13. Protection of property under Article 1 of Protocol 1

Question 1

Hows the structure of art. 1 of protocol 1?

Answer 1

• The structure in the article is similar to article 8-11.
o There is a general right to a peaceful enjoyment of possessions. Interferences can however be justified on the conditions set out in the article which include references both to the “public interest” and the “general interest”. = this is the test of proportionality.

Question 2

The court has come to approach the protection of property rights using the same methodology as in 8-11, that is..

Answer 2

The court has said, that the article comprises three distinct rules:
o Everyone is entitled to peaceful enjoyment of their possessions.
o Deprivation of possessions is subject to certain conditions.
o States are entitled to control the use of property where it

But these are not distinct rules, since the second and the third rule relate to interferences with the peaceful enjoyment of possessions which may be justified in the general interest.

Question 3

What is the positive obligation?

Answer 3

The court has concluded that there was an obligation on states to take practical steps to avoid loss of property.

Question 4

A distinction should be drawn between the positive obligations to protect life and to protect property - and what is that?

Answer 4

Where there is a risk to life, the authorities must do everything to mitigate the risk, but where the risk is of destruction of property, the authorities enjoy a wider margin of appreciation.

Question 5

Defining possessions

The basic approach

Answer 5

The basic approach
• Possessions (besiddelse) = very broad range of property rights. The term has an autonomous meaning - it extends beyond physical goods, and covers a wide range of rights and interests which be classified as assets (aktiver).
• Both real and personal property are within the notion of possessions, but the list extends far beyond to a list of things which have an economic value.
o Possessions examples: company shares, a patent, domain name, goodwill, some licence (not driver licence), fishing rights and so on (page 551-552).

Question 6

Defining possessions

Leases and licences to occupy property

Answer 6

• Rights flowing from leases are accepted as possessions.

* The court has drawn a narrow distinction between the basis on which individuals occupy property as their homes.

Question 7

Defining possessions

Social security payments and pensions

Answer 7

In principle, social insurance entitlements may be considered as property rights under certain condition

• Entitlements arising under pension and social security schemes have proved difficult to classify - the position were for some time unclear. A distinction had been drawn in the case-law between benefits which were paid on the basis of contributions (bidrag), and those which were paid without reference to contributions. But the case-law did not always seem to maintain this distinction.
• The court concluded that, whenever persons can assert a right to a welfare benefit under the national law, article 1 of protocol 1 applies.
• The article is only applicable, where national law provides for an entitlement to a social security benefit, and the applicant satisfies the legal conditions set down for the granting of a particular benefit.

Question 8

Defining possessions

Legal claims, assets and legitimate expectations

Answer 8

• Various types of legal claims have been treated as possessions. Thus a judgement debt will be a possession, so that quashing the judgment after it has become final will constitute an interference with the peaceful enjoyment of possessions.

Question 9

Deprivation of property

What constitutes deprivation?

Answer 9

• The essence of deprivation of property is the extinction of the legal rights of the owner.
o The court will examine the realities of the situation in order to determine whether there has been a de facto expropriation. An interference which does not constitute a formal or de facto expropriation may nevertheless constitute means of control of the property which falls within the article 1 of protocol 1. An example is where a state subjects property to a continuing tenancy (lejemål) at terms set by the state.

Question 10

Deprivation of property

Destruction

Answer 10

• Destruction of property plainly constitutes a deprivation of property.

Question 11

Deprivation of property

Expropriations

Answer 11

• As already noted, no formal expropriation is required for a deprivation of property to arise. But the distinction between deprivation and interference will be subtle.
o For a de facto deprivation through expropriation to arise, there must effectively be an extinctions of property rights.

Question 12

Deprivation of property

Temporary or provisional deprivation

Answer 12

• Temporary seizures do not constitute deprivations of property, though they may well constitute controls on the use of property seized.
o Example: the material seized was a book which was considered to be obscene.

Question 13

Deprivation of property

Conditions for permitted deprivations

Answer 13

• A deprivation falling within the first paragraph in article 1 of protocol 1 must meet 3 conditions to be justifiable under the provision:

1. The measure providing for the deprivation must be in accordance with the conditions provided for by national law,
   i. The law must be precise and foreseeable in its consequences, and the deprivation must be surrounded by appropriate procedural guarantees.
   ii. Any which is in breach of national law will amount to a violation of article 1 of protocol
3. The general principles of international law must be respected,
   i. = which require that non-nationals are protected against arbitrary expropriations and in the case of lawful expropriations, are entitled to compensation for the loss of their property. The rule provides no protection for nationals of a state deprived of property by the state.
4. The deprivation must be in the public interest, and this will require a balancing of the public interest against individual rights.
   i. In property cases, there is almost a presumption that a national measure is in the public interest.

Question 14

The issue of compensation

Answer 14

• Where there has been a deprivation of property, there is an expectation that compensation will be paid if the taking is to constitute a fair balance between the individual interest and the general interest, and not to impose an excessive burden on the individual. A total lack of compensation will be justifiable only in exceptional cases.
• The court has indicated that legitimate objectives in the public interest may result in less than full compensation, and the protection of the historical and cultural heritage has been accepted as one such objective. But the scheme for determining compensation must be even-handed between the state and the individual.
• Consideration of individual circumstances will not, however, always be a required feature of the calculation of compensation.
• Long delays in payment of compensation, particularly where there is a high inflation or an inadequate payment of interest in the late payment, will also impose an excessive burden on the individual, that can lead to a violation.

Question 15

Restitutions cases

Answer 15

• First, the court will only be competent to examine applications of these cases to the extent that they relate to events occurring after the entry into force of the convention for the respondent state.
• Secondly, where there is a procedure in national law for seeking recovery, those proceedings will be taken into account in determining whether there has been an interference with the applicant’s property rights.
• The mere hope of recognition of a former property right is not enough. Furthermore where the procedure for recovery of property is conditional, failure to fulfil that condition will extinguish any claimed property right.
• An excessive delay in paying compensation awarded for the nationalisation of property will also engage article 1 protocol 1 since it constitutes an interference with the right to a peaceful enjoyment of possession. Lack of finds was not a justification for the delay in meeting awards of compensation.

Question 16

Controlling the use of property

SCOPE

Answer 16

• The second paragraph of article 1 protocol 1 preserves the power of the state to control the use of property whether in general interest of “to secure the payment of taxes or other contributions of penalties”. Many of the earlier discussed examples on which constitutes a deprivation of property are examples of control on the use of property. Page 571.
o The court also regards measures of confiscation, which amount to a deprivation of property, as also constituting control of the use of the property.
o This will involve consideration of whether a fair balance has been struck in confiscating the property between the interests of the community and respect for peaceful enjoyment of possessions.

Question 17

Justifying the controls

A control must meet three conditions to be justifiable under the provision:

Answer 17

A control must meet three conditions to be justifiable under the provision:
• The measure which constitutes the interference must have a basis in national law, which will include EU law.
• Where relevant, the court may also examine a measure in the light of international law.
• A fair balance test between public interest against individual rights.

• Later case-law placed greater emphasis on the need to secure a fair balance between the individual interest and the general interest, though it has been acknowledged that a wide margin of appreciation will be accord to the states.
• However, the court has noted, that the proportionality test under article 1 of protocol 1 and the proportionality test under the right to private life under article 8 (2) are not necessarily “co-extensive” (sammenfaldende).

• In summary three conditions need to be satisfied for a control on the use of property to be permissible under article 1:
o The measure must have the character of law
o The measure must be in the general interest, or be for the purpose of securing the payment of taxes or other contributions or penalties, and
o The measure must be deemed necessary by the state.

Question 18

Other interferences with peaceful enjoyment of possessions (residual rule)

Answer 18

• Although this right is guaranteed in the first sentence of the article, the practice of the court is to consider first whether there has been a deprivation, and then whether there has been a control on the use of property before considering whether there has been some other interference with the peaceful enjoyment of possessions.
• The earlier case-law in which certain measures were considered to fall within this head would not almost certainly be considered as measures of control of the use of property. This is because the earlier case-law on the second paragraph of article 1 did not require the state to show that the measure of control struck a fair balance between the individual and the collective interest.
o For example, the system of expropriation permits was considered to be an interference with the peaceful enjoyment of possessions, where not it would probably be regarded as a measure for the control of the use of property.
• In determining whether an interference with the peaceful enjoyment of possession is permissible, the court now applies the same test as it has developed in relation to cases involving deprivation of property, though this is articulated in somewhat different terms.

Question 19

concluding remarks

Answer 19

• Modern case-law takes a very similar approach to all forms of interferences with property rights.

Question 20

Sporrong v Sweden 1982

Other interferences with peaceful enjoyment of possessions (residual rule)

Answer 20

For example, the system of expropriation permits in issue in Sporrong and Lönnroth v Sweden was considered to be an interference with the peaceful enjoyment of possessions, whereas now it would probably be regarded as a measure for the control of the use of property.

Question 21

James v UK 1986

legitimate aims

Answer 21

“47. James The aim of the 1967 Act, as spelt out in the 1966 White Paper, was to right the injustice which was felt to be caused to occupying tenants by the operation of the long leasehold system of tenure. The Act was designed to reform the existing law, said to be “inequitable to the leaseholder”, and to give effect to what was described as the occupying tenant’s “moral entitlement” to ownership of the house. Eliminating what are judged to be social injustices is an example of the functions of a democratic legislature. More especially, modern societies consider housing of the population to be a prime social need, the regulation of which cannot entirely be left to the play of market forces. The margin of appreciation is wide enough to cover legislation aimed at securing greater social justice in the sphere of people’s homes, even where such legislation interferes with existing contractual relations between private parties and confers no direct benefit on the State or the community at large. In principle, therefore, the aim pursued by the leasehold reform legislation is a legitimate one.”

The Court does not find that such political considerations as may have influenced the legislative process, socio-economic legislation being bound to reflect political attitudes to a greater or lesser degree, precluded the objective pursued by the 1967 Act from being a legitimate one “in the public interest”.

Question 22

What is art. 1 of protocal no 1?

Answer 22

Article 1 of Protocol No. 1 guarantees the right to property. The regonision of the right to proberty is not mentioned other places.

But the formulation eventually adopted by the first Protocol provides a rather qualified right to property, allowing the State a wide power to interfere with that right.

Question 23

What does art. 1 og p1 protect?

Answer 23

Article 1 of P1 protects individuals or legal persons from arbitrary interference by the State with their possessions. It nevertheless recognises the right of the State to control the use of or even deprive of property belonging to individuals or legal persons under the conditions set out in that provision.

Question 24

Whos able to demonstrate existens of the right to property?

Answer 24

This article is the only article of the Convention which expressly mentions “legal persons”. Every applicant, whether a natural or legal person, must be able to demonstrate the existence of a right to property at issue in order to qualify as a “victim” under the Convention

Question 25

Negative obligation

Answer 25

The essential object of this provision is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions (negative obligations).

Question 26

When considering whether there has been a violation of Ar1. 1 of P1, the Court shall firstly examine..

Answer 26

whether there exists any property right (a possession) falling within the ambit of that provision. The second step is to consider whether there has been interference with that possession and, ultimately, the nature of that interference (i.e. which of the three rules applies). It should, however, be borne in mind that the three rules are not distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principles enunciated in the first rule.