom, A98 (1986), para. 46. mean that the Court has no role to play in as- cept of property, or “possessions”, is very broadly interpreted. It covers a range of eco- 7 A98 (1986). sessing the legitimacy of such an interference. 8 See, for example, As the European Court of Human Rights ob- nomic interests. The following have been held Sporrong and Lonnroth 7 v. Sweden, A52 (1982); served in James v. the United Kingdom: to fall within the protection of Article 1: mov- able or immovable property, tangible or intan- Hentrich v. France, …although the Court cannot substitute its own assess- A 296-A (1994); Holy ment for that of the national authorities, it is bound to gible interests, such as shares, patents, an Monasteries v. Greece, A 301-A (1994); Pressos review the contested measure under Article 1 of Protocol arbitration award, the entitlement to a pen- sion, a landlord’s entitlement to rent, the eco- Compania Naviera SA No. 1 and, in so doing, to make an inquiry into the v. Belgium A332 (1995); facts with reference to which the national authorities nomic interests connected with the running of Aka v. Turkey 1998-VI (1998); Papachelas acted. (para. 46) a business, the right to exercise a profession, a legitimate expectation that a certain state of v. Greece (25 March 5. Particularly in recent years, there have been 1999); Brumarescu affairs will apply, a legal claim, and the clientele v. Romania (28 October many cases in which the European Court of 9 of a cinema. 1999); Immobiliare Saffi Human Rights has found that the State has ex- v. Italy (28 October ceeded its margin of appreciation and has vio- 7. But the protection of Article 1 of Protocol 1999); Spacek v. the lated the right to property guaranteed by No. 1 does not apply unless and until it is pos- Czech Republic (9 Nov- 8 ember 1999); Beyeler Article 1 of Protocol No. 1. sible to lay a claim to the property concerned: v. Italy (5 January 2000); it is only existing property and not the right to Chassagnou v. France acquire property in the future which is pro- (29 April 2000); Carbonara and Ventura tected. It follows that an expectation to inherit v. Italy (30 May 2000); property in the future, for example, will not be Former King of Greece protected under Article 1. and Others v. Greece (23 November 2000). 8. It is important to bear in mind that corporate 9 For a detailed considera- bodies, as well as natural persons, may invoke tion of the case-law on 6 HR handbook 4_rp1.pmd 6 02/07/2003, 16:00 10 Article 1 of the Protocol. of the properties complained to the European Court of Human Rights under Article 1 of Proto- The three rules col No. 1. They had received no compensation for the time when their properties were affected 9.